The federal Department of Education released a notice of proposed rulemaking earlier this month addressing gender identity and participation in athletics. The long-anticipated proposed regulation, which would amend Title IX regulations, follows two years of outreach to various stakeholders, including the June 2021 nationwide public hearing assembled by the department’s Office of Civil Rights involving live testimony from over 280 individuals and submission of more than 30,000 written comments.
The department states this process provided valuable information regarding the desire from many —including schools, students, parents, and coaches — for clarity on the rules surrounding transgender students’ participation in athletics. The proposed regulation shows the department following through on its word to strengthen protections for transgender athletes while also considering student safety and fairness.
What Is Title IX?
Title IX of the Education Amendments of 1972 prohibits covered educational institutions from engaging in discrimination on the basis of sex in educational programs and activities. In pertinent part, it reads:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]
20 U.S.C. § 1681. Despite the lack of a specific reference to sports within its language, Title IX and its corresponding regulations have been pivotal in advancing the interests of women and girls in athletics, calling for covered institutions to provide female athletes with equal athletic opportunity as their male counterparts.
Proposed Language and Impact on Transgender Athletes
Title IX’s athletic regulation is found at 34 C.F.R. § 106.41. If adopted in its current form, the new regulation would be added at § 106.41(b)(2), and would read as follows:
If a recipient adopts or applies sex-related criteria that would limit or deny a student's eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.
In other words, any sex-related eligibility criteria that would interfere with a transgender student’s ability to participate on a team consistent with their gender identity would need to be supported by age- and sport-specific criteria closely tied to accomplishing an “important educational objective.” The department has provided only two examples of qualifying educational objectives — “fairness in competition” and “preventing sports-related injury”— but these are not exhaustive.
The department’s press release about the proposed regulation highlights the benefits of team sports for all children, noting the value of learning about teamwork, leadership, and physical fitness. The Biden administration states that its regulation supports the Title IX non-discrimination requirement while still allowing schools to achieve these objectives.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” Secretary of Education Miguel Cardona said in a statement. “Being on a sports team is an important part of the school experience for students of all ages. . . . Today’s proposed rule is designed to support Title IX's protection for equal athletics opportunity."
Interaction With State Laws Banning Transgender Students’ Participation on Teams Corresponding With Their Identity
More than 20 states have enacted categorical bans precluding transgender students (at various levels, ranging from K-12 to collegiate, depending on the state law) from participating in sports teams consistent with their gender identity. If the proposed regulation is finalized as currently written, most of these state bans would violate Title IX. While it is unlikely the department would backtrack from its stated position that categorical bans are unlawful, the department could still modify the language of the current proposal significantly in the process of developing a final rule.
What’s in the Pipeline?
The notice of proposed rulemaking is likely just the first step in what will be a protracted process toward a final, enforceable rule. A 30-day comment period will begin on the date the regulation is published in the Federal Register. Further, once a final regulation is published, it will likely be challenged through litigation, which could further delay a final resolution. Until the regulation is finalized, covered institutions are not required to take any steps to comply. In the interim, however, schools can prepare by reviewing any policies in place on transgender participation in athletic programming, and evaluating any changes that might be required if and when the rule becomes final.
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