The Department of Education intends to amend its Title IX regulations, clarifying what sex-based criteria schools can use to establish eligibility for athletic teams. In mid-April, the Department published a notice of proposed rulemaking. More than 150,000 comments poured in afterwards. Now the Department will consider the public comments and promulgate a final rule. Still, the proposed rule offers relevant insight as to where the Department is headed.

Title IX prohibits sex discrimination in educational activities and programs that receive federal funding. Consequences for violating Title IX are serious — recipients risk losing their federal funding. The new rule would clarify when recipients violate Title IX by limiting or denying a student’s eligibility to participate on a male or female athletic team consistent with the student’s gender identity.

Under the proposed rule, categorical bans on transgender athletes would be prohibited. Rather, sex-based eligibility criteria must be assessed as to “each sport, level of competition, and grade or education level.” To pass muster, any limit or denial of students’ eligibility to participate on an athletic team consistent with their gender identity must: “(i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to” affected students.

Substantially Related to the Achievement of an Important Educational Objective

Under the rule, to be “substantially related,” there must be a direct and substantial relationship between the asserted objective and the means used to achieve that objective. The Department offered examples of potential important educational objectives, including prevention of sports-related injuries and fairness in competition. It further emphasized that competition is of greater importance at the high school and collegiate level. The Department also cautioned against relying on overly broad generalizations or assumptions, and it called out objectives that would not satisfy the requirement — such as administrative ease or when the asserted objective is a pretext for a discriminatory purpose.

Minimize Harms to Affected Students

If a recipient can establish that its sex-related eligibility criteria substantially relates to the achievement of an important educational objective, the recipient must also show that the criteria minimizes harm to those students affected. In other words, the recipient must not reasonably be able to adopt a less harmful means of achieving the objective. Beyond limiting or denying eligibility, other harms include forcing individual students to disclose that they are transgender, the invasion of privacy associated with verifying sex, and communicating disapproval of transgender students.

Regardless of whether the final rule mirrors the proposed rule, Warner’s Higher Education Industry Group attorneys will be ready to ensure your policies are compliant. For questions about this proposed rule or otherwise navigating Title IX, contact Kelsey Dame, Jason Byrne or your Warner attorney.

Warner Summer Associate Joshua Eggert contributed to this eAlert.