On April 6, 2023, the United States Department of Education (“ED”) issued a Notice of Proposed Rulemaking (the “NPRM”) related to Title IX of the Education Amendments of 1972 (“Title IX”). The NPRM, entitled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams,” establishes a framework for analysis of sex-related eligibility criteria for participation in sport.

What You Need to Know:

• Under the proposed amendment, schools receiving federal funding would be permitted to adopt or apply sex-related criteria for eligibility on male or female athletic teams, including some criteria that may limit or deny a transgender^[1] student’s ability to participate on the team consistent with their gender identity.
• However, in the event a school adopts or applies such criteria, the criteria must be substantially related to the achievement of an important educational objective and considered in the context of the particular sport, the level of competition at issue, and the grade or education level of the participants.
• Such criteria must also be designed to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied by the adoption of such criteria.
• Under the proposed rule, most sex-based restrictions on an elementary school level would be in violation of Title IX, while much broader nuance would be permitted on a secondary and post-secondary level, particularly in connection with elite athletic competition.
• The preamble anticipates a broad role for bodies like the National Collegiate Athletic Association (“NCAA”) in setting standards that will pertain to association member institutions.

Motivated by State- and Local-Based Variation

In the NPRM, ED explains that the proposed rule was motivated by developments in the state and local legal landscape pertaining to transgender student-athletes. In the preamble, ED opines that “current regulations are not sufficiently clear to ensure Title IX’s nondiscrimination requirement is fulfilled if a recipient adopts or applies sex-related criteria that would limit or deny students’ eligibility to participate on male or female athletic teams consistent with their gender identity,” as some states, including Indiana, West Virginia, and Idaho, “have adopted criteria that categorically limit transgender students’ eligibility to participate on male or female athletic teams consistent with their gender identity.”

In light of the participation of transgender student-athletes emerging as a political hot-button issue, OCR believes that the proposed rule will “clarify Title IX’s application to such sex-related criteria and the obligation of schools…that adopt or apply such criteria to do so consistent with Title IX’s nondiscrimination mandate,” and potentially diffuse the impact of such state and local legislative developments.

The Proposed Framework

Existing Title IX regulations do not bar sex-separated athletic teams. 34 C.F.R. § 106.41(b) permits such separation, with some exceptions, when “selection for such teams is based upon competitive skill or the activity involved is a contact sport.” As such, the law already permits denying individual students the opportunity to participate on a particular team on the basis of sex under some circumstances, such as when a school fields a team for one sex only in a contact sport.

The proposed rule would establish a framework for assessing when such exclusion is permissible by amending § 106.41(b) to provide:

“[I]f a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity, those 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.”

Substantially Related to an Important Educational Objective

Sex-restrictive criteria would not be “substantially related to the achievement of an important educational objective” if they had the objective of “communicating or codifying disapproval of a student or a student’s gender identity,” “excluding transgender students from sports,” or “requir[ing] adherence to sex stereotypes,” or if they were “solely for the purpose of administrative convenience.” Rather, schools must rely on non-pretextual justifications such as “fairness in competition” or “prevention of sports-related injury,” grounded in the particulars of the sport, the level of competition at issue, and the grade or education level of the participants.

This requires a nuanced analysis. For example, with respect to differences based on the sport at issue, OCR notes that schools “offer a wide selection of sports…[which] have unique rules and prioritize varied skills and attributes.” To have the same eligibility requirements in place for riflery or bowling as for gymnastics or swimming may not be justifiable. With respect to level of competition, similarly, it would not be appropriate to have the same standards apply to “no-cut” teams that allow all students to join as to elite competition. And, with respect to grade or educational level, schools would have to consider the fundamental purpose of the athletics opportunity, reflecting the reality that for younger students, for example, encouragement to participate in sport is not solely, or even primarily, for the purposes of competition, but rather to encourage children to get physical activity, develop leadership skills, and learn about being part of a team.

Minimizing Harm to Students Who Would be Excluded

OCR asserts that “Title IX generally prohibits a recipient from excluding students from an education program or activity on the basis of sex when the exclusion causes more than de minimis harm,” a point made clear in its July 2022 Title IX NPRM. Although OCR acknowledges that “[a] school policy of separating students on the basis of particular reproductive or other sex-based characteristics…will not materially harm the vast majority of students,” it also acknowledges that in some cases, students would be excluded, and those students would experience harms distinct from those such as a boy not being eligible to play on the girls’ volleyball team when the school does not offer a boys’ or coeducational team, such as students being “forced” to disclose that they are transgender, or having their transition negatively impacted.

Again, however, the proposal does not conclude that restrictive criteria are impermissible; rather, they must be, as described above, substantially related to the achievement of an important educational objective, and must also “be adopted and applied in a way that minimizes the harms caused to those students.” If criteria that would cause less harm and still achieve the important educational objective are available, the school “would not be permitted to adopt the more harmful criteria.”

Highest Impact Likely at the Secondary and Post-Secondary Level

Under the proposed rule, most sex-based restrictions on an elementary school level would be in violation of Title IX, while much broader nuance would be permitted on a secondary and post-secondary level, particularly in connection with elite athletic competition. Given the minimal differences in sex-based physical characteristics among elementary-aged children, the general lack of selectivity in young children’s athletic teams, and the emphasis on purposes other than competition for encouraging participation in sports, ED anticipates that “there would be few, if any, sex- related eligibility criteria applicable to students in elementary school that could comply with the proposed regulation,” while “at the high school and college level, schools’ application or adoption of sex-related eligibility criteria to ensure an important educational objective, such as fairness in competition in their athletic programs, may be more likely to satisfy the proposed regulation.”

As such, it is secondary and post-secondary schools that will be required to engage in the highly-specific kind of analysis described above. At the collegiate level, institutions can anticipate a critically important role for bodies like the NCAA and other athletic associations, with state athletic associations playing a similar role for their K-12 peers, as well as sport-specific organizations and associations. In the preamble, OCR takes care to acknowledge that in 2022, the NCAA “replaced its longstanding policy describing transgender students’ eligibility to participate on a male or female college athletic team in the NCAA with a sport-by-sport approach” which “calls for its member colleges and universities to follow the criteria for transgender students’ participation in college sports set by national bodies governing individual sports.” While it would not be correct to assert that schools can take no responsive action and simply wait to follow the lead of these external bodies, it is, it seems, safe to say that such bodies will assume a critical role in developments in this area as they unfold.

Steps to Take Now

Bearing in mind that this is a proposed—not final—rule, schools and school districts may wish to begin educating stakeholders about the proposed rule, establishing lines of communication with relevant athletic associations, and considering how the proposed framework would apply to the athletic opportunities the school or district offers.

Comments on the proposed rule may also be submitted via the Federal eRulemaking Portal. Schools and school districts are encouraged to take advantage of the opportunity to submit feedback on the proposal, including the specific “directed questions” identified by ED:

1. Whether any alternative approaches to the [] proposed regulation would better align with Title IX’s requirement for a recipient to provide equal athletic opportunity regardless of sex in the recipient’s athletic program as a whole;
2. What educational objectives are sufficiently important to justify a recipient imposing sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity and whether those objectives should be specified in the regulatory text;
3. Whether and how the permissibility of particular sex-related eligibility criteria should differ depending on the sport, level of competition, grade or education level, or other considerations;
4. Whether any sex-related eligibility criteria can meet the standard set out in the proposed regulation when applied to students in earlier grades, and, if so, the type of criteria that may meet the proposed standard for those grades;
5. How a recipient can minimize harms to students whose eligibility to participate on a male or female athletic team consistent with their gender identity is limited or denied by the recipient’s adoption or application of sex-related criteria; and
6. Whether regulatory text in addition to the text in the proposed regulation is needed to provide recipients with sufficient clarity on how to comply with Title IX’s prohibition on sex discrimination, including gender identity discrimination, in the context of male and female athletic teams, consistent with the principles and concerns identified in the discussion of proposed § 106.41(b)(2).

Finally, Saul Ewing’s K-12 and Higher Education practices will continue to monitor developments related to the proposed rule specifically, and this complex and evolving area of the law generally. 

^[1] With respect to intersex or nonbinary student-athletes, ED simply says that “the proposed regulation would provide an appropriate Title IX framework for analyzing…an intersex student’s eligibility to participate on a male or female team consistent with their gender identity,” and that, with respect to nonbinary students, schools must first address the threshold issue of “whether the criteria do, in fact, limit or deny a nonbinary student’s eligibility to [so] participate…to determine whether the proposed regulation would apply.”