As a quick update for our education clients, the Biden administration purportedly plans to delay the release date of the Title IX final rule on transgender athletes until after the presidential election. While the Department of Education has yet to officially confirm the news, the Washington Post reported last week that individuals close to the Biden administration, speaking on condition of anonymity, informed the Post that the administration made a political decision not to move on the Title IX athletics rule before the election. 

OCR first released a draft of the Title IX athletics rule in April 2023, a companion to the comprehensive Title IX proposed rule on sexual harassment that was released back in June 2022. As we reported last year, the proposed Title IX athletics rule would prohibit schools and colleges that receive federal aid from categorically banning students from participating in sports programs based on their gender identity, thus directly challenging state bans on transgender athlete participation. However, the proposed rule would also provide some flexibility for schools to determine their own sex-related eligibility criteria for more competitive sports programs. 

As a note, the Office of Information and Regulatory Affairs (OIRA) timetable has not been updated yet for either proposed Title IX rule, which are still both listed with a final release date of March 2024. While we anticipate that the Title IX rule on sexual harassment, which moved to the final stage of review in February, may be released late spring or early summer, given the numerous delays that we have seen already, this timeline is far from certain. 

We will continue to closely monitor the progress of the Title IX proposed rules, so stay tuned for further updates.