On Thursday, April 6, 2023, the U.S. Department of Education released a proposed change to the Title IX regulations for transgender student-athletes. Title IX of the Education Amendments of 1972 is a federal civil rights law that prohibits sex-based discrimination and applies to public K-12 schools, as well as colleges, universities, and other institutions that receive federal funding (referred to together here as “schools”).
The proposed change would amend the Title IX athletics regulation at 34 C.F.R. 106.41, which requires schools to provide equal athletic opportunities for students regardless of sex. Section 106.41(b) addresses when schools may have separate teams based on sex. The proposed change would add new Section 106.41(b)(2), and the current Section (b) would be designated as (b)(1).
The proposed regulation at Section 106.41(b)(2) states 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.”
The Department released a Fact Sheet with the proposed regulation, which provides the Department’s rationale for the proposed change and direction on the factors schools would have to consider when developing policies for student athletics participation. In sum, the proposed regulation would prohibit schools from categorically banning transgender student participation on athletic teams consistent with their gender identity. The Department makes clear that a “one-size-fits-all” policy that bans transgender students from participating on athletic teams consistent with their gender identity across all sports, age groups, and levels of competition would not satisfy the proposed regulation. Such a policy would constitute sex discrimination in violation of Title IX.
Instead, schools would be allowed to develop policies with athletic team eligibility criteria that:
- “serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury”;
- “account for [the nature/type of] the sport, level of competition, and grade/education level to which they apply”;
- are “not premised on disapproval of transgender students or a desire to harm a particular student”; and
- “minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”
Under the proposed framework for developing eligibility criteria, the Department expects elementary school students generally would be able to participate on school sports teams consistent with their gender identity, and that it would be “particularly difficult for a school to justify excluding students immediately following elementary school from participating consistent with their gender identity.” The Department explained that this expectation reflects the nature of elementary school activities, which serve as an introduction to new activities and as an opportunity to learn basic skills in physical fitness, leadership, and teamwork through team sports.
On the other hand, for older students at the high school and college levels, limiting participation based on gender identity may be permitted, in some cases, if the above-listed criteria are met. However, the Department noted that especially at the high school and college levels, sex-related eligibility criteria that restrict transgender students from participating consistent with their gender identity would have to “enable the school to achieve an important educational objective, such as fairness of competition, and meet the proposed regulation’s other requirements.”
The Department will be accepting public comments on the proposed regulation (see page 116) for 30 days after its publication in the Federal Register. The proposed regulation was published in the Federal Register on April 13, 2023. Public comments are due on or before May 15, 2023. We will continue to monitor the rulemaking process, as well as other information that becomes available, including by K-12 interscholastic athletic governing bodies in Illinois (IHSA and IESA).
Finally, existing requirements regarding equal athletic opportunities for students regardless of sex remain in effect under Title IX. See the Department’s resources on equal athletic opportunities released in February 2023 here. We also are watching for the Department’s broader final Title IX regulations, expected in May 2023.
Contact an attorney in our Students/Special Education practice group with your Title IX questions.
