On April 6, the U.S. Department of Education released a notice of proposed rulemaking on athletic eligibility under Title IX to advance Title IX’s longstanding goal of ensuring equal opportunity in athletics.
During the two years of outreach to stakeholders to develop this proposed rule, the USDOE heard repeatedly that many schools, students, parents, and coaches face uncertainty about when and how transgender students can participate in school sports, particularly because some states have chosen to adopt new laws and policies on athletics participation that target transgender students. The notice of proposed rulemaking, if adopted as a final rule, would provide much needed clarity for students, parents, and coaches.
In a fact sheet, the USDOE states that the proposed rule affirms that students benefit from the chance to join a school sports team to learn about teamwork, leadership and physical fitness. The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are. The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation. The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages,” said U.S. Secretary of Education Miguel Cardona. “Beyond all the benefits to physical and mental health, playing on a team teaches students how to work hard, get along with others, believe in themselves and build healthy habits that last a lifetime. Today’s proposed rule is designed to support Title IX’s protection for equal athletics opportunity. We welcome and encourage public comment on the proposed regulation and will continue working to ensure Title IX’s effective protection for all students.”
The USDOE invites and encourages public comment. The public comment period will be for 30 days from the date of the NPRM’s publication in the Federal Register.
The proposed rule would apply to public K-12 schools, as well as colleges, universities, and other institutions that receive federal funding.
Under the proposed regulation, schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.
Instead, the USDOE’s approach would allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury. These criteria would have to account for the sport, level of competition, and grade or education level to which they apply. These criteria could not be premised on disapproval of transgender students or a desire to harm a particular student. The criteria also would have to 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 proposed regulation would recognize that differences in grade and education level, level of competition, and sports must be taken into account for any eligibility criteria that would restrict transgender students from participating on teams consistent with their gender identity.
The proposed regulation would be in the Title IX regulations at section 106.41(b)(2). It would read:
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.
Information about the public comment period:
The Department’s proposed Title IX regulation will be open for public comment for 30 days from the date of publication in the Federal Register.
The unofficial version of the proposed regulation is available here.
View the entire fact sheet related to these changes on the USDOE’s website.
