ED Issues Proposed Title IX Regulation for Transgender Students Athletic Participation

Today, the U.S. Department of Education released its proposed regulation on eligibility for male and female athletic teams under Title IX. According to ED, the proposed regulation “aims to advance Title IX’s longstanding goal of ensuring equal opportunity in athletics and would provide clarity for students, parents, schools, and coaches on how schools that choose to adopt or apply sex-related eligibility criteria for male and female teams can do so consistent with Title IX.” A factsheet on the proposed regulation can be found here.

The language of the proposed regulation is 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 is only opening the comment period on the proposed regulation for 30 days meaning that superintendents would have until approximately May 10^th to comment on the regulation, which is an extremely short timeline for such a highly anticipated and controversial regulation. ED would like the regulation to go into effect for the upcoming 2023-2024 school year barring no successful legal challenges by Republican Attorney Generals and other stakeholders.

In direct contrast to a flurry of state legislation passed over the past three years that prohibits transgender women and girls from participating in sports consistent with their gender identity, ED’s proposed Title IX athletics regulations would bar districts from adopting or enforcing a policy that categorically bans transgender students from participating on teams consistent with their gender identity. However, the Department of Education also acknowledges that “in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.”  This means that a district would be able to adopt or apply criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity if those criteria are substantially related to the achievement of an important educational objective.  The criteria must be related to important educational objectives, such as ensuring fairness in competition or preventing sports-related injury. For example, the school district should have to consider the grade and education level, level of competition and sport when determining transgender students’ participation.  

The Department has stated that they believe the proposed regulation would ensure elementary school students would generally 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. For older students, especially at the high school and college level, the Department expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases, when they enable the school to achieve an important educational objective, such as fairness in competition, and meet the proposed regulation’s other requirements.