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Department of Education’s Proposed Change to Its Title IX Regulations on Transgender Students’ Eligibility for Athletic Teams

April 10, 2023

On April 6, the U.S. Department of Education (“Department”) released a notice of proposed rulemaking on athletic eligibility under Title IX related to a transgender student’s ability to participate on athletic teams consistent with the student’s gender identity.

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 would provide schools with a framework for developing eligibility criteria that protect students from being denied equal athletic opportunity while giving schools the flexibility to develop their own participation policies. The proposed regulation would recognize the importance of minimizing harm to students whose participation on teams consistent with their gender identity would be limited or denied.

The current Title IX athletics regulation can be found at 34 C.F.R. § 106.41. The proposed regulation would be added as (b)(2), and current (b) would be redesignated as (b)(1).

The proposed regulation would be in the Title IX regulations in section 106.41(b)(2):

“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 proposed rule would apply to public K-12 schools, as well as colleges, universities, and other institutions that receive federal funding.

Schools would have to take into account the following considerations when developing a policy for athletic participation:

  1. Recognize differences among students and school sports teams depending on grade and education level.  For example, the Department expects that, under its proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity whereas considerations may be different for competitive high school and college teams.
  2. Recognize that school athletic teams vary in the level of competition. School athletic teams vary, with some that are very competitive, especially for high school and college students with advanced skills, and others, such as “no cut” teams, that allow all students to join and participate. Sex-related eligibility criteria that restrict students from participating consistent with their gender identity would have to reflect these differences in competition.
  3. Recognize that the types of sports offered vary widely and that sport governing bodies vary in their participation criteria.  Schools that seek to restrict students from participating consistent with their gender identity must take into account the nature of the sports to which the restriction would apply.

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.

A fact sheet released by the Department summarizing the proposed regulation is available here.

If you have any questions regarding these proposed changes to Title IX or would like to schedule Title IX training for your District, please contact Kara T. Rozin, or another member of the Clark Hill Education Group.

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