What you need to know about the Title IX proposed rule on athletic participation & gender identity

On April 6, 2023, the U.S. Department of Education (the “Department”) released a much anticipated Notice of Proposed Rulemaking titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams” (the “Athletics NPRM”).¹ The Athletics NPRM proposes an amendment to Title IX that aims to provide greater clarity to schools² seeking to adopt or apply sex-related criteria that would limit or deny a student’s ability to participate on an athletic team consistent with their gender identity.

Title IX prohibits schools from excluding individuals from participation in interscholastic, intercollegiate, club or intramural athletics solely on the basis of their sex, but permits schools to provide separate male and female athletic teams when sex-based selection criteria is based on competitive skill or if the activity is a contact sport (e.g., football, basketball, etc.).³

The proposed amendment would renumber Section 106.41(b) as § 106.41(b)(1) and create a new paragraph numbered § 106.41(b)(2). The new subsection would clarify that sex-based criteria determining athletic eligibility for each sport, level of competition and grade or education level, must:

1) be substantially related to the achievement of an important educational objective, and

2) minimize harm to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

“Sex-based criteria” would include any requirements that students submit to physical or medical examination or provide documentation of their sex assigned at birth, such as a birth certificate, passport, or driver’s license. Schools would need to demonstrate that the “sex-based criteria” had been implemented to achieve an “important educational objective.”

The requirement recognizes that “important educational objectives” will vary based on factors such as students’ educational level, the level of competition, and the type of sport. If the rule is finalized, schools would be prohibited from instituting “one-size-fits-all” athletic eligibility policies that categorically ban transgender students from participating on sports teams consistent with their gender identity. In other words, schools may not base their athletic eligibility criteria on overbroad sex-based generalizations or stereotypes that fail to account for the nature of a particular sport, the level of competition at issue, or the educational level of students to which the criteria applies.

To illustrate how this proposed rule works in reality, let’s focus on the grade and education level. The Department expects that schools who implement sex-related eligibility criteria at elementary grade levels could violate the proposed rule because the primary educational goals for youth in sports is to learn basic physical and emotional skills, such as hand-eye coordination and teamwork. On the other hand, the Department expects certain sex-related eligibility criteria to satisfy the proposed rule for sports played at higher educational levels, like on college and university varsity teams, where prevention of sports-related injury and fairness in competition become more salient education goals. Along with grade and education level, a school developing a participation policy with sex-based criteria would also need to tailor that policy to the competition level (varsity, intramural, club, etc.) and to the particular sport at issue, in order to minimize harm to ineligible students.

This NPRM will be open for public comment until May 15, 2023. Once the comment period closes, the Department will review the comments received and will either proceed with the rule as proposed, issue a new modified proposal or withdraw the proposal.