On April 6, the Department of Education Office for Civil Rights (OCR) released its much-anticipated proposed Title IX rule on the eligibility of students for participation in athletic programs based on their gender identity. The proposed rule, which has garnered a great deal of attention over its application to transgender students, would prohibit schools and colleges that receive federal financial aid from categorically banning students from participating in sports programs based on their gender identity. At the same time, the proposed rule would provide some flexibility for schools and colleges to determine their own sex-related eligibility criteria for more competitive programs, provided that the criteria fit within the rule’s framework.  

While the draft document released by OCR contains 114 pages of preamble commentary, which provides an in-depth discussion and analysis of the background and language of the proposed rule, the rule itself is brief, proposing a short paragraph addition to the Title IX regulations at 34 CFR § 106.41, which pertains to athletics. 

The proposed provision would prohibit schools and colleges from enacting a one-size-fits-all ban on transgender students from participating on an athletic team based on their gender identity. The proposed rule does recognize the need for schools and colleges to consider nuanced factors such as the grade level of student athletes, level of competition, and eligibility requirements by sport governing bodies such as the NCAA. However, the proposed rule would require schools and colleges to balance these factors with consideration of the potential harm to students who are limited or denied participation in school sports because of their gender identity.  

As such, the proposed rule permits schools and colleges to adopt or apply “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” as long as the criteria is tailored to the particular sport, level of competition, and grade or education level of the students. Furthermore, any sex-related criteria restricting the participation of transgender students must fulfill both of the following requirements: 

  1. Be substantially related to the achievement of an important educational objective, and  
  1. Minimize harm to students who are limited or denied in their participation on a male or female team because of their gender identity.  

The proposed rule was released the same day that the U.S. Supreme Court turned down West Virginia’s request to overturn a decision by the Fourth Circuit Court of Appeals, which reinstated a lower court’s decision to block the state from enforcing a new law banning transgender girls from participating on female sports teams. The rule also follows a statement by Secretary of Education Miguel Cardona issued on March 31, Transgender Day of Visibility, reaffirming the Department of Education’s commitment to support transgender, non-binary, and gender non-conforming students from hostility in schools that “follows when politicians…use state laws to limit who they can be in our school communities.” 

The official proposed rule can be found in the Federal Register here. The Department of Education fact sheet summarizing the proposed rule can be found here. Public comments must be submitted at the Federal eRulemaking Portal on or before May 15, 2023.  

We remind everyone that this rule is not final and may continue to undergo further changes in response to public feedback. In addition, the proposed rule would not change existing requirements under Title IX for athletics programs (including the three-prong test), which schools and colleges receiving federal aid must continue to adhere to. As we noted in a previous post, OCR recently published three new resources reminding schools and colleges of their continuing obligations under Title IX to accommodate the athletic interests and abilities of all their students, provide equal opportunity in benefits, opportunities, and treatment for their sports teams, and not discriminate on the basis of sex in providing athletic scholarships and financial aid to students. 

We will continue to provide updates on the Title IX rulemaking process, so stay tuned and reach out to a member of our Title IX team if you have any questions.

Also authored by Jenny Lee, a law clerk at Franczek P.C.