On April 6, 2023, The United States Department of Education (“ED”) has issued a Notice of Proposed Rulemaking (“NPRM”) relating to Title IX of the Education Amendments of 1972 (“Title IX”). The NPRM, titled “Non-Discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Gender-Related Eligibility Criteria for Male and Female Sports Teams,” sets out a framework for analyzing gender-related eligibility criteria for participation in sports.
What you need to know:
- Under the proposed amendment, schools that receive federal funding would be allowed to adopt or apply gender-related criteria for eligibility to male or female sports teams, including some that might limit or reject transgender people.[1] The student’s ability to participate in the team consistent with their gender identity.
- However, if a school adopts or applies such standards, the standards must be closely related to the achievement of an important educational objective and taken into account in the context of the particular sport, the level of competition involved, and the grade or educational level of the participants.
- These standards must also be designed for Minimize harm to students whose opportunity to participate in a team that is compatible with their gender identity is limited or denied by adopting such standards.
- Under the proposed rule, most restrictions based on gender at the primary school level would be a violation of Section IX, while nuances would be permitted at the secondary and post-secondary levels, particularly with regard to elite athletic competition.
- The preamble foresees a broad role for bodies such as the National Collegiate Athletic Association (“NCAA”) in setting standards that relate to its member institutions.
Motivated by the difference based on the state and local
In the NPRM, the ED explains that the proposed rule was prompted by developments in the state and local legal landscape related to transgender student-athletes. In the preamble, the ED finds that “current regulations are not clear enough to ensure that the Title IX non-discrimination requirement will be met if a recipient adopts or applies gender-related norms that would restrict or reject students.” eligibility to participate on male or female sports teams consistent with their gender identity,” and some states, including Indiana, West Virginia, and Idaho,” have adopted “criteria that flatly limit the eligibility of transgender students to participate on male or female sports teams including corresponds to their sexual identity.
In light of the participation of transgender student-athletes that has emerged as a hot political issue, the Office for Civil Rights believes the proposed rule would “clarify the application of Title IX to such standards relating to gender and the obligation of schools … that adopt or apply such standards to do so in accordance with Title IX’s Non-Discrimination Mandate,” and is likely to publicize the impact of such state and local legislative developments.
proposed framework
Current Title IX regulations do not prohibit gender-segregated sports teams. Code of Federal Regulations 34 CFR § 106.41(b) Such segregation is permitted, with some exceptions, when “the selection of such teams is based on competitive skill or the activity in question is a contact sport.” As such, the law does allow individual students to be denied the opportunity to participate in a particular team on the basis of gender under some circumstances, such as when a school fields a team of only one gender in a contact sport.
The proposed rule would create a framework for assessing when such exclusion is permissible by amending Paragraph 106.41(b) to provide:
“[I]FA recipients adopt or apply gender-related criteria that would limit or deny a student’s eligibility to participate in a male or female sports team consistent with their gender identity, and such criteria shall be, for each sport, level of competition, degree or education level: (1) significantly associated with the achievement of an important educational goal, and (2) reduced harm to students whose opportunity to participate in a male or female team consistent with their gender identity is limited or denied.”
They are closely related to an important educational goal
Gender-restrictive norms would not be “intrinsically related to the achievement of an important educational goal” if their goalcommunicate or codify the denial of a student’s or student’s gender identity,” “exclude transgender students from sports,” or “require[ing] Adhere to sexual stereotypes”, or if it is “for the purpose of administrative convenience only”. Instead, schools should rely on nonsensical justifications such as “competition fairness” or “sports-related injury prevention”, based on the specifics of the sport, the level of competition The subject of dispute, and the grade or educational level of the sport.
This requires careful analysis. For example, regarding differences based on the sport in question, the OCR notes that schools “offer a wide range of sports…[which] rules that are unique and prioritize diverse skills and attributes.” It may not be justified to have the same eligibility requirements applied for rifles or bowling as for gymnastics or swimming. With regard to the level of competition, likewise, it would not be appropriate to apply the same criteria to “no cut” teams. that allow all students to join an elite competition.With regard to grade or educational level, schools must take into account the primary objective of an athletics opportunity, reflecting the fact that younger students, for example, are encouraged to participate in sports not only, or Primarily not even for competition purposes, but rather to encourage children to be physically active, develop leadership skills, and learn about being part of a team.
Minimizing harm to students who will be excluded
The OCR asserts that “State IX generally prohibits a recipient from excluding students from an educational program or activity on the basis of gender when the exclusion would cause more than minor harm,” a point he made clear in his July 2022 Title IX NPRM. Although OCR acknowledges that “[a] The school’s policy of segregating students on the basis of certain reproductive characteristics or other sex-based characteristics … will not materially harm the vast majority of students,” it also acknowledges that in some cases, students will be excluded, and those students will face different harms than those such as a boy Ineligible to play on a girls’ volleyball team when the school does not offer a boys’ team or a co-ed team, such as when students are “forced” to reveal that they are transgender, or their transmission is negatively impacted.
However, again, the proposal does not conclude that restrictive standards are impermissible; Rather, they must be, as described above, significantly related to the achievement of an important educational goal, and must also be “adopted and applied in such a way as to minimize harm to those students.” If standards are available that will cause less harm and achieve the important educational objective, the school will not be allowed to adopt standards that are more harmful.
Highest impact potential at secondary and post-secondary levels
Under the proposed rule, most restrictions based on gender at the primary school level would be a violation of Section IX, while nuances would be permitted at the secondary and post-secondary levels, particularly with regard to elite athletic competition. Given the minimal differences in physical characteristics based on sex among primary-age children, the general lack of selectivity in young children’s sports teams, and the focus on purposes other than competition to encourage participation in sports, the ED predicts that “there will be few, if any, Gender eligibility criteria applied to students in elementary school that may comply with the proposed regulation,” while “at the high school and college levels, schools applying or adopting gender eligibility criteria to ensure an important educational goal, such as fairness in competition in their athletic programs, may be more liable to meet proposed regulations.”
As such, it is secondary and post-secondary schools that will be required to engage in the highly specific type of analysis described above. At the collegiate level, institutions can expect a very important role for bodies such as the NCAA and other athletic associations, with state athletic associations playing a similar role to their K-12 peers, as well as sports-specific organizations and associations. In the preamble, the OCR is careful to acknowledge that in 2022, the NCAA has replaced its long-standing policy prescribing eligibility for transgender students to participate on an NCAA male or female collegiate athletic team with an athletic approach” which “calls for its member colleges and universities to follow standards for participation of transgender students.” in varsity sports set by the national bodies that govern individual sports.” While it would not be correct to assert that schools cannot take any responsive action and simply wait to follow the lead of these outside bodies, it seems safe to say that such bodies will play a crucial role In developments in this area like unfolding.
Steps to take now
Keeping in mind that this is a proposed rule and not final, schools and school districts may wish to begin educating stakeholders about the proposed rule, establishing lines of communication with relevant sports federations, and considering how the proposed framework may apply to the athletic opportunities the school or district offers.
Comments on the proposed rule can also be sent via the Federal Online Portal. Schools and education departments are encouraged to take advantage of the opportunity to provide comments on the proposal, including specific “guiding questions” identified by the ED:
- Whether there is any alternative approach [] The proposed regulations would better align with Title IX requirements for a recipient to provide equal athletic opportunity regardless of gender in the recipient’s athletic program as a whole;
- What educational objectives are of sufficient importance to justify the recipient imposing gender-related criteria that would limit or deny a student’s eligibility to participate in a male or female sports team consistent with their gender identity and whether such objectives should be specified in the regulatory text;
- whether and how to allow gender-related eligibility criteria should vary depending on sport, level of competition, degree, educational level, or other considerations;
- whether any eligibility criteria relating to sex would meet the standard set out in the proposed regulation when applied to students in earlier grades, and if so, what kind of criteria might meet the proposed standard for those grades;
- how the recipient may minimize harm to students whose eligibility to participate in a male or female team sports consistent with their gender identity is limited or denied by the recipient’s adoption or application of gender criteria; And
- Whether the regulatory text in addition to the text in the proposed bylaw is necessary to provide recipients with sufficient clarity about how to comply with Title IX’s prohibition on sex discrimination, including discrimination on the basis of gender identity, in the context of male and female team sports, consistent with the principles and concerns identified in Discussion of proposed Paragraph 106.41(b)(ii).
Finally, Saul Ewing’s practice in K-12 and higher education will continue to monitor developments relating to the proposed rule specifically, and this complex and evolving area of the law more generally.