On Thursday, April 6, 2023, the United States Department of Education released its official Proposed Rule governing the adoption or application of sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity.
The Proposed Rule in its entirety 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.”
In its 116 page Proposed Rule and Commentary, the Department of Education confirms what Stock and Leader has been cautioning that, “when limiting participation on male and female teams by a student’s gender identity, school districts will be required to approach it on a case-by-case basis.” Specifically, the Proposed Rule makes it clear that school districts will be violating Title IX if they issue a blanket rule or practice of only allowing students to participate on teams consistent with their biological sex.
Nevertheless, the Proposed Rule does clarify that in some instances, school districts may create criteria that would ultimately prohibit a transgender, gender non-conforming, or non-binary student from participating on a team consistent with their gender identity. However, that sex-related criteria would need to account for the differences in sports, levels of competitions, and the grades or education level that the criteria affect. For example, the Proposed Regulation would likely prohibit a school district from applying the same sex-related criteria to all football teams at the school district because the criteria would not account for the differences in levels of competition and grades or education levels. The Proposed Rule goes on to further state that, generally, sex-related criteria applied to elementary and middle school teams will be presumptively suspect because of the lack of competitiveness and the differences in the philosophy of sports for elementary and middle school students.
Further, the Proposed Rule recognizes that school districts have a legitimate important educational interest in fairness in competition and in preventing sports-related injury to students. As such, school districts issuing sex-related criteria that is substantially related to achieving fairness in competition or in preventing sports-related injury to students, could be appropriate under the Proposed Rule. Of course, those sex-related criteria would still need to account for each sport, the level of competition, and grade or education level as well as be designed to minimize harm to the students that would be limited or denied participation. The Proposed Rule makes it clear that if the school district can adopt or apply alternative criteria that causes less harm and still achieves its important education objective, the school district would not be permitted to adopt the more harmful sex-related criteria.
Next Steps: As of now, the above Proposed Rule and commentary to the Proposed Rule is still in the infancy stage of the regulatory process. As such, school districts should not jump to creating new policies or implementing any new practices. Once the Proposed Rule is officially published in the Federal Register, the Department of Education will seek public comments for thirty days. We expect tens of thousands of comments to be submitted to the Department of Education. At the end of the process, we expect to see a Final Rule with more clarification. While we cannot be certain as to when a Final Rule will be released, we currently expect an August release with a December compliance date. As always, Stock and Leader will continue to keep you up to date on all matters related to Title IX. Members of our Group are ready to discuss concerns, answer questions, and provide counsel on any of your school district’s issues.