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The U.S. Department of Education (DOE) issued a Notice of Proposed Rulemaking on April 6, 2023 regarding athletic eligibility under Title IX. In connection to the rationale underlying the purpose of the proposed rule, the DOE indicated that several schools and students have faced uncertainty with respect to how and when transgender students are able to participate in school sports. Over the past two years, approximately 20 states—to different extents—have passed laws preventing or limiting transgender students from playing on school sports teams. The DOE acknowledged the various state laws in its proposed rulemaking and expressed that if the rule is adopted as a final rule, it shall provide clarity for all players involved in school sports. 

The DOE’s Line-Up

The proposed regulation, if finalized, would be codified at 34 C.F.R. § 106.41(b)(2) and would state:

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 seeks to strike out policies that categorically ban transgender students from participating on sports teams on the basis of their gender identity (i.e., blanket policies). Under the proposed rule, such policies would violate Title IX. At the same time, the proposed rule recognizes that covered schools and higher education institutions (collectively referred to as “schools”) may adopt and enforce policies that limit transgender students’ participation in school sports. Accordingly, the proposed rule provides schools with a framework to create eligibility criteria that enforce equal athletic opportunity while allowing schools the flexibility to develop their own participation policies. 

With respect to limiting transgender students’ participation in school sports, the proposed rule would allow schools to develop and enforce team eligibility criteria that serve an important educational objective and that minimize harm to students. The DOE specifically enumerates two examples of an important educational objective:

  1. Fairness in competition.
  2. Preventing sports-related injury.

The DOE noted that such criteria would be considered alongside of the type of sport, level of competition, and education level. The proposed rule also calls for minimizing harm to transgender athletes. By way of example, a criterion that requires a transgender student to undergo an invasive exam, testing, or procedure to show they are fit to participate would likely increase harm to the student and may violate Title IX under the proposed rule. Based on the proposed rule, the criteria must be substantially related to an important educational objective. Nevertheless, the proposed rule does not specify ways to “minimize harm.”    

The “Inside Baseball”

The public comment period is open until May 15, 2023. The DOE is interested in further thoughts regarding what constitutes an “important educational interest.” Further, it is interested in determining ways to “minimize harm.” It is important for schools to consider the implications of this proposed rule. Essentially, the proposed rule sets forth an intermediate scrutiny test that schools must meet in order to uphold its eligibility criteria within its athletics policies. Considerations that may impact eligibility criteria include:

  • What constitutes an “important educational interest”?
  • Which criteria sufficiently “minimize harm”?
  • Are the criteria objectively reasonable for a particular sport?
  • Adherence to the NCAA Policies is not necessarily a nondiscriminatory defense.
  • Do current school athletics’ policies run consistent with the proposed intermediate scrutiny test?
  • Impact on the various levels of collegiate sports—divisional, club, and intramural.

Schools must begin to consider the types of eligibility criteria that they will be able to enforce and that will survive intermediate scrutiny. Schools should also consider whether the proposed test should be implemented or whether alternatives exist. The DOE’s comment period leaves open the opportunity to express insight regarding the manners in which a school can enforce certain criteria depending on whether specific interests constitute an “important educational interest” and whether the manners employed to achieve that interest minimize harm to students. Such criteria may impact a school’s mission, current athletics policies, retention rates, and student engagement. As athletics serve as a pinnacle pillar of schools across the United States, stakeholders should start considering their current and forthcoming eligibility criteria.

Buchanan’s coordinated team of higher education attorneys and government relations professionals are closely monitoring the DOE’s Proposed Rule and will keep you updated. If you have any questions regarding the Proposed Rule and your entity’s interests or would like to discuss how we can assist you with providing comments to the DOE, please contact our authors.