New Title IX Proposed Rule Straddles Issue of Transgender Students in Sports

By Megan E. Bomba

April 12, 2023

The U.S. Department of Education (ED) released a new notice of proposed rulemaking under Title IX addressing eligibility for transgender students participating in athletics. Specifically, the proposed regulation seeks to clarify how schools may create sex-based criteria for athletes to compete consistent with Title IX. The ED cites the need for the proposed rule following a two-year period during which the Department heard from stakeholders seeking guidance regarding when and how transgender students may participate in school sports.

The proposed rule affirms the Biden Administration’s push for equal opportunity and a school environment free from discrimination on the basis of sex. Under the proposed rule, policies that ban transgender students from participating on sports team that align with their gender identity would violate Title IX. However, it also recognizes that some sports environments call for eligibility criteria. The proposed rule would allow schools to adopt policies that limit transgender students’ participation.

“The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies,” states the fact sheet.

For eligibility criteria, the ED lists differences in grade and educational level, level of competition, and the specific sport as factors that should be considered for restriction of transgender student participation.

The ED encourages stakeholders to take part in the 30-day comment period, beginning with the posting of the proposed rule in the Federal Register, potentially on April 13, 2023.

The Appel, Yost & Zee Education Group will guide clients as they change policies to reflect the changes in the Title IX regulations. Should you have any questions about the proposed rule or any Title IX-related questions, do not hesitate to contact William J. Zee or any of the attorneys in the Appel, Yost & Zee Education Law Group.