The U.S. Education Department (ED) has unofficially released a proposed rule that details how Title IX applies to transgender athletes’ participation in school athletics. This is the proposed rule that ED indicated was forthcoming when it proposed broader Title IX regulations last year. ED has not yet issued that final rule.
The athletics NPRM (notice of proposed rulemaking) adds a subsection to the existing Title IX regulation that permits schools to offer separate men’s and women’s sports teams in certain situations. The new subsection states:
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 regulation does not prohibit an educational institution from limiting or denying a transgender athlete’s participation on a team consistent with their gender identity, but it does prevent the institution from issuing a blanket ban on such participation. The regulations would therefore clash with laws enacted in several states that ban outright transgender athletes’ participation on teams consistent with their gender identity.
Rather, the proposed rule requires the school to identify an important educational objective that such limitation or denial is intended to serve. ED does not delineate an exhaustive list of what those objectives might be, but it specifically notes in the regulation’s preamble that ensuring fairness in competition and preventing sports-related injuries are legitimate examples. ED would not consider disapproval of transgender people, or cited objectives that are simply a pretext for disapproval, to be important educational objectives.
No blanket assumptions
Any measure taken by the school must be substantially related to achieving the educational objective, so if the school has options to achieve that objective short of limiting or denying transgender participation on a given team, they must use them. A school may not base its policies on blanket assumptions that transgender athletes would have a competitive advantage or that they would engage in improper conduct.
The analysis to determine whether a school policy is substantially related to an important educational objective must also be done on a sport-by-sport basis and consider age and competition level. Generally speaking, the ability to impose restrictive policies increases with the age of the athletes and the competitiveness of the team in question. For that reason, ED states in its preamble that restrictive policies at the elementary school level would almost certainly run afoul of the rule and that similar middle school policies likely would as well. The level of competitiveness would factor into the analysis even at the postsecondary level – for example, a policy that might pass muster for a competitive intercollegiate team might not for intramural athletics.
The athletics NPRM will be open for comment for 30 days once it is published in the Federal Register, which will likely occur this week.