ED Department Proposes Title IX Amendment Prohibiting Outright Bans on Transgender Athlete Participation

New Rules

By Jackie Gharapour Wernz and Kendra Yoch

On April 6, 2023, the U.S. Department of Education proposed an amendment to Title IX prohibiting categorical bans on transgender athletes’ participation in school sports. If adopted, the proposed rule would override the laws of twenty states, including Texas, that require students to participate on the sports team matching their sex assigned at birth. The proposal would implement a new test for such rules, balancing the objectives of schools in limiting transgender student participation against the potential for harm to students whose opportunity to participate is denied. What should your school, college, or university know about the proposed rule now?

What Does the Proposed Rule Say?

The proposed amendment would add one short paragraph to the existing rules implementing Title IX. It would prohibit a school, college, or university receiving federal funds from the Department from adopting or applying sex-related criteria limiting or denying a student’s eligibility to participate on a male or female team consistent with their gender identity.

A school could adopt or apply sex-related criteria limiting or denying a student’s eligibility to participate on a male or female team consistent with their gender identity only in limited circumstances. Specifically, any such criteria:

  1. Must be specific to each sport, level of competition, and grade or education level
  2. Must be substantially related to the achievement of an important educational objective, and
  3. Must minimize harm to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

What is an “Important Educational Objective” Under the Proposed Rule?

The requirement that a rule be “substantially related” to “an important educational objective” is drawn from case law interpreting the Equal Protection Clause and is the same standard the Department uses to evaluate single-sex programs and classes under Title IX.

The preamble to the proposed rule provides a few examples of what could be an important educational objective, including ensuring fairness in competition and prevention of sports-related injury, “particularly for older students in competitive athletic programs.”

The preamble also makes clear that an objective will not be considered an important educational objective if it is premised on:

  • Disapproval of transgender students
  • A desire to harm a particular student
  • A desire to exclude transgender students from sports
  • Adherence to sex stereotypes, or
  • Administrative convenience.

The Department says it will assess whether a provided justification for a limitation on transgender athlete participation is pretext for an impermissible interest in singling out transgender students for disapproval or harm, rather than a genuine educational interest.

What is “Substantially Related” Under the Proposed Rule?

The proposed rule would require a tight fit between the asserted objective and the specific limitation regarding transgender athletes, considering the grade or education level, level of competition, type of sport, and risk of harm to excluded students. Notably, “substantial relation” might not be found if a school can achieve its objective using means that would not limit or deny a student’s participation consistent with their gender identity.

Examples of criteria that might fail the “substantial relation” test include:

  • Criteria that assume all transgender girls and women possess an unfair physical advantage over cisgender girls and women in every sport, level of competition, and grade or education level would rest on a generalization that would not comply with the Department’s proposed regulation, and
  • Criteria that exclude transgender students from participation on a male or female team based on a false assumption that transgender students are more likely to engage in inappropriate conduct than other students.

What Would the Proposed Rule’s Harm Minimization Requirement Involve?

The commentary to the proposed rule explains that a school, college, or university must evaluate the harm that a proposed limitation would have on excluded students. If a school can reasonably adopt or apply alternative criteria that would cause less harm and still achieve its important educational objective, it would not be permitted to adopt the more harmful criteria. Even if no reasonable alternative exists, the rule would require a school, college, or university to balance any identified harm to the excluded student against its important educational objective to determine whether a limitation can stand. It is unclear how this balancing would occur, including how information about the harm would be obtained.

What Types of Limitations Would the Proposed Rule Cover?

The proposed rule does not address eligibility criteria such as attendance requirements or academic standing requirements for student athletes. It addresses only criteria related to how a student’s sex is determined for team-eligibility purposes. This would include any eligibility requirements based on a student’s sex or sex characteristics.

Examples of criteria that might trigger the rule include:

  • A requirement that transgender students participate on the team consistent with their sex assigned at birth
  • A requirement limiting or denying a student’s eligibility for a male or female team based on a sex marker on an identification document, such as a birth certificate, passport, or driver’s license
  • Criteria requiring physical examinations or medical testing or treatment related to a student’s sex characteristics if the results of such examinations or testing or requiring such treatment could be used to limit or deny a student’s eligibility to participate consistent with their gender identity, and
  • A rule prohibiting transgender girls who have gone through puberty from participating on girls’ teams.

The commentary clarifies that a student need not be excluded from participation to trigger the proposed regulation. For example, the rule would apply if a student is allowed to participate in some, but not all, competitions.

What Types of Limitations Might Survive the Proposed Rule?

The proposed rule’s preamble provides insight into what limitations might survive scrutiny under the new standard. Specifically, the Department made the following comments based on levels of sports:

  • Elementary School: The Department said it expects that elementary school students generally would be able to participate on athletic teams consistent with their gender identity.
  • Middle School: Additionally, the preamble to the proposed rule says that it would be “particularly difficult” to exclude students from participation based on gender identity “immediately following elementary school.” Although limits to “no cut” teams that allow all students to join might not survive, some middle school teams might justify limitations.
  • High School and College: The Department suggested that it would be more difficult for a school to show a need for sex-related eligibility criteria that restrict students from participating consistent with their gender identity at lower levels of competition, such as JV teams and intramural teams. However, the preamble suggests that the rules would allow limitations for other high school and college teams if the above standards are met.

How Would the Proposed Rule Impact Intersex or Non-Binary Student Athletes?

The proposed rule is clear that the same test would apply to rules that limit or deny a nonbinary student’s eligibility to participate on a team consistent with their gender identity. It does not provide insight into how issues relevant to these types of gender identities could impact the analysis required by the proposed rule.

How Would the Proposed Rule Impact State Law?

The proposed rule was released the day after Kansas became the twentieth state with a law banning transgender students from participating in the sport team matching their gender identity. Texas, for example, has, for almost a year and a half, required student athletes to play on teams that match their sex listed on a birth certificate issued near the time of birth.

If the rule is adopted, it would immediately override these state laws. The U.S. Constitution establishes the federal government as the supreme law of the land. This means that federal laws take precedence over state laws when there is a conflict between the two. Although the rule, once finalized, could face legal challenges, until a court enjoins enforcement of the rule it would be the “supreme law of the land.”

Is the Rule Currently in Effect?

No. The rule is in proposed form, and so is not current law that schools must follow. The Department must allow the public to comment on the rule and may change the rule based on comments received. Once the notice of proposed rulemaking is published in the Federal Register, the public will have 30 days to submit comments on the proposed rule. The Department then must review and analyze all comments in preparing a final rule.

For more information about the proposed rule and how it could affect your educational institution, contact the authors of this post or any other Thompson & Horton attorney.