Transgender Athletes: Education Department Proposes Amendment to Title IX Regulations

Transgender Athletes: Education Department Proposes Amendment to Title IX Regulations

Legal Sidebari

Transgender Athletes: Education Department
Proposes Amendment to Title IX Regulations
June 23, 2023
Title IX of the Education Amendments of 1972 (Title IX) bars discrimination “on the basis of sex” in
education programs that receive federal financial assistance. Long-standing regulations implementing
Title IX provide that recipients may not discriminate based on sex in athletics programs, although schools
may operate sex-segregated teams in certain circumstances. The Department of Education (ED)’s Office
for Civil Rights (OCR) recently issued a Notice of Proposed Rulemaking (NPRM) that seeks to amend its
Title IX regulations. If adopted, the proposal would prohibit categorical bans on transgender students
participating in sports consistent with their gender identity but would allow some restrictions that—for
each grade level, sport, and level of competition—are substantially related to an important educational
objective and are aimed to minimize harm.
The NPRM follows a July 2022 proposal to amend ED’s Title IX regulations more broadly, including to
(1) alter a school’s responsibilities in cases of sexual harassment and (2) define the scope of Title IX’s
prohibition against sex discrimination to include discrimination based on sexual orientation and gender
identity. According to ED, it expects to finalize both proposed rulemakings by October 2023. These
proposals also follow Bostock v. Clayton County, a 2020 Supreme Court case that interpreted a statutory
ban on sex discrimination in the employment context under Title VII of the Civil Rights Act of 1964. In
Bostock, the Court determined that sex discrimination in that context includes discrimination based on
sexual orientation and gender identity.
This Sidebar first provides the general context for the recent NPRM, starting with a brief background on
Title IX, the Court’s decision in Bostock, as well as developing approaches to the participation of
transgender athletes in competitions at the state, national, and international level. The Sidebar then
examines the NPRM and its potential implications for schools and their athletics programs, concluding
with considerations for Congress.
Background: Reach of Title IX and Athletics Regulations
All public school districts receive some federal financial assistance, as do most institutions of higher
education through participation in federal student aid programs. As a result, both must comply with Title
IX and its implementing regulations.
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While Title IX prohibits sex discrimination in a school’s athletics programs, this does not mean that every
sex-based distinction is banned. The statute does contain exceptions, including when application of the
law would conflict with a religious institution’s tenets. According to Title IX regulations, schools may
offer separate athletics teams for males and females where selection is based on competitive skill or the
activity is a contact sport. Schools that operate athletics programs must provide “equal athletic
opportunity for members of both sexes” overall, although they need not offer the same sports for each
sex. Schools operating athletics programs must also “effectively accommodate the interests and abilities
of members of both sexes.” The NPRM does not appear to propose a change to these requirements.
In the 2020 case Bostock v. Clayton County, the Supreme Court ruled that Title VII, which prohibits sex
discrimination in employment, extends to discrimination based on sexual orientation and gender identity.
Courts interpreting Title IX’s prohibition against sex discrimination in federally funded education
programs often draw upon cases interpreting Title VII’s ban against sex discrimination in employment.
Following the Bostock decision, some federal appellate courts have applied the reasoning of that case to
Title IX, concluding that sex discrimination under the statute includes discrimination based on sexual
orientation and gender identity. In addition, President Biden has issued an executive order that asserts the
Administration’s policy of ensuring that educational environments are free from sex discrimination,
including based on sexual orientation and gender identity; it specifically directs the Secretary of
Education to review regulations for consistency with that policy.
Developing Approaches: State, National, and International Policies
Current policies on the participation of transgender athletes in sports consistent with their gender identity
can range from state requirements for high school athletes, national policies for intercollegiate athletics, to
international policies for Olympic athletes. Because Title IX only applies to federally funded education
programs, ED’s NPRM may have legal consequences for public school districts and most colleges, but
would not apply to an international athletics competition unconnected to federally funded educational
programs.
State Laws and Policies
States have taken varying approaches to the participation of transgender students in athletics. Both state
laws and the policies of state athletics associations can potentially be relevant. Some state high school
athletics associations permit transgender students to participate in athletics consistent with their gender
identity with no restrictions. Others impose certain limitations, such as a documented period of
testosterone suppression therapy for transgender girls to participate on female athletics teams, or evidence
that a transgender girl does not possess physical advantages compared to other girls of the same age
group. By contrast, some states have passed laws imposing categorical bans on participation. For instance,
some laws prohibit transgender girl students from participation in athletics consistent with their gender
identity in sports sponsored by public high schools and public postsecondary institutions. There are
pending legal challenges to both permissive and restrictive laws and policies.
National Collegiate Athletic Association (NCAA) and International Olympic
Committee (IOC)
At the national and international levels, the policies of athletics associations regarding the participation of
transgender athletes have informed ED’s consideration of the matter. In 2022, the NCAA updated its
policy on participation for transgender athletes to reflect a sport-by-sport approach, meaning that
standards are established by each sport’s national governing body. Participation in NCAA athletics
competitions will require submission of relevant documentation (e.g., testosterone levels) that meets the

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sport-specific standard. The NCAA policy was adopted after a similar sport-by-sport approach was
adopted by the IOC.
The NCAA is not a recipient of federal financial assistance and thus is not directly regulated by Title IX.
However, because member universities participating in NCAA athletics activities generally are recipients
of federal funds and must comply with Title IX and its implementing regulations, the NCAA’s policies
may be indirectly affected by a change in Title IX’s athletics regulations.
ED’s NPRM: Proposal to Amend Title IX Athletics Regulations
ED’s Title IX athletics NPRM appears to reflect an attempted middle ground position between a
restrictive categorical ban and a permissive policy with no limitations. The proposed standard would
amend Title IX regulations to provide that if a recipient does apply sex-based criteria to determine a
student’s eligibility to participate on a female or male sports team consistent with their gender identity,
such criteria must, for each grade and education level, sport, and level of competition (1) be substantially
related to achieving an important educational objective; and (2) minimize harms to students whose
participation consistent with their gender identity is limited or denied.
On the one hand, this proposal would not require schools to limit the participation of transgender student
athletes. Schools with permissive policies would likely not need to alter their practices under the
regulation. On the other hand, according to ED, the proposal would prohibit a categorical ban on
transgender student athlete participation, including a ban on transgender girls from participating in female
athletics, as such a policy would not account for the considerations the NPRM requires. Instead, under the
proposed regulations, limitations on the participation of transgender athletes would only be acceptable
when they both are substantially related to achieving an important educational objective and framed to
minimize harm for each sport, educational level, and level of competition.
ED explicitly acknowledges that this proposed standard for the Title IX athletics regulations is informed
by cases interpreting the Constitution’s Equal Protection Clause, which requires governmental sex-based
classifications to be substantially related to achieving an important government objective. Title IX and the
Equal Protection Clause’s protections against sex discrimination are not coterminous.
“Important Educational Objective”
The NPRM would require limitations on transgender student athletes’ participation in sports to be
substantially related to an important educational objective. ED discusses at least two such objectives that
could justify limitations (though it notes that the regulations would not necessarily preclude another
objective). First, fairness in competition can be an important educational objective, as competition is key
to many sports, particularly at the college and high school levels. Second, preventing injuries in sports is
important, and limitations might be acceptable on this basis.
By contrast, ED’s proposal points out several objectives that would not be acceptable under the NPRM’s
provisions, such as codifying disapproval of a student’s gender identity; requiring adherence to sex
stereotypes; or solely relying on administrative convenience to support a policy. Recipients also may not
establish criteria “solely for the purpose of excluding transgender students from sports,” or as a pretext for
singling out transgender students for harm.
“Substantially Related” Standard
According to the NPRM, limitations on the participation of transgender athletes consistent with their
gender identity must, for each sport, education level, and level of competition, be substantially related to
achieving an important educational objective. Drawing from judicial application of equal protection
principles, ED asserts that there must be a “‘direct, substantial relationship between’ a recipient’s

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objective and the means used to achieve that objective,” and criteria may not rely on “overly broad
generalizations” about the capacities of males and females.
For example, a school district or university might invoke fairness in competition to support certain sex
criteria for transgender athletes, but those criteria must be substantially related to achieving fairness in
competition in the specific sport at issue, at the particular level of competition, and at that grade level. ED
argues that it is unreasonable to assume that every transgender girl or woman is similarly situated in
physical ability to cisgender boys and men. Criteria that assume all transgender girls and women will
have an unfair advantage over cisgender girls and women in all contexts would likely be an overbroad
generalization that would not satisfy the proposal. Thus, categorically denying transgender girls the
opportunity to participate on any female athletics teams would not be permitted under the proposal
because such criteria would rely on an overly broad generalization that fails to account for specific levels
of competition, the nature of a particular sport, and the applicable grade level of students.
In addition, if a school can reach its objective without limiting a student’s ability to play sports consistent
with gender identity, then the use of sex criteria may be pretextual. Accordingly, the possibility of
alternative criteria that would achieve a school’s educational objective without limiting or denying
athletes’ eligibility to participate in sports consistent with their gender identity may also be relevant to the
analysis.
Accounting for Different Grade Levels, Sports, and Levels of Competition
Grade or Education Level
ED’s position is that students of different grades may not be similarly situated in terms of athletic skills
and the larger purposes of athletics participation. For students in lower grade levels, such as elementary
and middle school, participation in team sports may reflect purposes beyond competition such as
introducing students to new activities and developing physical fitness and teamwork. By contrast, at the
high school and college level, some athletics teams might be more focused on elite competition.
ED thus asserts that there would be “few, if any” sex eligibility criteria for elementary students that would
satisfy the proposed regulation’s demands, and that it would be “particularly difficult” to satisfy the
standard with criteria imposed in grades immediately following elementary school. On the other hand, at
the high school and college level, sex criteria imposed to ensure fairness in competition may be more
likely to comply with the regulation.
Level of Competition
The NPRM also acknowledges that schools’ athletics programs take a wide variety of formats. In lower
grades, the emphasis is often on participation and learning, rather than elite competition as in an
intercollegiate setting. Within athletics programs, some levels of competition are lower than others. Those
that accommodate broad participation, such as intramural or junior varsity programs, may differ from the
competition considerations for a varsity team. ED notes that certain sports’ national governing bodies
allow transgender athletes to participate consistent with their gender identity without restriction below the
elite level. Therefore, the NPRM asserts that eligibility criteria for transgender athletes would be more
likely to satisfy the proposed regulations at the high school and university level, perhaps reflecting the
possibility that considerations for elite competition are more likely at that level than for elementary
students and middle school students. For instance, at top levels of varsity high school sports competitions,
athletes may be competing against one another for scholarship and recruitment possibilities, whereas an
intramural contest might not raise similar stakes for participants.

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Sport
As mentioned above, sex eligibility criteria for transgender athletes must also take account of the sport to
which they apply. The NPRM asserts that not all differences between students will confer a competitive
advantage or raise safety concerns. ED points to NCAA and IOC policies allowing for a sport-by-sport
approach to eligibility criteria, allowing for considerations specific to the nature of different activities and
accounting for competitive advantage or risk in a specific activity.
Harm Minimization
Eligibility criteria must also, according to the proposal, be crafted in a manner that minimizes harms to
those students whose opportunity to participate in sports consistent with their gender identity is limited or
denied. Even eligibility criteria that are substantially related to an important educational objective would
violate the proposal, if a school could reasonably apply less harmful criteria that achieves those
objectives. ED gives this example: if a school requires documentation of a student’s gender identity, the
school must take steps to minimize the potential harm that this documentation might cause for students,
such as privacy invasion or disclosure of confidential information.
Considerations for Congress
The Title IX athletics NPRM proposes one way of approaching how schools should handle the
participation of transgender students in athletics consistent with their gender identity. If Congress
disagrees with the proposal, it has a variety of possible avenues to alter applicable legal requirements.
Congress can amend the text of Title IX to more specifically detail requirements for schools that receive
federal funding. Legislation could address the meaning of sex discrimination generally, including whether
it includes discrimination based on sexual orientation or gender identity. Congress could also refine the
expectations for athletics programs in statute. Such legislation might track the NPRM’s provisions,
supersede any final rule with different requirements, or even direct a new rulemaking consistent with
different standards. Congress may also alter the various exceptions to Title IX’s mandate or further define
how those exceptions should be applied under the statute.
Alternatively, if the NPRM were adopted and Congress wished to limit its effect, pursuant to
the Congressional Review Act, Congress could pass a joint resolution of disapproval within the time
limits that statute establishes. Enforcement of certain aspects of a regulation may also be limited through
passage of appropriations riders, although such provisions generally expire at the end of the applicable
appropriations cycle.

Author Information

Jared P. Cole

Legislative Attorney

Disclaimer

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