Highlights from the Department’s Notice of Proposed Rulemaking Concerning Athletic Eligibility

On April 6, 2023, the U.S. Department of Education released a Education-programs-or-activities-receiving-federal”>notice of proposed rulemaking (NPRM), which was published in the Federal Register on April 13, 2023, on athletic eligibility under Title IX. The express aim of the proposed rule is to advance Title IX’s goal of ensuring equal opportunity in athletics. While working with stakeholders to develop the proposed rule, the department learned that there is uncertainty about when and how students who identify as transgender can participate in school-sponsored sports, and the proposed rule seeks to provide clarity for students, parents, and schools. The department provided a fact sheet highlighting key aspects of the proposed rule, which are summarized below.

• The proposed rule would apply to K-12 school districts, as well as higher Education institutions receiving federal funding.
• The proposed rule affirms school districts can offer separate men’s and boys’ and women’s and girls’ sports teams in certain circumstances. For example, a school district could offer a golf team for girls, but not boys, and exclude a boy from the girls’ golf team, as long as it provides boys with equal opportunity based on sex in its athletics program as a whole.
• The proposed rule would prohibit school districts from adopting a “one-size-fits-all” policy banning students that identify as transgender from participating on teams consistent with the student’s gender identity. It would allow school districts flexibility to develop team eligibility criteria that serve important educational objectives.
• The department expects elementary school students would generally be able to participate on school sports teams consistent with their gender identity. For students at the high school and collegiate level, the department expects sex-related criteria that limit participation of some students that identify as transgender may be permitted when they enable the school district to achieve an important educational objective, such as ensuring fairness in competition or preventing sports-related injury.
• School districts would be required to consider certain considerations when developing a policy for participation, including:
  • Differences among students and school sports teams depending on grade and Education level;
  • Variances in the level of competition, such as ranging from very competitive to intramural or junior varsity teams; and
  • The nature of the sports to which restrictions would apply.
• The proposed rule recognizes the importance of minimizing harm to students whose participation on teams consistent with their gender identity would be limited or denied.

The proposed rule had a public comment period for 30 days after its publication in the Federal Register, which expired on May 15, 2023, and received over 150,000 comments.

What this means to you

While school districts are not required to make any policy changes based on the proposed rule, once the department releases a final rule, they will need to adopt their athletic participation policies accordingly.