ED Releases Proposed Title IX Rule for Gender Identity and Athletics

On April 13, the Department of Education released a proposed rule to update the application of sex-related criteria that would “limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity” for K-12 schools, colleges, and universities.

The proposed rule builds on a tranche of Title IX rules concerned with sex discrimination, sex-based harassment, and sexual violence that was proposed in June 2022 and is expected to be finalized this spring. While those rules offer various protections for LGBTQIA+ individuals, including protections related to gender identity, ED’s new rule deals specifically with gender identity and athletics.

The proposed rule would prohibit schools from categorically banning transgender students from participating in athletics that align with their gender identity – or else a school would risk violating Title IX and losing access to federal funding. However, the proposed rule would offer schools, particularly higher education institutions, significant leniency to develop their own policies if specific criteria are met.

The proposal would allow schools to develop eligibility criteria that serve “educational objectives,” such as “ensuring fairness in competition or preventing injury.” These criteria must account for the sport, level of competition, and educational level for which they apply. ED reasons that educational objectives change as student athletes get older; while elementary-aged sports may be focused on building leadership and teamwork skills, college athletics likely prioritize on-field success. Therefore, as the “educational objectives” change, so can institutional policies.

In a press release and fact sheet shared earlier this month, ED made clear that any criteria cannot be premised on the disapproval of transgender students or desire to harm a particular student. Stating that denial of access could “stigmatize and isolate” student athletes, ED also mandates that schools “minimize harm” but has not yet provided additional details.

The Biden administration’s rule comes amidst a contentious national conversation about transgender rights. Twenty states have banned student athletes from participating in sports based on their gender identity, and recent legislation introduced by House Republicans would amend Title IX to define sex as based solely on a person’s reproductive biology at birth.