The Department of Education Releases Proposed Changes to Title IX Athletics Regulations, Addressing Transgender Athletes: Updates and First-Look Analysis

Article by Andrea Stagg and Joseph Storch

On Thursday, April 6, 2023, the Department of Education issued a fact sheet on its proposed change to Title IX Regulations on students’ eligibility for athletic teams. The fact sheet includes a link to an unofficial version of the Proposed Rule, which as of this writing has not been published in the Federal Register.  

In Brief 

So, what are the big changes here? The proposed change to the existing regulations is a single subsection added to 106.41(b), to read as follows: 

“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.” 

What doesn’t this mean? This doesn’t mean that at every level of competition, every school must allow every Transgender student-athlete to participate and compete on a team that is consistent with their gender identity.  

What does it mean? Schools must not use a one-size-fits-all approach when adopting and applying, as the Department states in the fact sheet, “sex-related eligibility criteria.”  

Consider the sport, level of competition, and the grade or education level. Ask: what are the important educational objectives, and do these criteria substantially relate to achieving those objectives? If the answer is yes, find a way to minimize harm to students whose opportunities to participate will be limited or denied.  

Some Analysis of the Proposed Rule 

The Department recognized that this is a challenging area and that there are different opinions and approaches proposed by state and local organizations, athletic organizations, experts and commentators, and even international athletic governing bodies. The Department reasons that the patchwork application, developed amidst uncertainty as to the application of Title IX is unhelpful, inconsistent, and can be harmful to students seeking to participate in athletics. The Department notes specifically that the current system often does not consider the needs and abilities of Intersex students and that Transgender students not allowed to participate in athletics consistent with their gender identity do not have a viable option of participating in athletics inconsistent with that identity—even if it is consistent with their biological sex as assigned at birth.  

The Department has initially identified two areas that are eligible for consideration as substantially related to the achievement of an important educational objective: preventing injury and promoting fairness in competition. This analysis must be conducted for each sport and at each level of play and can’t simply be subjected to bright-line bans. However, even identifying an area eligible for such consideration is only part of the analysis. The decision on participation must be one that minimizes harm to students seeking to participate—by adopting or applying alternatives that achieve the important educational objective in a less harmful way.  

Blanket requirements that students undergo physical examinations, medical testing, or treatment, or requiring them to show a birth certificate, driver’s license, or passport to participate may not meet this standard of minimizing harm. The Department states that “communicating or codifying disapproval of a student or a student’s gender identity,” or a pretext for such, is not an important educational objective. 

The Preamble notes that Transgender students seeking to participate in athletics are comparatively rare and affirms that schools may continue to offer male and female athletic teams consistent with current Regulations so long as selection is based on competitive skill or based on whether or not it is a contact sport. Criteria such as academic minimum requirements, and related standards, that are firmly unrelated to sex or gender are not implicated by the current or new Regulatory approach. This new provision of the Regulations is only activated when sex-related criteria are applied that would limit or deny eligibility to participate in athletics consistent with gender identity. For most sports and most institutions, this is not an issue they will regularly address. 

Critically, the Preamble discourages broad-brush approaches that assume competitive differences in Transgender girls and women, based on generalizations or categorical exclusions or limitations. Rather, recipients of federal funds (and their athletic associations) should look to the nature of the sport in question, the level of competition, and the grade level of the students. Broad-brush approaches, therefore, may not meet the standard of an approach aimed at minimizing harm and may be found to be pretextual. 

The Department draws distinctions between elementary school competition and secondary and post-secondary competition. Interestingly, the distinctions are not drawn based on civil rights factors, but on how the schools in these sectors have organized their athletic competitions to date. Finding that elementary schools more often use a no-cut or full participation approach to filling athletic teams, the Department reasons it would be hard to justify prohibiting student participation in athletics consistent with their gender identity. In high schools and colleges, however, the Department notes the approach, to be analyzed on a sport-by-sport basis, makes significant distinctions based on athletic ability and competitiveness in fielding athletic teams. This is not the case for all sports, but the Department reasons that a high school or college level approach in a specific sport or sports may be different and may allow for distinctions that would not be acceptable at the elementary school level. 

The Department, in noting that this will be a rare occurrence, does not call for regular, broad-based training, but rather training conducted on an ad-hoc basis, as the issue arises. Of note, the Rule would appear from the Preamble to apply to intramural and club athletics alongside intercollegiate and interscholastic athletics.  

The Proposed Rule 

This new section is just 81 words, but the Preamble to the Proposed Rule runs 115 pages in this unofficial publication. The first 25 pages are an introduction and the procedural history of separate athletic opportunities, and how it has evolved. The next 40 pages discuss the proposed change to the Regulations in detail. The Regulatory Impact Analysis takes up the remaining 45 pages leading up to the actual proposed change—the paragraph above, proposed § 106.41(b)(2).  

Next Steps and Additional Resources 

Once the Proposed Rule is officially published in the Federal Register, the comment period will be open for at least 30 days. Then, the Department of Education will consider the submitted comments and address them in the Final Rule, including in its preamble.

Below please find a list of general and specific areas that the Department has identified for comment as well as a tracked changes in the Proposed Rule. Grand River Solutions experts will be eagerly awaiting any updates from the Department of Education on these athletics regulations and will share them with you. 

Follow us on LinkedIn, Facebook, Instagram and the newly launched The River Connect, a virtual community of experts and colleagues.    

The Department of Education Fact Sheet is here.  

The unofficial Proposed Rule is here.  

The current Regulations are here.    

Tracked Changes to the Existing Regulations Based on the Proposed Rule

• • 106.41 Athletics.

(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.  

(b) Separate teams. 
(1) Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact. 
(2) 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. 

(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors:  

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;  

(2) The provision of equipment and supplies;  

(3) Scheduling of games and practice time;  

(4) Travel and per diem allowance;  

(5) Opportunity to receive coaching and academic tutoring;  

(6) Assignment and compensation of coaches and tutors;  

(7) Provision of locker rooms, practice and competitive facilities;  

(8) Provision of medical and training facilities and services;  

(9) Provision of housing and dining facilities and services;  

(10) Publicity.  

Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.  

(d) Adjustment period. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics at the elementary school level shall comply fully with this section as expeditiously as possible but in no event later than one year from the effective date of this regulation. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics at the secondary or post-secondary school level shall comply fully with this section as expeditiously as possible but in no event later than three years from the effective date of this regulation. 

General and Specific Requests for Comments 

The Department of Education included six directed questions to seek specific feedback through the comments, including the following, which are paraphrased: 

• • What educational objectives are important enough to justify using sex-related eligibility criteria that limit participation?  
  • How can schools minimize the harms to students who are kept from participating or competing based on sex-related eligibility criteria?  
  • How, if at all, should the permissibility of particular sex-related eligibility criteria differ depending on the sport, level of competition, grade or education level, or other considerations? 
  • Are sex-related eligibility criteria ever appropriate in the earlier grades?  

The Department is also seeking specific comments in the following areas:

• • The impact of the Proposed Rule on two-year institutions of higher education. 
  • Whether there are any sex-related eligibility criteria that can comply with the standards established in the Rule in the elementary school context and, if so, what criteria may comply. 
  • The extent to which state athletic associations are likely to engage in a review of policies and the timeline for such a review. 
  • The extent to which athletic associations (such as the NCAA, NAIA, NJCAA, NCCAA, etc.) are likely to engage in a review of policies and the timeline for such a review. 
  • Identifying high-quality data sources on higher education athletic team offerings, intramural and club sports, and time estimates for complying with the Proposed Rule. 
  • Assistance in analyzing how the policy changes made by one athletic association will contribute to policy revisions by other associations. 
  • Assistance in analyzing whether blanket rules implemented by associations may impact schools that do not accept federal funds. 
  • Assistance in analyzing time burdens in later years once the Rule is finalized (including policy re-review and training). 
  • Assistance in understanding the impact of structures and requirements (public comments, shared governance, membership votes) would have on an implementation timetable. 
  • How to make the Proposed Regulations easier to read and understand (formatting, language, technical jargon). 
  • The impact of the Regulations on federalism principles and the burden on small entities covered by the Regulatory Flexibility Act. 
  • Whether the Rule would require transmission of information that other federal agencies or authorities make available. 
  • Any alternative approaches to the subject other than the one that the Department has selected in the Proposed Rule.