On April 6, the U.S. Department of Education (“DOE”) issued a Notice of Proposed Rulemaking (“NPRM”) that would allow schools to exclude some transgender athletes from competing on sports teams that match their gender identifies and comply with Title IX.  The proposed change on students’ eligibility is a proposed change, which means it is still in its early stages. The proposed change to the Title IX regulations on students’ eligibility for athletic teams will not be included in the new Title IX regulations expected to be released in May 2023.

Title IX prohibits discrimination based on sex in education programs and activities receiving federal funding.  New Title IX rules are expected to be released in May 2023 that are likely to explicitly include transgender, sexual orientation, and pregnancy discrimination as sex discrimination covered by Title IX.  The new rules expected to be issued in May, however, provide little guidance on how to address transgender students and sports.

Under the NPRM issued on April 6, schools would be prohibited from issuing blanket policies excluding transgender students in sports based on gender identity (making such a policy a violation of Title IX), but would be allowed to use a multipronged assessment on whether or not to restrict transgender athletes from playing on their preferred team as they get older, go through puberty, and competition increases. The age of the students, the level of fairness, and the nature of the sport would be among the considerations.  According to the DOE, the proposed rule is intended to provide schools with a framework that would both protect students from “being denied equal opportunity” to school programs and activities and gives schools “flexibility” to develop their own policies. The proposed rules, like Title IX, would only apply to schools that receive federal funding.  Because enforcement of Title IX falls under the executive branch, it is subject to interpretation by each administration, and that interpretation frequently changes. The process of issuing these new changes to Title IX regulations on students’ eligibility for athletic teams is lengthy.  The next step for the proposed rules will be a public comment period that will be open for 30 days from the date of the NPRM’s publication in the Federal Register, with comments accepted online, after which time the DOE will review the comments, amend the language as it sees fit, then issue a new rule to its Title IX regulations on students’ eligibility for athletic teams.

A Fact Sheet and Proposed Rule Summary can be found here.

As Title IX continues to change and broaden its coverage, schools must stay familiar with the rules.

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