United States: Proposed Title IX Regulations Affecting Athletic Team Eligibility

On April 13, 2023, the United States Department of Education (the "DOE") published proposed regulations intended to address participation of transgender students in school athletic programs. The proposed changes would revise existing rules under Title IX governing participation in men's and women's athletic programs. Since 1975, Title IX has required schools to provide equal opportunities for students regardless of sex. Said plainly by U.S. Secretary of Education Miguel Cardona, "Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination."

The proposed regulations would establish that school policies violate Title IX when they categorically ban transgender students from participating on athletic teams consistent with their gender identity. Additionally, the proposed regulations would allow schools to use sex-related criteria in their athletic eligibility policies when such criteria (1) substantially relate to important educational objectives and (2) can be implemented in a manner that minimizes harm against gender-minority students. Examples of "important educational objectives" include ensuring fairness in competition and preventing sports-related injury.

The proposed regulations also would allow schools to consider differences in grade levels, education levels, and competition when establishing athletic eligibility policies for students. Although the DOE expects that elementary school students will generally be able to participate in a manner that is consistent with their gender identity, it foresees potential limitations on gender minority students' participation in high school and college level athletics.

For the next 30 days, the public will have the opportunity to submit comments on the proposed regulations through the Notice and Comment Process. Comments may be submitted via the Federal Rulemaking Portal. Comments must be received on or before May 15, 2023.

Please note that these proposed regulations are not final rules and all schools covered by Title IX must continue to comply with Title IX's current application until the new rules are finalized. In the meantime, schools may wish to review these additional links to become familiar with the proposed rules:

• Title IX: Sex-Related Eligibility Criteria for Male and Female Athletes (published in Federal Register)

• Title IX: Sex-Related Eligibility Criteria for Male and Female Athletics (unofficial proposed regulations)

• Fact Sheet: U.S. Department of Education's Proposed Change to its Title IX Regulation on Students' Eligibility for Athletic Teams

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