On April 6, the Biden Administration issued a notice of proposed rulemaking to Title IX applicable to the “narrow category of athletic eligibility criteria.” Specifically, the rule, which covers 115 pages, aims to regulate sex-related eligibility criteria that affects a student’s ability to play on a male or female sports team that aligns with their gender identity.
The proposed rule would prohibit K-12 schools and universities that receive federal funds from creating total bans on transgender student participation on teams that match their gender identity. However, the proposed rule allows schools to limit transgender student participation in sports to teams that match their sex assigned at birth based on considerations of the type of sport, the level of competition and the grade or educational level that the limit applies to. Under the proposed rule, any criteria established by local educational agencies limiting student opportunities in sports must be substantially related to the achievement of an important educational objective and be implemented in a manner to minimize any harm to students whose opportunities to participate on a sports team consistent with their gender identity are either limited or denied because of the criteria.
The notice of proposed rulemaking provides a detailed analysis of factors that must be considered if a school implements sex-based criteria for a transgender student’s participation on a sports team consistent with their gender identity. It provides a rationale and examples of how the type of sport, level of competition, and grade or education level matters to determine whether there is a substantial relationship to an important educational objective and whether the harm to students who are being limited or prohibited from participating is being minimized.
For example, the proposed rule emphasizes that sports at a higher grade level and high degree of competition will more readily support a limit on transgender student participation. Sports opportunities provided to elementary- and middle school-aged children, as described in the proposed rule, serve a significant interest of allowing children to explore foundational physical, emotional, interpersonal and academic benefits and limiting those opportunities would create great harm for transgender students such as “negative health and well-being consequences and long-term loss of opportunity.” According to the Department of Education, this harm would not be as easily found in higher levels of competition and at higher grade levels.
Additionally, the proposed rule explains that “not all differences among students confer a competitive advantage or raise concerns about sports-related injury in every sport.” Competitive advantage and sports-related injury are the two specific educational objectives that the proposed rule focused on when describing how the various criteria can be met. While the harms described above would not be a great concern for higher grade level sports, concerns about fairness and prevention of injury may increase if, for example, transgender women were permitted to play on a female soccer team at the high school level. Under the new rule, this scenario may support a biological sex-based eligibility criteria.
The next phase in the rulemaking process is the comment period during which the public can submit comments on the rule to the Department of Education. After the 30-day comment period, the Department of Education will consider the comments and make adjustments to the rule as they see fit.
This proposed rule was issued on the same day as the U.S. Supreme Court’s ruling in a case related to transgender students in sports. In the case, the district court upheld a West Virginia law that limits sports participation based on a student’s biological sex at birth. The student plaintiff appealed the lower court’s ruling to the U.S. Court of Appeals for the Fourth Circuit without analysis and requested a stay of the lower court’s decision pending the outcome of the appeal. The Fourth Circuit approved the stay. West Virginia appealed to the U.S. Supreme Court to overturn the stay, but the Court denied the stay in a one sentence ruling.
Based on the ruling, the student will be allowed to continue participating on sports teams that match their gender identity pending the outcome of the appeal in the Fourth Circuit. The Court gave no analysis of its ruling, but Justices Samuel Alito and Clarence Thomas issued a brief dissent. Alito argued, among other things, that courts should not issue stays that forbid enforcement of state law without providing an explanation, which neither the Supreme Court nor the Fourth Circuit provided.