Proposed Title IX rule change would limit bans on transgender athletes playing in sports

Published: Apr. 6, 2023 at 4:33 PM EDT

WASHINGTON (Gray DC) - As public debate intensifies over transgender students participation in school sports, the U.S. Department of Education is proposing a rule change that would limit one-size-fits all bans based on gender identity. However, it promises schools ‘flexibility’ in developing policies. The announcement came Thursday, shortly after the Supreme Court allowed a 12-year-old transgender girl in West Virginia to continue competing on her female middle school’s sports teams as a lawsuit over a state ban continues.

The proposed rule change to Title IX reads: “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.”

Public feedback will be accepted on the proposal for 30 days after the proposed rule change is published on the Federal Register. The publication is expected in the next coming weeks. More information on the rule change can be found on the U.S. Department of Education’s website.

The U.S. Department of Education added “the proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.”

“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages,” said U.S. Secretary of Education Miguel Cardona. “Beyond all the benefits to physical and mental health, playing on a team teaches students how to work hard, get along with others, believe in themselves, and build healthy habits that last a lifetime. Today’s proposed rule is designed to support Title IX’s protection for equal athletics opportunity. We welcome and encourage public comment on the proposed regulation and will continue working to ensure Title IX’s effective protection for all students.”

Title IX was signed into law nearly 50 years ago. Under the federal regulations, schools are required to provide equal athletic opportunities for students regardless of sex. The Department of Education believes the rule change would provide “much needed clarity for students, parents, and coaches” regarding Title IX. It said the rule change proposal was developed after conversations with many schools, students, parents, and coaches. The proposed rule would apply to institutions that receive federal funding, such as public K-12 schools, colleges, and universities.

The announcement comes as many states that wish to ban transgender athletes from school sports are already involved in legal battles regarding Title IX. On Friday, West Virginia Attorney General Patrick Morrisey said about the Biden administration’s new proposed rule change, “I will not stand idly by while this radical policy is implemented. My office will evaluate and pursue all legal options to block this scheme.”

Paul Smith of Georgetown University Law Center said the Biden administration’s rule is a ‘middle of the road’ approach. When asked if this proposed rule could be upheld by the court amid a slew of legal challenges, he said “if you’re the Biden administration, finding a way to split the difference makes a lot of sense. Of course, that makes some activists unhappy because it doesn’t guarantee that transgender students can play on the team consistent with their gender identity in every case. And it also makes some other people unhappy who don’t think transgender (students) should be participating in school sports on teams consistent with their gender identity at all. So it’s a split the difference approach, but it’s done in a way that any time a school says, No, you can’t play on the girls softball team or whatever team it is, they have to be able to justify that as it is important to serve the interests of fairness to the other students competition.”

He added, the proposed rule continues to recognize that the goal of students joining sports teams, in many cases, is for them to simply get the benefit of participating and learning sportsmanship and teamwork.

“I think you can see this rule as an effort to try to cool things off a little bit. It doesn’t take a sharply pro transgender position or a sharply anti transgender position. It tries to be reasonable and say everything depends on context. So, you know, whether that will work or not is a political question, and I’m no more qualified than anybody else, but that’s certainly what they’re trying to do here. And, you know, that said, I think litigation over the rights of transgender youth is going to continue to mount, in part because we’re seeing, in addition to legislation about sports, an awful lot of state legislation addressing medical care for transgender minors, and whether or not the decisions of doctors and parents and the students themselves can be vetoed by state law,” Smith said.

In February 2023, the Department released resources for students, parents, coaches, and school communities to help them assess whether their athletic programs are fulfilling Title IX’s promise to women and girls.