As schools and institutions of higher education anticipate the release of new Title IX regulations this May, on Thursday, April 6, the U.S. Department of Education (the “Department”) released a new notice of proposed rulemaking relating to athletic eligibility under Title IX (the “Athletics NPRM”). The Athletics NPRM was forecast by the Department in its proposed Title IX regulations published in July 2022. According to the Department, the Athletics NPRM “would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity,” but allow schools to enforce some limits on transgender athletes’ participation.

Currently, Title IX provides that when selection for an athletic team is based on competitive skill or the activity involved is a contact sport, a school may offer sex-separate teams. However, where a school operates or sponsors a team in a particular sport for one sex without such a team for members of the other sex, and the 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. Title IX further requires that a school provide equal opportunity in its athletic program as a whole. Though the Department’s Office for Civil Rights has issued various interpretations of how Title IX applies to transgender students since 2016, Title IX does not expressly address the criteria, if any, that a school could use to determine eligibility to participate on male or female athletic teams. The Athletics NPRM proposes to change that fact.

According to the Department, the purpose of the Athletics NPRM is to “propose a regulatory standard under Title IX that would govern a recipient’s adoption or application of sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity[.]” The Athletics NPRM would not prohibit the use of sex-related criteria altogether, but instead require that such criteria for each sport, level of competition, and grade: “(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.” In explaining the proposed regulations, the Department stated that it “recognized that prevention of sports-related injury is an important educational objective in recipients’ athletic programs and that—as courts have long recognized in cases involving sex-separate athletic teams—fairness in competition may be particularly important for recipients in some sports, grade and education levels, and levels of competition.”

The Athletics NPRM will be open for public comment for 30 days from its date of publication in the Federal Register. The unofficial version is available here and the Department’s Fact Sheet is available here.