When the Department of Education announced the 2022 Title IX NPRM last summer, the agency stated that it would address the issue of transgender participation in athletics in a separate rulemaking process. On April 6, 2023, the Department finally published the “Athletics NPRM” to address equal opportunity in athletics programs.
Before addressing the substance of the proposed rule, we want to review some vocabulary that is frequently used in the preamble and the rule itself.
Sex: refers to the biological sex assigned at birth (male, female, or intersex) that is listed on a birth certificate. This categorization is based solely on biological characteristics such as genitalia and chromosomes.
Gender Identity: A person’s core belief in relation to their gender that may or may not correspond to their sex at birth.
Transgender: Individuals whose gender identity differs from their sex assigned at birth. Many trans* individuals will transition to align their gender presentation with their identity. This can include surgery and hormone replacement therapy. It is important to note no transition is needed to be transgender.
Nonbinary: People who experience gender identity or expression outside of the typical gender binary (male and female).
Gender Nonconforming: Umbrella term used for people who do not follow typical gender stereotypes. An individual can be cisgender and still be gender nonconforming.
The Main Takeaway
In designing this proposed rule, the Department reiterates the value of athletics for young people and that its benefits should be made available to all students. By publishing this NPRM, the Department emphasizes its desire to expand athletic opportunities to students who have diverse gender identities. While Title IX contains provisions regarding male and female athletics teams, the Athletics NPRM creates a standard for schools to follow when they create “sex-related” eligibility criteria for students to participate in athletics.
Top Things to Know:
1. Schools May Not Categorically Ban Transgender Students from Participating in Athletics. Under proposed section 106.41(b)(1), schools would not be able to develop or implement a “one-size-fits-all policy” which “categorically bans” transgender students from competing on teams that align with their preferred gender identity.
2. What is Sex-Related Criteria? The proposed rule creates a standard for schools to follow when creating “sex-related” eligibility criteria to participate in athletics. If such criteria is related to a student’s sex characteristics and a student’s medical history or identification documents are used to determine a student’s ability to play, it would be subject to the proposed regulations.
3. Potential Differences in Higher Ed. and K12 Schools: When developing eligibility criteria, the proposed rule would require schools to take the grade/education level and level of competition into account. Because athletics at younger ages are less competitive, students may have more latitude to be on a team that matches their gender identity.
4. Any Limits on Participation must be “Substantially Related” to an Important Educational Objective. Under the proposed regulations, a school’s eligibility criteria cannot be based on “overbroad generalizations of transgender athletes.” For example, assumptions that transgender girls and women have a competitive advantage would not comply with the rule.
5. Shorter Comment Period: The Department announced that the proposed rule will be open for public comment for 30 days from the date the Athletics NPRM is published in the Federal Register. On April 13th, 2023 the NPRM was published in the Federal Register and the comment period will end on May 15, 2023.
To hear ICS’ analysis of the Athletics NPRM, please attend our Free Webinar, “Takeaways from the Athletics NPRM & Potential Impact on Title IX” on April 14, 2023 at 1pm EST. Click here to register!