Title IX Athletics NPRM Public Comments – ICS’ Top Takeaways

May 4, 2023

When the Athletics NPRM was released last month, the Department announced that the public comment period would last 30 days, formally ending on May 15, 2023. As of today, the Department has received nearly 100,000 comments, a significant amount given the length of the proposed amendment. Although May 15th is a few weeks away, our team has identified the top takeaways from the public comments on the Athletics NPRM. 

#1: Who Should Determine Eligibility Criteria?: Many stakeholders believe that districts or universities should not make the ultimate decisions on whether transgender athletes can compete in a way that is consistent with their gender identity. But commenters differed on the approach they’d prefer. Some said that the final rule should allow local school boards or athletic associations to design eligibility criteria, while others thought the proposed rule provided the flexibility they desired. 

#2:  Concerns About Fairness in Competition: While the proposed regulations would permit recipients to take fairness into account when developing eligibility criteria, some commenters expressed concern that the proposed rules would threaten competitive opportunities for cisgender female athletes, especially in Higher Ed. athletics. Others were concerned that allowing schools to utilize a “fairness in competition exception” to restrict transgender students’ participation unfairly puts the burden on the athlete to demonstrate that their participation doesn’t undermine fairness. 

#3 K-12 v. Higher Ed Eligibility Criteria: Some commenters were divided about the proposed rule’s distinctions between K12 and Higher Ed. eligibility criteria. Many commenters supported permitting young students to participate on the team that matches their gender identity, especially because the teams provide a crucial social opportunity for students. Some commenters, however, were concerned that a student who was able to play on their desired team would potentially not be able to compete as they get older and the impact that may have on the student. 

#4: Clarity for Intramural and Club Sports: Commenters also noted that the proposed regulations do not specifically address intramural or club sports. One commenter noted that the level of competition in clubs may vary depending on the sport or school, and that without clarity, institutions risk inconsistent policies and a heightened risk for litigation.  Others said that they thought sex based eligibility criteria was appropriate for “competitive teams” but not appropriate for club teams, where the stakes are often lower and is often a social not a competitive environment. 

#5: Implementation Challenges: Another theme among the comments was concerns about who would be responsible for developing and implementing the eligibility criteria.  Administrators asked for additional training materials and administrative support to ensure the relevant team members were knowledgeable about the rule’s requirements and relevant terminology. Others were concerned that given the relatively small number of student athletes who identify as transgender, non-binary, gender non-conforming, or who are intersex, the proposed rules were not appropriate at this time. 

#6: Faith-Based Concerns: Given the various court cases about the scope of religious freedom, using preferred names, or admitting transgender students, some commenters were concerned that the will be unfairly exposed to legal liability. Other commenters also asked the Department for more clarification about how to obtain a religious exemption. 

#7: Timeline and Effective Date: In a letter to Secretary Cardona, Attorney Generals of 23 states asked the Department to extend the comment period to 90 days (which would end on July 12, 2023). The AGs argue that the time frame does not give them a “meaningful opportunity” to comment and that the current time frame violates the Administrative Procedures Act.  Some administrators were also concerned that any implementation date would run parallel to the 2022 Title IX regulations, if they are finalized in May. 

#8: State Law Conflicts: Many commenters were concerned about how the Athletics NPRM, if adopted as proposed, would interact with state laws that restrict transgender athletes from participating on their desired sports team. While some acknowledged federal law has higher authority than state law, some commenters were concerned that an institution would be stuck in the middle depending on where they live. 

#9: Concerns from Middle School Educators: Commenters who work in middle schools were particularly uneasy about the proposed rule’s standards on sex-based eligibility criteria for middle schools versus elementary schools. For some, the elementary school standard (full participation based on gender identity) should extend to middle schools as well. One teacher stated that there was no substantial competitive difference between the two grade levels and that a different standard would isolate student athletes when they leave elementary school. 

#10: What is an Educational Objective? The Department specifically asked commenters “what educational objectives are sufficiently important to justify imposing sex-related criteria” that would limit a student’s eligibility to participate in athletics. Many commenters urged the Department to provide more clarity on what qualifies as an “educational objective.” Some stated that fairness in competition would be a sufficient objective, while others believe that without more clarity, this undefined term would allow schools to target transgender athletes.  

If you would like to comment on the proposed rule, comments may be submitted electronically at Regulations.gov.  The complete text of the Athletics NPRM can also be found at the Federal Register.  Our team is dedicated to ensuring you have the most up to date regulatory information and providing you policy support when proposed rules are finalized. To see additional resources on the Athletics NPRM, check out our page on icslawyer.com.