Department of Education Releases Title IX Rulemaking on Transgender Student Eligibility in School Athletics

On April 6, the U.S. Department of Education released a Notice of Proposed Rulemaking (NPRM) on student eligibility for athletic teams under Title IX. The proposed rulemaking focuses on transgender students’ eligibility to participate on athletic teams as legislation and policies at the federal, state and local levels have been introduced to ban transgender student participation in athletic programs.

Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a “one-size-fits-all” ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The Department further explains that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.

The NPRM comes after the Biden administration announced its intention to release such a proposed rule after it excluded language on transgender student eligibility in athletics in its June 2022 Title IX proposed rule. The rule comes as policymakers at the federal, state and local levels have introduced and passed legislation that bans transgender participation on women’s athletic teams. Most recently, the House of Representatives passed H.R. 734, the Protection of Women and Girls in Sports Act, out of the Education and the Workforce Committee, where it now awaits a full floor vote. The bill would prohibit federally-funded education programs or activities to operate, sponsor or facilitate athletic programs or activities that allow individuals of the male sex to participate in programs or activities that are designated for women or girls, defining “sex” as an individual’s reproductive biology and genetics at birth.

Public comments in response to the NPRM will be due 30 days from the date of publication in the Federal Register. CUPA-HR will work with other higher education associations to fully analyze the NPRM and respond accordingly.