By Tyrone P. Thomas, Paul G. Lannon, Jeffrey J. Nolan, and Michael V. Fiorillo, of Holland & Knight
Highlights
- The U.S. Department of Education’s Office for Civil Rights (OCR) published on April 6, 2023, a Notice of Proposed Rulemaking (NPRM) about sex-related criteria used to limit or deny a student’s ability to participate in athletics.
- In sum, the NPRM would amend OCR’s Title IX regulations to allow sex-related criteria when the criteria achieve an important educational objective through the least harmful means to the affected students.
- OCR is accepting public comments on several aspects of the proposed rule through May 15, 2023.
The U.S. Department of Education’s Office for Civil Rights (OCR) published on April 6, 2023, a Notice of Proposed Rulemaking (NPRM) about sex-related criteria used to limit or deny a student’s ability to participate in athletics. The NPRM attempts to clarify when sex-related restrictions on participation in athletics are permissible under Title IX, the federal statute prohibiting sex discrimination in educational programs or activities at schools receiving federal financial assistance. In sum, the NPRM would amend OCR’s Title IX regulations at 34 CFR § 106.41 to allow sex-related criteria when the criteria achieve an important educational objective through the least harmful means to the affected students. The age level, competition level and type of sport will affect whether a policy is Title IX compliant. At its heart, the NPRM seeks to ensure equal athletic opportunities for all students, regardless of gender identity, by prohibiting discrimination against transgender athletes based on stereotypes or prejudice.
The NPRM is not a final rule. OCR currently seeks public comment on several aspects of the proposed rule, including whether the proposed rule promotes equal athletic opportunity regardless of sex, what educational objectives are “important” and if this term should be defined, how the regulation should differ based on age, competition level or type of sport, and how to minimize harm. OCR is accepting public comments on several aspects of the proposed rule through May 15, 2023.
Reasonable Regulation
Currently, OCR permits “reasonable” sex-related regulations in intercollegiate athletics based on “the nature of the particular sports.” A school may provide separate sports teams “for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” Otherwise, schools cannot exclude any person from participation in athletics on the basis of sex and must provide “equal athletic opportunity for members of both sexes.”
The current regulations in their substance and language neither expressly address transgender athletes nor recent developments in the law. For example, in Bostock v. Clayton County, the U.S. Supreme Court expanded transgender rights by holding discrimination based on sexual orientation or gender identity to be sex discrimination in violation of Title VII. 140 S. Ct. 1731, 1754 (2020). In June 2021, the Department of Education issued a notice of interpretation that articulated its position that the Bostock rationale applies to Title IX; this notice has been temporarily enjoined in 20 states due to a pending lawsuit, but it is effective in the other 30 states. President Joe Biden has also issued subsequent executive orders (E.O.) – E.O. 13988 and E.O. 14021 – that define discrimination based on sexual orientation or gender identity as forms of discrimination on the basis of sex. These orders direct the U.S. Secretary of Education to review all existing regulations under Title VII and Title IX to ensure consistency with this definition of sex discrimination. Thus, it is the Biden Administration’s unequivocal position that athletic participation policies that discriminate based on sexual orientation or gender identity could also be sex discrimination prohibited by Title IX. In crafting the NPRM, OCR considered these developments as well as the policies of national sport governing bodies, concerns of stakeholders and academic literature. In particular, the NPRM references the National Collegiate Athletic Association’s (NCAA) new Transgender Student-Athlete Participation Policy, which focuses on the applicable rules for an individual sport by its national governing body. This policy allows for a sport-by-sport policy determination approach to “preserve[] opportunity[ies] for transgender student-athletes while balancing fairness, inclusion and safety for all who compete.” The same flexibility and room for interpretation is present within the NPRM, discussed below, and reflects the variety of athletic contexts at issue.
Proposed Federal Standards
Between changing presidential administrations, legal challenges and differing interpretations, the current regulations provide little concrete guidance to schools on how to comply with Title IX with regards to transgender athletes. Some state legislatures have banned transgender athletes from participating on sports teams that are not consistent with their sex assigned at birth. OCR seeks to provide federal guidance by applying a form of intermediate scrutiny to sex-related criteria for sports participation.
The NPRM would require any sex-related criteria that limit or deny a student’s eligibility to participate in a sport to meet two requirements: 1) the criteria must be “substantially related to the achievement of an important educational objective,” and 2) must “minimize harms to the limited or denied student.” OCR recognizes that the interpretation of these requirements will depend greatly on the type of “sport, level of competition, and grade or education level.”
“Important educational objective” is not defined, but the NPRM provides two examples: “ensuring fairness in competition and prevention of sports-related injury.” These fairness or safety objectives must be “substantially related” to the sex-based criteria. Categorical or blanket policies would not pass muster under this standard. Schools cannot assume all transgender girls and women have the same physical abilities as cisgender boys and men, or “categorically exclude all transgender girls and women from participating on any female athletic team[].” Under the NPRM, such policies would not reflect a reasoned analysis regarding any safety or fairness objectives, but rather would be impermissibly discriminatory. Schools should always ask whether the important educational objective could be accomplished via criteria other than sex or gender identity. If yes, then sex-based criteria would not be permissible under the NPRM.
Beyond supporting an important educational objective, the NPRM requires a school to minimize harm. For example, if an institution were to adopt a policy that includes sex-related criteria for participation, the policy would need to minimize the harm caused by issues such as the “difficulty of obtaining documentation, risk of invasion of privacy or disclosure of confidential information.” Where a less harmful option is available, that option must be selected. Otherwise, the policy would not be consistent with the principles outlined in the NPRM.
Age level and the type of sport will also affect whether a school’s policies are consistent with the NPRM. Generally, sex-related participation criteria will be harder to justify for elementary and middle school athletic programs than for high school and collegiate programs. The type of sport also affects whether a policy will comply with the proposed regulation. Where a school chooses to limit or deny students’ eligibility based on sex, the sex-related criteria “must satisfy the proposed regulation as applied to that sport.” For example, limiting or denying an athlete’s participation in swimming on the basis of sex for the stated goal of preventing injury would likely be inconsistent with the proposed regulation.
The level of competition also affects whether a policy will comply with the proposed regulations. For this reason, OCR “expects sex-related eligibility criteria to be more common and more likely to satisfy the proposed regulation” in high school and at the postsecondary level. Similarly, schools would face a greater challenge justifying sex-related criteria for intramural or club programs compared to intercollegiate programs.
Conclusion and Takeaways
The legal landscape for transgender student-athletes is evolving swiftly. Some states have embraced policies allowing students to participate in sports consistent with their gender identities; others have enacted laws permitting participation only when consistent with sex assigned at birth. OCR’s proposed new rule is an attempt to provide federal guidance in this area. The NPRM would permit sex-related criteria for participation in athletics programs only if the sex-related criteria are substantially related to an important educational objective, and the criteria are applied through the least harmful means available. While it is clear OCR’s view currently aligns with the NCAA transgender policy, colleges and universities will need to continue to monitor and stay informed of interpretive approaches at the Olympic level as it relates to individual sport participation.
