By Ellen J. Staurowsky, Ed.D., Senior Writer, Professor, Sports Media, Ithaca College, staurows@ithaca.edu
In April of 2023, the U.S. Department of Education (USDOE) under the Biden Administration issued a notice of proposed rulemaking (NPRM) regarding Title IX regulations pertaining to discrimination against transgender athletes. In the ensuing weeks of public comment following the NPRM, the USDOE received more than 154,000 comments, some supportive and others opposed (Modan, 2023). After multiple delays brought on by numerous lawsuits and contentious public debate, the USDOE withdrew the Athletics NPRM on December 20, 2024.
The proposed amending process was designed to do two things. First, there was an intention to establish a standard for schools to use in determining the eligibility of a student to participate on an athletic team consistent with their gender identities. Second, the proposed process was also intended to clarify for schools what their obligations were relative to using sex-related criteria to limit or deny access to transgender athletes within Title IX’s nondiscrimination mandate.
Under the proposed rule, efforts to categorically prevent transgender athletes from participating on teams that align with their gender identities would have been considered sex discrimination under Title IX. The rule further considered that if, by virtue of issues related to fairness and safety, a transgender athlete was limited or denied access to athletic participation, schools would need to demonstrate a balancing of educational interests while minimizing harm to transgender athletes. The proposed rule provided criteria for schools to use in the development of policies to guide decision making including differences in grade level, competition level, and types of sports (Arundel, 2024).
A rapid shift in the legislative and regulatory landscape pertaining to what constitutes sex discrimination under Title IX is underway as President Donald Trump returns to the White House and as a Republican-controlled U.S. Congress settles in. On January 14, 2025, the U.S. House of Representatives, with a vote of 218 in favor and 206 opposed, approved a bill entitled Protection of Women and Girls in Sports Act. As per the language of the bill, “sex shall be recognized based solely on a person’s reproductive biology and genetics at birth.” The bill was received in the U.S. Senate on January 15,2025.
Further, President Trump has vowed to issue an executive order banning transgender athletes from competing on teams that align with their gender identifies (Migdon, 2024). His clear stance on this issue may signal that January 2021 guidance issued by the Office of General Counsel for the Department of Education under Trump’s previous administration regarding the U.S. Supreme Court’s decision in Bostock v. Clayton County would be brought back. The guidance read in part, “ it “seem[ed] clear that if a recipient chooses to provide ‘separate teams for members of each sex … then it must separate those teams solely on the basis of biological sex, male or female, and not on the basis of transgender status or sexual orientation, to comply with Title IX” (Richey, 2021).
References
Arundel, K. (2024, December 23). Education Department withdraws proposed Title IX athletics rule. K-12 Dive. https://www.k12dive.com/news/title-ix-athletics-proposed-rule-transgender-LGBTQ-sports/736222/
H.R.28 – Protection of Women and Girls in Sports Act of 2025. https://www.congress.gov/bill/119th-congress/house-bill/28
U.S. Department of Education. (2023, April). Notice of proposed rulemaking: Nondiscrimination on the basis of sex in education programs or activities receiving federal financial assistance: Sex-related eligibility criteria for male and female athletic teams. https://www.ed.gov/sites/ed/files/about/offices/list/ocr/docs/t9-ath-nprm.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
Migdon, B. (2024, October 16). Trump suggests he will ban transgender athletes through executive action. The Hill. https://thehill.com/homenews/campaign/4936727-trump-bans-transgender-athletes/
Modan, N. (2023, April 6). Ed Dept issues Title IX rule proposal on transgender sports participation. K-12 Dive. https://www.k12dive.com/news/Title-IX-transgender-athletics-proposal-regulation/647047/
Richey, K. (2021, January 8). Memorandum regarding Re: Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020). https://www.ed.gov/media/document/ogc-memorandum-01082021pdf
U.S. Department of Education. (2024, December 20). Notice of proposed rulemaking: withdrawn. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal
Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams;
Withdrawal. Docket ID ED-2022-OCR-0143. https://public-inspection.federalregister.gov/2024-30921.pdf
