Proposed Rulemaking on Athletic Eligibility Under Title IX for Transgender Students Participation
After two years of discussions, in early April the United States Department of Education (Department) released a proposed rule change related to a transgender student’s ability to participate on athletic teams that are consistent with the student’s gender identity.
04.27.23
The proposed rule would apply to public schools, as well as colleges and universities and other educational institutions that receive federal funding. If approved, the rule would prohibit these educational institutions from implementing a “one-size-fits-all” policy that unilaterally bans transgender students from participating on teams consistent with their gender identity.
The proposal also provides schools with a framework for developing eligibility criteria that would protect students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies. Such criteria must take into consideration the sport, the level of competition and the grade or education level of the athletes.
While the proposed rule applies to K-12, the Department expects that elementary school students would generally be able to participate on school sports teams consistent with their gender identity. However, the Department also acknowledged that athletic teams vary in the level of competition, thus, educational institutions will be required to take into account the level of competition. Some teams are “no cut,” meaning every student who signs up makes the team, others are highly selective. Sex-related eligibility criteria that restrict students from participating consistent with their gender identity would be required to reflect these differences in competition.
If you have any questions regarding these proposed changes to Title IX or would like to schedule Title IX training for your educational institution, please contact any Klehr Harrison Education Industry Group member.
Co-Author Bill Matthews is the Chair of the Corporate & Securities Department. Co-author Leonard Altieri is an associate in the Real Estate & Finance Department.