Lia Thomas, the first openly transgender athlete to win an NCAA title, set the internet ablaze last year after winning an NCAA Division I women’s swimming championship. The controversy sparked a conversation regarding gender identity, fairness, and inclusion in school athletics. The athletics conversation is such a hot button issue that when the Department of Education issued its proposed Title IX regulations in July 2022, the agency stated that it would address athletics in a separate proposed rule.

In a recent publication, the Department of Education released a notice of proposed rulemaking regarding athletic eligibility. The proposed rule is a response, according to the Department, to the uncertainty regarding transgender students’ participation in sports. For those wondering, the proposed rule affirms that schools can offer separate teams for men/boys and girls/women “in certain circumstances.” However, the eligibility criteria will likely need to be different from the criteria that were in place when you were growing up.

In a nutshell, under the proposed rule, school policies that “categorically ban” transgender students from participating on sports teams consistent with their gender identities would violate Title IX. Despite this prohibition on a total ban, the proposed rule would allow schools to adopt policies that would limit transgender students’ participation under certain circumstances. Schools would need to develop eligibility criteria that account for the nature of the sport, the educational objective, the level of competition, and the age and education level of the students. Ultimately, the policies should be “substantially related to the achievement of an important educational objective” and minimize harm to students whose opportunity to participate on a team consistent with their identity would be limited or denied. This proposed rule may sound simple. But, the rule was informed by court decisions and would require considerable deliberation and understanding of the regulations. Schools would be required to think beyond who is allowed to play on a team and also think about the requirements for identification documents (e.g., birth certificates) and physical examinations for students.

This proposed rule would affect all schools that receive federal funding, including private K-12 schools, colleges and universities. While the official version of the proposed rule has not yet been published, schools should take a close look at their policies and begin considering how their current athletics eligibility criteria would fare under the proposed athletics rule.

Gunster will continue to monitor updates regarding Title IX regulations for schools. Please direct any questions to Gunster attorney Nalani Gordon.


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