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Title IX Proposed Rule Sets Standard for Restrictions on Transgender Students’ Participation on Single-Gender Sports Teams

April 17, 2023

On April 6, 2023, the Department of Education’s Office for Civil Rights (OCR) released a proposed rule to clarify the criteria schools are permitted to use to establish K-12 and college students’ eligibility to participate in single-gender sports teams. This follows several other changes—not in sports—that OCR proposed to Title IX regulations last summer, which are expected to be finalized next month. In developing the proposed rule on sports, OCR considered extensive public feedback, including thousands of public comments, recent policy changes by athletic associations, and legal precedent. According to OCR, the proposed rule is consistent with its longstanding policy position that Title IX should be applied in a flexible manner to include—not exclude—students’ participation.

The Biden administration’s proposed rule rejects a “one-size fits all” approach. It states that blanket bans of transgender athletes from participating on sports teams consistent with their gender identity—rather than their biological sex at birth—violate Title IX. That said, the rule also leaves open the possibility that schools could require criteria based on a student’s biological sex at birth for participating in sports. This would allow, in certain circumstances, schools to bar transgender students from participating in sports consistent with their gender identity. Under the proposed rule, criteria that would prevent a student from participating in a sport consistent with their gender identity must, “for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a single-gender team consistent with their gender identity would be limited or denied.”

Let’s look at each factor:

  • Substantial relation to important educational objective. This factor reflects longstanding precedent, most recently expressed in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), that calls for courts to apply intermediate scrutiny to sex-based discrimination. OCR’s proposed rule stresses that codifying or communicating disapproval of a student or that student’s gender identity is not an important educational objective. The proposed rule also states that criteria that assume all students assigned as males at birth possess an unfair physical advantage over all students assigned as females at birth would not comply with the department’s proposed regulation. The proposed rule, therefore, seemingly cuts against assumptions about transgender youth that are built into many state bans on transgender sports participation.1   
  • Level of competition. The proposed regulation would require schools to consider the level of competition in a sport. For example, while sex-based criteria might not be permitted for no-cut or recreational teams, they might be permitted for a varsity team, to ensure fairness in competition. This factor is more likely to be satisfied at higher grades as well.
  • Grade or education level. This factor recognizes that students at various grade levels are not similarly situated when it comes to sports, especially competitive sports. OCR would find acceptable few, if any, sex-related criteria at the elementary and middle-school levels, because the broader purpose of sports at these ages is to encourage participation, build skills, and encourage well-being. The proposed regulation leaves open the possibility that such criteria would be permissible at the high school and college levels due to what OCR says are concerns over “fairness in competition.”  
  • Sport. Schools must consider the sport at issue. This factor rejects the notion that transwomen and transgirl athletes would have a competitive advantage over cisgender women and girls in all sports. For example, there would be little reason for an elementary school to impose sex-related criteria to students participating in a kickball game. OCR’s sport-specific approach reflects a similar one taken by the NCAA in its recent call for member colleges and universities to follow the criteria set by each sport’s national governing body.2  For instance, USRowing recently declared that youth athletes—including youth, junior, high school, scholastic, and certain other levels—should be allowed to participate in rowing events according to their gender identity.3  The OCR’s proposed rule, though, does not go so far as to mandate that schools follow criteria set by a sport’s governing body—it requires only that schools consider the nature of the sport in question if they adopt sex-based criteria for participation. 
  • Minimizing harm. This factor recognizes the fact that banning transgender youth from participating in sports can be “extremely traumatic” and undermine a student’s social transition, because, among other reasons, it forces a student to disclose that they are transgender. Still, the proposed rule recognizes that Title IX regulations have been flexible through history and should continue to be flexible. To that end, the proposed rule notes that having separate, single-gender teams can at times advance rather than undermine overall equal opportunity in sports, especially given the historical lack of meaningful opportunities for women and girls. However, if a school can—but chooses not to—achieve its important educational objective by using sex-related criteria that would cause less harm, that school might not satisfy the proposed regulation, depending on the facts involved in such a case. Such a case might arise where a school considers only the sport, but fails to consider the grade level, outright banning transgender athletes from joining any team for that sport, when it could have adopted similar criteria only for higher grades. 

Before being enacted into law, the proposed rule will undergo an additional notice and comment period, which ends 30 days after its publication in the Federal Register. OCR expressly solicited comments on six directed questions, including (i) whether and how the permissibility of particular criteria should differ depending on factors such as the level of competition; and (ii) how schools can minimize harms to students whose eligibility to participate on teams consistent with their gender identity is limited or denied by a school’s sex-based criteria. We anticipate the final rule may provide more guidance on these and other issues raised by the proposed rule.

Conflict with State Law

At a press conference, Department of Education officials noted that once adopted, the proposed rule would be the “law of the land” and would preempt state laws banning transgender girls from participating in girls’ sports. Twenty states have passed such laws. On the very day the proposed rule was issued, the Supreme Court declined to disturb a lower court’s ruling that allowed a 12-year-old transgender girl in West Virginia to remain on her middle school track and cross-country teams while her lawsuit makes its way through the legal system. Although the Court did not provide any analysis when it denied West Virginia’s emergency appeal, at least two Justices dissented from the denial and opined that the case raised “an important issue that [the] Court is likely to be required to address in the near future.”

[1] See, e.g., Hecox v. Little, 479 F. Supp. 3d 930, 982 (D. Idaho 2020) (“[I]t appears the ‘absolute advantage’ between transgender and cisgender women athletes [claimed by defendants] is based on overbroad generalizations without factual justification.”).

[2] See NCAA, Transgender Student-Athlete Participation Policy (Jan. 2022) (NCAA 2022 Policy).

[3] USRowing, Gender Identity Policy (Feb. 13, 2023).  

[4] Movement Advocacy Project, “Equality Maps: Bans on Transgender Youth Participation in Sports” (April 6, 2023).

[5] West Virginia v. B.P.J, 598 U.S. ___ (2023).

[6] Id. (J. Alito, dissenting).  

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Apalla U. Chopra, an O’Melveny partner licensed to practice law in California, Anton Metlitsky, an O’Melveny partner licensed to practice law in New York and the District of Columbia, Marni Robinow, an O’Melveny counsel licensed to practice law in California, David Cohen an O’Melveny counsel licensed to practice law in New York, and Anna M. Rotrosen, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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