Proposed Rule2023-07601
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
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 13, 2023
Issuing agencies
Education Department
Abstract
The U.S. Department of Education (Department) proposes to amend its regulations implementing Title IX of the Education Amendments of 1972 (Title IX) to set out a standard that would govern a recipient's adoption or application of sex-related criteria that would limit or deny a student's eligibility to participate on a male or female athletic team consistent with their gender identity. The proposed regulation would clarify Title IX's application to such sex- related criteria and the obligation of schools and other recipients of Federal financial assistance from the Department (referred to below as "recipients" or "schools") that adopt or apply such criteria to do so consistent with Title IX's nondiscrimination mandate.
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[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Proposed Rules]
[Pages 22860-22891]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07601]
[[Page 22859]]
Vol. 88
Thursday,
No. 71
April 13, 2023
Part V
Department of Education
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34 CFR Part 106
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; Proposed Rule
Federal Register / Vol. 88, No. 71 / Thursday, April 13, 2023 /
Proposed Rules
[[Page 22860]]
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DEPARTMENT OF EDUCATION
34 CFR Part 106
[Docket ID ED-2022-OCR-0143]
RIN 1870-AA19
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
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The U.S. Department of Education (Department) proposes to
amend its regulations implementing Title IX of the Education Amendments
of 1972 (Title IX) to set out a standard that would govern a
recipient's adoption or application of sex-related criteria that would
limit or deny a student's eligibility to participate on a male or
female athletic team consistent with their gender identity. The
proposed regulation would clarify Title IX's application to such sex-
related criteria and the obligation of schools and other recipients of
Federal financial assistance from the Department (referred to below as
``recipients'' or ``schools'') that adopt or apply such criteria to do
so consistent with Title IX's nondiscrimination mandate.
DATES: Comments must be received on or before May 15, 2023.
ADDRESSES: Comments must be submitted via the Federal eRulemaking
Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. However, if you require an
accommodation or cannot otherwise submit your comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact the program contact person listed
under FOR FURTHER INFORMATION CONTACT. Comments that are not submitted
via <a href="https://www.regulations.gov">https://www.regulations.gov</a> will not be accepted absent such a
request. The Department will not accept comments submitted after the
comment period closes. To ensure that the Department does not receive
duplicate copies, please submit your comments only once. Additionally,
please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Please go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> to submit your comments electronically. Information
on using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including instructions for
finding a rule on the site and submitting comments, is available on the
site under ``FAQ.''
Note: The Department's policy is generally to make comments
received from members of the public available for public viewing on the
Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Therefore,
commenters should include in their comments only information about
themselves that they wish to make publicly available. Commenters should
not include in their comments any information that identifies other
individuals or that permits readers to identify other individuals. If,
for example, your comment describes an experience of someone other than
yourself, please do not identify that individual or include information
that would allow readers to identify that individual. The Department
reserves the right to redact at any time any information in comments
that identifies other individuals, includes information that would
allow readers to identify other individuals, or includes threats of
harm to another person.
FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of
Education, 400 Maryland Ave. SW, PCP-6125, Washington, DC 20202.
Telephone: 202-245-7705. You may also email your questions to
<a href="/cdn-cgi/l/email-protection#4a1e730b3e22262f3e232939041a18070a2f2e642d253c"><span class="__cf_email__" data-cfemail="4c18750d3824202938252f3f021c1e010c2928622b233a">[email protected]</span></a>, but as described above, comments must be
submitted via the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Department's July 2022 Proposed Rulemaking
On July 12, 2022, the Department published in the Federal Register
a notice of proposed rulemaking to amend its regulations implementing
Title IX (July 2022 NPRM). 87 FR 41390 (July 12, 2022), <a href="https://www.federalregister.gov/documents/2022/07/12/2022-13734/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal">https://www.federalregister.gov/documents/2022/07/12/2022-13734/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal</a>. In the July 2022 NPRM, the Department
announced plans to issue a separate notice of proposed rulemaking to
address whether and how the Department should amend its Title IX
regulations to clarify what criteria, if any, a recipient of Federal
funding \1\ should be permitted to use to establish students'
eligibility to participate on a particular male or female athletic
team. 87 FR 41537. This notice of proposed rulemaking, referred to
below as the Athletics NPRM, addresses that issue. The comment period
for the July 2022 NPRM closed on September 12, 2022.
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\1\ The text of Title IX states that the statute applies to
``any education program or activity receiving Federal financial
assistance.'' 20 U.S.C. 1681(a). The definition of the term
``Federal financial assistance'' under the Department's Title IX
regulations is not limited to monetary assistance, but encompasses
various types of in-kind assistance, such as a grant or loan of real
or personal property, or provision of the services of Federal
personnel. See 34 CFR 106.2(g)(2) and (3). Throughout this preamble,
terms such as ``Federal funding,'' ``Federal funds,'' and
``federally funded'' are used to refer to ``Federal financial
assistance,'' and are not meant to limit application of the statute
or its implementing regulations to recipients of certain types of
Federal financial assistance.
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Purpose of This Regulatory Action
The purpose of this regulatory action, the Athletics NPRM, is to
propose a regulatory standard under Title IX that would govern a
recipient's adoption or application of sex-related criteria that would
limit or deny a student's eligibility to participate on a male or
female athletic team consistent with their gender identity (referred to
below as ``sex-related criteria'' or ``sex-related eligibility
criteria''). The proposed regulation also would provide needed clarity,
in response to questions from stakeholders, on how recipients can
ensure that students have equal opportunity to participate on male and
female athletic teams as required by Title IX.
In particular, the Department proposes amending Sec. 106.41(b) of
its Title IX regulations to provide that, if a recipient adopts or
applies sex-related criteria that would limit or deny a student's
eligibility to participate on a male or female athletic team consistent
with their gender identity, those criteria 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
male or female team consistent with their gender identity would be
limited or denied. As discussed below, the proposed regulation would
not prohibit a recipient's use of sex-related criteria altogether.
Instead, the proposed regulation would require that a recipient meet
this standard for any sex-related criteria that would limit or deny
students' eligibility to participate on a male or female team
consistent with their gender identity. The Department recognizes that
prevention of sports-related injury is an important educational
objective in recipients' athletic programs and that--as courts have
long recognized in cases involving
[[Page 22861]]
sex-separate athletic teams--fairness in competition may be
particularly important for recipients in some sports, grade and
education levels, and levels of competition. The Department anticipates
that some uses of sex-related eligibility criteria would satisfy the
standard in the proposed regulation in some sports, grade and education
levels, and levels of competition.
The Department makes this proposal based on an extensive review of
its regulations implementing Title IX, as well as the statute's text
and legislative history; Federal and State case law; relevant State
laws and the policies of schools and athletic associations; live and
written comments received during a nationwide virtual public hearing on
Title IX held in June 2021; and other information provided by
stakeholders. Executive Order on Regulatory Planning and Review, Exec.
Order No. 12866, 58 FR 51735 (Oct. 4, 1993), <a href="https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf">https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf</a>.
Costs and Benefits
As further detailed below in the Regulatory Impact Analysis, the
Department estimates that the total monetary cost to recipients of the
proposed regulation over 10 years would be in the range of $23.4
million to $24.4 million, assuming a seven percent and three percent
discount rate, respectively. Because of the lack of available
quantitative data, the Department cannot fully quantify the economic
impact of the proposed regulation. The Department believes that the
benefits associated with the proposed regulation--providing a standard
to clarify Title IX obligations for recipients that adopt or apply sex-
related eligibility criteria and protecting students' equal opportunity
to participate on male and female teams consistent with Title IX--far
outweigh the costs.
In particular, the Department believes the proposed regulation
would offer greater clarity regarding how a recipient can comply with
its nondiscrimination obligation under Title IX if the recipient offers
an athletic program and adopts or applies sex-related criteria that
would limit or deny a student's eligibility to participate on a male or
female athletic team consistent with their gender identity. The
Department recognizes that there is a valuable, even if not readily
quantifiable, benefit of increasing students' equal opportunity to
participate consistent with their gender identity under sex-related
eligibility criteria that meet the proposed regulation's requirements,
which some recipients' current eligibility criteria may not provide.
The Department also recognizes that, without the proposed regulation's
requirements for a recipient's sex-related eligibility criteria, some
students may suffer harm as a result of being unable to gain the
benefits associated with equal opportunity to participate on athletic
teams at school.
Participation in team sports has been associated with many valuable
physical, emotional, academic, and interpersonal benefits for students,
and athletic participation has the potential to help students develop
skills that benefit them in school and throughout life, including
teamwork, discipline, resilience, leadership, confidence, social
skills, and physical fitness. See, e.g., Scott L. Zuckerman et al., The
Behavioral, Psychological, and Social Impacts of Team Sports: A
Systematic Review and Meta-analysis, 49 Physician & Sports Med. 246
(2021); Ryan D. Burns et al., Sports Participation Correlates with
Academic Achievement: Results From a Large Adolescent Sample Within the
2017 U.S. National Youth Risk Behavior Survey, 127 Perceptual & Motor
Skills 448 (2020); President's Council on Sports, Fitness & Nutrition
Sci. Bd., Benefits of Youth Sports (Sept. 17, 2020), <a href="https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf">https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf</a>; Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910,
916 (7th Cir. 2012) (noting that ``[s]tudies have shown that sports
participation provides important lifetime benefits to participants''
(quoting Dionne L. Koller, Not Just One of the Boys: A Post-Feminist
Critique of Title IX's Vision for Gender Equity in Sports, 43 Conn. L.
Rev. 401, 413 (2010))).
The Department also recognizes that a recipient could incur some
costs in complying with the proposed regulation if it adopts or applies
certain sex-related eligibility criteria for participation on male or
female athletic teams. The Department acknowledges that past agency
statements on Title IX's coverage of discrimination based on gender
identity have varied, and the proposed regulation would shift away from
some of those statements. The Department believes that any costs
associated with an individual recipient's compliance would be minimal
if the proposed regulation is made final. For example, the proposed
regulation may require updating of existing policies or training
materials, but the Department does not expect that the proposed
regulation would require other types of expenditures.
Invitation to Comment: The Department invites you to submit
comments regarding the proposed regulation. To ensure that your
comments have the maximum effect on developing the final regulation,
you should identify clearly the specific part of the proposed
regulation or directed question that each of your comments addresses.
The Department also invites you to assist us in complying with the
specific requirements of Executive Orders 12866 and 13563 (explained
further below) and their overall goal of reducing the regulatory burden
that might result from the proposed regulation. Please let the
Department know of any further ways it may reduce potential costs or
increase potential benefits, while preserving the effective and
efficient administration of the Department's programs and activities.
The Department also welcomes comments on any alternative approaches to
the subjects addressed by the proposed regulation.
During and after the comment period, you may inspect public
comments about the proposed regulation by accessing <a href="http://Regulations.gov">Regulations.gov</a>.
You may also inspect the comments in person. Please contact the person
listed under FOR FURTHER INFORMATION CONTACT to make arrangements to
inspect the comments in person.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: Upon request, the Department will provide an
appropriate accommodation or auxiliary aid to an individual with a
disability who needs assistance to review the comments or other
documents in the public rulemaking record for the proposed regulation.
To schedule an appointment for this type of accommodation or auxiliary
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Background
The mission of the Department's Office for Civil Rights (OCR) is to
ensure equal access to education and to promote educational excellence
through vigorous enforcement of civil rights in our Nation's schools.
One of the Federal civil rights laws that OCR enforces is Title IX,
which prohibits discrimination on the basis of sex under education
programs or activities that receive Federal financial assistance. 20
U.S.C. 1681-1688. Athletic programs have long been recognized by
Congress, the Department, and Federal courts as an integral part of a
recipient's education program or activity subject to Title IX. See,
e.g., Education Amendments of 1974, Public Law 93-380, section 844, 88
Stat. 484, 612 (Javits Amendment); see also U.S. Dep't of Health,
Educ., and
[[Page 22862]]
Welfare, Final Rule: Nondiscrimination on the Basis of Sex in Education
Programs and Activities Receiving or Benefiting from Federal Financial
Assistance, 40 FR 24128, 24134 (June 4, 1975) (citing cases); U.S.
Dep't of Health, Educ., and Welfare, Office for Civil Rights, A Policy
Interpretation: Title IX and Intercollegiate Athletics, 44 FR 71413
(Dec. 11, 1979) (1979 Policy Interpretation), <a href="https://www.govinfo.gov/content/pkg/FR-1979-12-11/pdf/FR-1979-12-11.pdf">https://www.govinfo.gov/content/pkg/FR-1979-12-11/pdf/FR-1979-12-11.pdf</a> (also available at
<a href="https://www.ed.gov/ocr/docs/t9interp.html">https://www.ed.gov/ocr/docs/t9interp.html</a>); N. Haven Bd. of Educ. v.
Bell, 456 U.S. 512, 516, 531-32, 532 n.22 (1982) (noting the broad
sweep of Title IX; that the original Title IX regulations, reviewed by
Congress, covered athletics; and that a Senate resolution disapproving
the regulations' application to athletics was introduced but not
``acted upon'').
In June 2020, the Supreme Court issued its decision in Bostock v.
Clayton County, 140 S. Ct. 1731 (2020), holding that discrimination
based on sexual orientation or gender identity is sex discrimination
under Title VII of the Civil Rights Act of 1964. In January 2021,
President Joseph R. Biden, Jr. issued Executive Order 13988 on
Preventing and Combating Discrimination on the Basis of Gender Identity
or Sexual Orientation, which set out this Administration's policy ``to
prevent and combat discrimination on the basis of gender identity or
sexual orientation, and to fully enforce Title VII [of the Civil Rights
Act of 1964] and other laws that prohibit discrimination on the basis
of gender identity or sexual orientation.'' Executive Order on
Preventing and Combating Discrimination on the Basis of Gender Identity
or Sexual Orientation, Exec. Order No. 13988, 86 FR 7023 (Jan. 25,
2021), <a href="https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf">https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf</a>. Executive Order 13988 directed the Secretary of Education,
in consultation with the Attorney General, to ``review all existing
orders, regulations, guidance documents, policies, programs, or other
agency actions'' promulgated under any statute or regulation that
prohibits sex discrimination for their consistency with the stated
policy. Id.
The President subsequently issued Executive Order 14021 to ensure
``that all students [are] guaranteed an educational environment free
from discrimination on the basis of sex, including discrimination in
the form of sexual harassment, which encompasses sexual violence, and
including discrimination on the basis of sexual orientation or gender
identity.'' Executive Order on Guaranteeing an Educational Environment
Free from Discrimination on the Basis of Sex, Including Sexual
Orientation or Gender Identity, Exec. Order No. 14021, 86 FR 13803
(Mar. 11, 2021), <a href="https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf">https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf</a>. This Executive Order, like Executive Order 13988,
directed the Secretary of Education, in consultation with the Attorney
General, to review all existing regulations, orders, guidance
documents, policies and any other similar agency actions for
consistency with Title IX, other governing laws, and the stated policy.
As these Executive Orders directed, the Department extensively
reviewed its Title IX regulations and policy documents for consistency
with Title IX's statutory prohibition on sex discrimination in
federally funded education programs or activities. Based on this review
and consideration of, among other things, substantial input from
stakeholders, the Department published the July 2022 NPRM to amend its
regulations implementing Title IX. 87 FR 41390.
In the course of its review, the Department also received feedback
that the current regulations do not explicitly address the criteria, if
any, a recipient may use to determine a student's eligibility to
participate on a male or female athletic team consistent with Title IX
and the Department's regulations. Based on this review and
consideration of substantial input from stakeholders, the Department
proposes amending its current regulations to address the unique
circumstances of male and female athletic teams consistent with Title
IX's prohibition on discrimination on the basis of sex. In particular,
this Athletics NPRM proposes amending the Department's Title IX
regulations to set out a standard that would govern a recipient's
adoption or application of sex-related criteria that would limit or
deny a student's eligibility to participate on male or female athletic
teams consistent with their gender identity.
History of Title IX's Application to Athletic Programs
Enacted in 1972, Title IX provides that ``[n]o person in the United
States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a). Title IX includes several statutory exemptions and
exceptions from its coverage, including for the membership practices of
certain organizations, admissions to private undergraduate colleges,
educational institutions that train individuals for the military
services or merchant marine, and educational institutions that are
controlled by a religious organization to the extent that application
of Title IX would be inconsistent with the religious tenets of the
controlling organization. 20 U.S.C. 1681(a)(1)-(9). Title IX authorizes
and directs the Department, as well as other agencies, ``to effectuate
the provisions of section 1681 of this title with respect to such
program or activity by issuing rules, regulations, or orders of general
applicability which shall be consistent with achievement of the
objectives of the statute authorizing the financial assistance in
connection with which the action is taken.'' 20 U.S.C. 1682.
In 1974, Congress enacted the Javits Amendment in response to
concerns that Title IX would disrupt existing practices in
intercollegiate athletics. It read:
The [Department of Health, Education, and Welfare (HEW)]
Secretary shall prepare and publish, not later than 30 days after
the date of enactment of this Act, proposed regulations implementing
the provisions of title IX of the Education Amendments of 1972
relating to the prohibition of sex discrimination in federally
assisted education programs which shall include with respect to
intercollegiate athletic activities reasonable provisions
considering the nature of particular sports.
Education Amendments of 1974 section 844; see also S. Rep. No. 93-1026
(1974) (Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 4206, 4271.
In 1975, HEW, the Department's predecessor, first promulgated
regulations under Title IX \2\ after multiple congressional hearings.
121 Cong. Rec. 20467 (1975) (statement of Sen. Birch Bayh). The
regulations were subject to a statutory ``laying before'' provision,
designed to afford Congress an opportunity to examine the proposed
regulations and disapprove them by resolution within 45 days if
Congress deemed them to be inconsistent with Title IX. N. Haven Bd. of
Educ., 456 U.S. at 531-32. The Supreme Court has stated that the fact
that no such disapproval resolution was adopted
[[Page 22863]]
``strongly implies that the [Title IX] regulations accurately reflect
congressional intent.'' Grove City Coll. v. Bell, 465 U.S. 555, 568
(1984); \3\ see also N. Haven Bd. of Educ., 456 U.S. at 533-35.
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\2\ 45 CFR part 86 (1975). In 1980, Congress created the U.S.
Department of Education. Public Law 96-88, section 201, 93 Stat.
669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 5, 1980).
By operation of law, all of HEW's determinations, rules, and
regulations continued in effect, and all functions of HEW's Office
for Civil Rights with respect to educational programs were
transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The
regulations implementing Title IX were recodified without
substantive change in 34 CFR part 106. See 45 FR 30802, 30955-65
(May 9, 1980).
\3\ The Supreme Court in NCAA v. Smith subsequently described
Grove City College as holding ``that Title IX, as originally
enacted, covered only the specific program receiving federal
funding.'' 525 U.S. 459, 466 n.4 (1999) (citing Grove City Coll.,
465 U.S. at 570-74). That part of the Court's holding was superseded
by the Civil Rights Restoration Act (CRRA), in which Congress
``correct[ed] what it considered to be an unacceptable''
interpretation by the Supreme Court of the scope of Title IX. Id.
(quoting Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 73
(1992)). The CRRA codifies Congress's interpretation of the terms
``program or activity'' and ``program'' as encompassing ``all of the
operations of * * * . . . (2)(A) a college, university, or other
postsecondary institution . . . * * * or (B) a local education
agency . . . * * * or other school system . . .* * * any part of
which is extended Federal financial assistance.'' 20 U.S.C. 1687.
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Since 1975, the Department's regulations have specified that
separate or differential treatment on the basis of sex is presumptively
a form of prohibited sex discrimination. See, e.g., 34 CFR
106.31(b)(4), (7) (``Except as provided for in this subpart, in
providing any aid, benefit, or service to a student, a recipient shall
not, on the basis of sex . . . [s]ubject any person to separate or
different rules of behavior, sanctions, or other treatment; . . . [or]
[o]therwise limit any person in the enjoyment of any right, privilege,
advantage, or opportunity.''); see also id. at 106.34(a) (``Except as
provided for in this section or otherwise in this part, a recipient
shall not provide or otherwise carry out any of its education programs
or activities separately on the basis of sex.''). These regulations
reflect the understanding that subjecting students to differential
treatment on the basis of sex in the education context is presumptively
harmful and cannot be justified by reliance on ``overbroad
generalizations about the different talents, capacities, or preferences
of males and females.'' United States v. Virginia, 518 U.S. 515, 533
(1996).
Despite the general principle reflected in the Department's
regulations that differential treatment or separation based on sex
presumptively results in prohibited sex discrimination, Congress
indicated in the Javits Amendment that a different approach to
athletics was appropriate and that the Title IX regulations should
include ``reasonable'' provisions governing intercollegiate athletic
activities in light of ``the nature of particular sports.'' Education
Amendments of 1974 section 844. HEW responded to this congressional
direction by promulgating a regulation permitting sex separation in
certain circumstances in ``any interscholastic, intercollegiate, club
or intramural athletics offered by a recipient.'' 45 CFR 86.41 (1975)
(currently codified at 34 CFR 106.41). As noted above, Congress had the
opportunity to examine and disapprove HEW's regulations, including this
athletics provision. Congress did not disapprove them, and the Title IX
regulations took effect on July 21, 1975.
The now-longstanding athletics regulation states that ``[n]o person
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, be treated differently from another person or
otherwise be discriminated against in any interscholastic,
intercollegiate, club or intramural athletics offered by a recipient,
and no recipient shall provide any such athletics separately on such
basis.'' 34 CFR 106.41(a). The regulation then provides that when
selection for an athletic team is based upon competitive skill or the
activity involved is a contact sport, a recipient may offer sex-
separate teams (though it is not required to do so). 34 CFR 106.41(b)
(``[A] recipient may operate or sponsor separate teams for members of
each sex where selection for such teams is based upon competitive skill
or the activity involved is a contact sport.''). The regulation
contemplates that in some circumstances, female students may try out
for a male team, or vice versa: ``[W]here a recipient operates or
sponsors a team in a particular sport for members of one sex but
operates or sponsors no such team for members of the other sex, and
athletic opportunities for members of that sex have previously been
limited, members of the excluded sex must be allowed to try-out for the
team offered unless the sport involved is a contact sport.'' Id. The
regulation thus recognizes that in some instances individual students
may be denied the opportunity to participate on a particular team on
the basis of sex.
Importantly, the regulation goes on to say that a recipient must
still provide equal opportunity in its athletic program as a whole. 34
CFR 106.41(c). Thus, a recipient that excludes a boy from the girls'
golf team and does not offer a boys' golf team, for example, would have
to provide equal opportunity based on sex across the totality of its
athletic program, and disparities in overall participation
opportunities in that program, including on male and female teams,
could violate Sec. 106.41(c), depending on the facts at issue. As one
court explained, ``the provisions of title IX grant flexibility to the
recipient of federal funds to organize its athletic program as it
wishes, so long as the goal of equal athletic opportunity is met.''
Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 171 (3d Cir. 1993)
(citation omitted); see also U.S. Dep't of Health, Educ., and Welfare,
Office for Civil Rights, Sex Discrimination in Athletic Programs, 40 FR
52655, 52656 (Nov. 11, 1975) (explaining that ``an institution would
not be effectively accommodating the interests and abilities of women
if it abolished all its women's teams and opened up its men's teams to
women, but only a few women were able to qualify for the men's team'').
Although the Department's Title IX regulations have never
explicitly addressed the criteria, if any, a recipient may use to
determine a student's eligibility to participate on a male or female
athletic team, OCR has previously articulated various interpretations
of current Sec. 106.41(b) as applied to transgender students (i.e.,
students whose gender identity is different from the sex they were
assigned at birth). In May 2016, OCR and the Civil Rights Division of
the U.S. Department of Justice (DOJ) issued a joint Dear Colleague
Letter stating that while a recipient may not ``adopt or adhere to
requirements that rely on overly broad generalizations or stereotypes .
. . or others' discomfort with transgender students[,] Title IX does
not prohibit age-appropriate, tailored requirements based on sound,
current, and research-based medical knowledge about the impact of the
students' participation on the competitive fairness or physical safety
of the sport.'' U.S. Dep't of Justice, Civil Rights Division, and U.S.
Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on Title
IX and Transgender Students at 3 (May 13, 2016) (rescinded in 2017)
(2016 Dear Colleague Letter on Title IX and Transgender Students)
(footnote omitted), <a href="https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf">https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf</a>. In cases alleging gender
identity discrimination in sex-separate programs and activities outside
the context of athletic teams--e.g., denying students access to sex-
separate facilities consistent with their gender identity--several
Federal courts have held that the Department's interpretation of 34 CFR
106.33 of its Title IX regulations, as reflected in the 2016 Dear
Colleague Letter on Title IX and Transgender Students, was reasonable.
See, e.g., G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d
709, 723 (4th Cir. 2016) (according controlling weight to the
``Department's interpretation of its own regulation,
[[Page 22864]]
Sec. 106.33''), vacated and remanded, 137 S. Ct. 1239, 197 L. Ed. 2d
460 (2017); Bd. of Educ. of the Highland Loc. Sch. Dist. v. U.S. Dep't
of Educ., 208 F. Supp. 3d 850, 870 (S.D. Ohio 2016) (same); Whitaker v.
Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., No. 16-CV-943-PP, 2016
WL 5239829, at *3 (E.D. Wis. Sept. 22, 2016) (same), aff'd sub nom.
Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,
858 F.3d 1034 (7th Cir. 2017), abrogated on other grounds as recognized
by Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir.
2020).
In August 2016, however, a Federal district court issued an opinion
finding that the interpretation set out in the 2016 Dear Colleague
Letter on Title IX and Transgender Students did not undergo the notice-
and-comment process required by the Administrative Procedure Act and
was contrary to law. The district court granted a preliminary
injunction barring the Departments of Education and Justice from
relying on the 2016 Dear Colleague Letter on Title IX and Transgender
Students in their enforcement of Title IX with respect to access to
certain sex-separate facilities. Texas v. United States, 201 F. Supp.
3d 810, 836 (N.D. Tex. 2016); see also Texas v. United States, No.
7:16-CV-00054-O, 2016 WL 7852331, at *4 (N.D. Tex. Oct. 18, 2016)
(clarifying that the preliminary injunction is ``limited to the issue
of access to intimate facilities''). In February 2017, DOJ's Civil
Rights Division and OCR issued a letter withdrawing the statements of
policy and guidance reflected in the 2016 Dear Colleague Letter on
Title IX and Transgender Students, stating that they made this change
``in order to further and more completely consider the legal issues
involved.'' U.S. Dep't of Justice, Civil Rights Division, and U.S.
Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on
Transgender Students at 1 (Feb. 22, 2017) (under review in light of
Exec. Order No. 13988), <a href="https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf">https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf</a>. On March 3, 2017, the Federal
district court dissolved the preliminary injunction when the plaintiffs
voluntarily dismissed the lawsuit. Plaintiff's Notice of Voluntary
Dismissal, Texas v. United States, No. 7:16-cv-00054 (N.D. Tex. Mar. 3,
2017), ECF No. 128.
In the months immediately following the Supreme Court's June 2020
decision in Bostock, 140 S. Ct. 1731, OCR made several statements on
Bostock's application to Title IX. For instance, on August 31, 2020,
OCR issued a revised Letter of Impending Enforcement Action in its
investigation of the Connecticut Interscholastic Athletic Conference
(CIAC) and six school districts. OCR Case No. 01-19-4025, Conn.
Interscholastic Athletic Conf. et al. (Aug. 31, 2020) (revised letter
of impending enforcement action) (archived and marked not for reliance
in February 2021) (Revised CIAC Letter), <a href="https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a2.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a2.pdf</a>. The letter
stated that OCR was providing an update in light of Bostock and took
the position that when a recipient provides ``separate teams for
members of each sex'' under 34 C.F.R. Sec. 106.41(b), ``the recipient
must separate those teams on the basis of biological sex'' and not on
the basis of gender identity. Revised CIAC Letter at 36. The letter
departed from OCR's typical practice concerning enforcement letters by
stating that it ``constitutes a formal statement of OCR's
interpretation of Title IX and its implementing regulations and should
be relied upon, cited, and construed as such.'' Id. at 49.
In January 2021, the Department posted a memorandum from its
General Counsel's office commenting on Bostock's application to Title
IX. U.S. Dep't of Educ., Memorandum from Principal Deputy General
Counsel delegated the authority and duties of the General Counsel Reed
D. Rubinstein to Kimberly M. Richey, Acting Assistant Secretary of the
Office for Civil Rights re Bostock v. Clayton Cnty. (Jan. 8, 2021)
(archived and marked not for reliance in March 2021) (Rubinstein
Memorandum), <a href="https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf">https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf</a>. The Rubinstein Memorandum stated
that ``if a recipient chooses to provide `separate teams for members of
each sex' under 34 C.F.R Sec. 106.41(b), 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.''
In February 2021, OCR withdrew the Revised CIAC Letter, citing its
inconsistency with Executive Order 13988 (describing Bostock) and the
fact that it was issued without following the appropriate procedures
required for issuing guidance.\4\ Similarly, in March 2021, the
Department archived the Rubinstein Memorandum and marked it ``not for
reliance,'' citing its inconsistency with Executive Order 13988 and the
fact that it was issued without the review required under the then-
applicable Department's Rulemaking and Guidance Procedures, 85 FR 62597
(Oct. 5, 2020) (rescinded effective September 29, 2021).
---------------------------------------------------------------------------
\4\ OCR Case No. 01-19-4025, Conn. Interscholastic Athletic
Conf. et al. (Feb. 23, 2021) (letter withdrawing Revised CIAC
Letter), <a href="https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a5.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a5.pdf</a>. In December 2022, in related
Federal court litigation over CIAC's athletic eligibility policy, a
panel of the U.S. Court of Appeals for the Second Circuit noted that
the policy--which permits high school students to participate on
male and female athletic teams consistent with their gender
identity--could not be said to fall ``within the scope of Title IX's
proscriptions.'' Soule by Stanescu v. Conn. Ass'n of Schs., 57 F.4th
43, 55 (2d Cir. 2022). Subsequently, the Second Circuit vacated the
panel's opinion pending rehearing en banc. See Soule by Stanescu v.
Conn. Ass'n of Schs., No. 21-1365 (2d Cir. Feb. 13, 2023).
---------------------------------------------------------------------------
In June 2021, the Departments of Justice and Education filed a
Statement of Interest in a Title IX and equal protection challenge to a
State law limiting students' eligibility to participate on female
athletic teams consistent with their gender identity, emphasizing that
``[a]t its core, Title IX is about ensuring equal educational
opportunities to all students regardless of their sex.'' Statement of
Interest of the United States at 12, B.P.J. v. W. Va. State Bd. of
Educ., 550 F. Supp. 3d 347 (S.D. W. Va. 2021) (No. 2:21-cv-00316),
<a href="https://www.justice.gov/crt/case-document/file/1405541/download">https://www.justice.gov/crt/case-document/file/1405541/download</a>
(supporting the Title IX and equal protection claims raised by a
transgender girl in middle school challenging the application of a
State law prohibiting her from participating on her school's girls'
athletic teams).\5\ In April 2023, the Department of Justice filed a
brief as amicus curiae in support of plaintiff-appellant B.P.J.'s
appeal to the Fourth Circuit. See Brief for the United States as Amicus
Curiae in Support of Plaintiff-Appellant and Urging Reversal, B.P.J. v.
W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Apr.
[[Page 22865]]
3, 2023), <a href="https://www.justice.gov/crt/case-document/file/1577891/download">https://www.justice.gov/crt/case-document/file/1577891/download</a>.
---------------------------------------------------------------------------
\5\ The Federal district court initially granted a preliminary
injunction barring implementation of the West Virginia law to
exclude a transgender girl in middle school from participating on
her school's girls' track and cross-country teams, B.P.J., 550 F.
Supp. 3d at 357. On January 5, 2023, the court granted a motion for
summary judgment upholding West Virginia's law, concluding that the
law does not violate the Equal Protection Clause or Title IX, and
dissolving the preliminary injunction. B.P.J. v. W. Va. State Bd. of
Educ., No. 2:21-cv-00316, 2023 WL 111875, at *8-10 (S.D. W. Va. Jan.
5, 2023), appeal docketed, No. 23-1078 (4th Cir. Jan. 24, 2023). On
February 22, 2023, a panel of the Fourth Circuit granted B.P.J.'s
Motion for Stay of the District Court's January 5, 2023, Order
dissolving the preliminary injunction pending appeal. See B.P.J. v.
W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Feb. 22, 2023). On
March 9, 2023, the Defendants-Appellees submitted an application to
the U.S. Supreme Court seeking to vacate the Fourth Circuit's
injunction pending appeal. See Application to Vacate the Injunction
Entered by the United States Court of Appeals for the Fourth
Circuit, W. Va. State Bd. of Educ. v. B.P.J., No. 22A800 (U.S. Mar.
9, 2023). The discussion below further addresses the district
court's now-dissolved January 5, 2023, Order.
---------------------------------------------------------------------------
Separately, also in June 2021, in light of the Supreme Court's
decision in Bostock, the Department issued a Notice of Interpretation
to explain the Department's enforcement authority over discrimination
based on sexual orientation and gender identity under Title IX. U.S.
Dep't of Educ., Office for Civil Rights, Notice of Interpretation:
Enforcement of Title IX with Respect to Discrimination Based on Sexual
Orientation and Gender Identity in Light of Bostock v. Clayton County,
86 FR 32637 (June 22, 2021) (2021 Bostock Notice of Interpretation),
<a href="https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf">https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf</a>.\6\ Against this backdrop and for reasons described in this
preamble, the Secretary proposes to amend the Department's Title IX
regulation in 34 CFR 106.41.
---------------------------------------------------------------------------
\6\ A Federal district court preliminarily enjoined and
restrained the Department from implementing the 2021 Bostock Notice
of Interpretation against 20 States. See Tennessee v. U.S. Dep't of
Educ., No. 3:21-cv-308, 2022 WL 2791450, at *24 (E.D. Tenn. July 15,
2022), appeal docketed, No. 22-5807 (6th Cir. Sept. 13, 2022). This
Athletics NPRM is not based on the 2021 Bostock Notice of
Interpretation.
---------------------------------------------------------------------------
The Department's Review of Its Title IX Regulations
On April 6, 2021, OCR issued a letter to students, educators, and
other stakeholders that informed them about the steps the Department
was taking to review its regulations, orders, guidance, policies, and
other similar agency actions under Title IX. U.S. Dep't of Educ.,
Office for Civil Rights, Letter from Acting Assistant Secretary Suzanne
B. Goldberg to Students, Educators, and other Stakeholders re Executive
Order 14021 (Apr. 6, 2021), <a href="https://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf">https://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf</a>. As directed by Executive
Order 14021, this comprehensive review included OCR's review of all
agency actions to determine whether changes to the Department's Title
IX regulations are necessary to fulfill Title IX's mandate and OCR's
commitment to ensuring equal and nondiscriminatory access to education
for students at all education levels, regardless of sex. See id. at 2.
On May 20, 2021, OCR published a notice in the Federal Register
announcing a nationwide virtual public hearing (referred to below as
the ``June 2021 Title IX Public Hearing'') to gather information for
the purpose of improving enforcement of Title IX. U.S. Dep't of Educ.,
Office for Civil Rights, Announcement of Public Hearing; Title IX of
the Education Amendments of 1972, 86 FR 27429 (May 20, 2021), <a href="https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf">https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf</a>. OCR
expressed particular interest in comments about discrimination based on
gender identity in educational environments, as well as other topics.
Id. The virtual hearing was held from June 7, 2021, to June 11, 2021,
during which time OCR received live comments through the virtual
hearing platform and written comments via email. Over 280 students,
parents, teachers, faculty members, school staff, administrators, and
other members of the public provided live comments, and OCR received
over 30,000 written comments by email. The transcript of live comments
is available at <a href="https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf</a>, and the written comments may be
viewed at <a href="https://www2.ed.gov/about/offices/list/ocr/public-hearing.html">https://www2.ed.gov/about/offices/list/ocr/public-hearing.html</a>.
In addition to soliciting live and written comments as part of the
June 2021 Title IX Public Hearing, OCR also conducted listening
sessions with stakeholders expressing a variety of views, including
individuals and organizations focused on Title IX and athletics. Among
these stakeholders were students, including current and former student-
athletes; parents; athletic associations; organizations representing
elementary schools, secondary schools, and postsecondary institutions;
organizations representing teachers, administrators, parents, and
current and former student-athletes; attorneys representing students
and schools; State officials; Title IX Coordinators and other school
administrators; and individuals who provide Title IX training to
schools.
In the June 2021 Title IX Public Hearing, in listening sessions,
and in correspondence, stakeholders posed questions and presented
concerns regarding Title IX's application to determinations of whether
a student is eligible to participate on a recipient's male or female
athletic team, particularly in light of the shifting OCR guidance on
this issue and the divergent approaches to such eligibility criteria
taken by State laws and organizations that set eligibility rules for
specific sports. Stakeholders highlighted the many benefits that
students gain from participating on athletic teams, including learning
skills that promote personal health, wellness, and leadership; being
part of a team; and fostering social relationships.
Some stakeholders asserted that allowing students to participate on
male or female athletic teams that align with their gender identity is
consistent with Title IX's guarantee of nondiscrimination on the basis
of sex. In the same vein, some stakeholders stressed that preventing
transgender students from participating on their schools' male or
female athletic teams consistent with their gender identity deprives
those students of the benefits of athletic team participation because
it is not tenable to require a transgender girl or woman to participate
on a male athletic team or a transgender boy or man to participate on a
female athletic team. Some stakeholders expressed concern that some
policies and State laws restricting athletic eligibility to a student's
sex assigned at birth may also disqualify intersex students (generally,
persons with variations in physical sex characteristics, including
variations in anatomy, hormones, chromosomes or other traits that
differ from expectations generally associated with male and female
bodies) from participating on male or female teams consistent with
their gender identity if the sex assigned to those students at birth
does not accurately reflect their gender identity. Stakeholders also
expressed concern that certain policies and State laws might preclude
nonbinary students (generally, persons who do not identify as
exclusively male or female) from participating on either male or female
teams, including in contexts in which those students' school records or
other official documents indicate a nonbinary gender marker and the
school's eligibility criteria limit participation to students with a
male or female gender marker. By contrast, other stakeholders expressed
concerns that participation of some transgender girls and women on
female athletic teams could deprive other girls and women of access to
the benefits associated with participation on athletic teams. Many
stakeholders representing a range of views urged the Department to
clarify whether and, if so, how students can participate on male or
female athletic teams that align with their gender identity while
ensuring fair and safe sports participation for all.
The Department's July 2022 NPRM proposed amendments to the
Department's Title IX regulations would clarify, among other things,
that Title IX prohibits discrimination based on gender identity and sex
characteristics in federally funded education programs and activities.
See 87 FR 41571. In addition, the proposed amendments would clarify
that (a) in the limited circumstances in which Title IX or the
Department's Title IX regulations permit different treatment or
separation on the basis of sex, a recipient must not carry out such
different treatment or
[[Page 22866]]
separation in a manner that discriminates on the basis of sex by
subjecting a person to more than de minimis harm, unless otherwise
permitted by Title IX or the Department's Title IX regulations; and (b)
a policy or practice that prevents a person from participating in an
education program or activity consistent with their gender identity
subjects a person to more than de minimis harm on the basis of sex. Id.
at 41534-37. The July 2022 NPRM also recognized that despite Title IX's
general prohibition on sex discrimination against an individual, there
are circumscribed situations, including with respect to sex-related
eligibility criteria for male or female teams, in which Title IX or its
regulations may permit a recipient to separate students on the basis of
sex, even when doing so may cause some students more than de minimis
harm. Id. at 41537. The July 2022 NPRM did not propose any changes to
the Department's Title IX regulation governing athletics, however,
instead reserving that issue for this Athletics NPRM. Id.
The Department now proposes amending its Title IX regulations to
help ensure implementation of Title IX in what Congress has recognized
as the unique context of athletics. Cf. Education Amendments of 1974
section 844 (specifying a requirement for ``reasonable provisions
considering the nature of particular sports'' in the Department's Title
IX regulations regarding intercollegiate athletics). The Department
acknowledges the interest of some stakeholders in preserving current
athletic-team policies and procedures regarding sex-related eligibility
criteria and in avoiding potential additional costs to comply with the
proposed regulation. However, the Department believes that the current
regulations are not sufficiently clear to ensure Title IX's
nondiscrimination requirement is fulfilled if a recipient adopts or
applies sex-related criteria that would limit or deny students'
eligibility to participate on male or female athletic teams consistent
with their gender identity. This clarification regarding Title IX's
application to sex-related eligibility criteria is particularly
important as some States have adopted criteria that categorically limit
transgender students' eligibility to participate on male or female
athletic teams consistent with their gender identity. See, e.g., Ind.
Code section 20-33-13-4 (2022) (``A male, based on a student's
biological sex at birth in accordance with the student's genetics and
reproductive biology, may not participate on an athletic team or sport
designated under this section as being a female, women's, or girls'
athletic team or sport.''); W. Va. Code section 18-2-25d(c)(1) (2021)
(designating participation on interscholastic, intercollegiate,
intramural, or club athletic teams sponsored by any public secondary
school or state institution of higher education as based on
``biological sex''); Idaho Code section 33-6203 (2020) (same). In so
doing, these State laws have created additional uncertainty for
stakeholders regarding what Title IX permits and requires with respect
to male and female teams.
The standard proposed in this Athletics NPRM is consistent with the
framework in the current Sec. 106.41 for providing overall equal
athletic opportunity regardless of sex for students who seek to
participate in a recipient's athletic program. Taking into account
extensive stakeholder questions about Title IX's application to sex-
related eligibility criteria for male and female athletic teams, the
Department's proposed regulation would provide that if a recipient
adopts or applies sex-related criteria that would limit or deny a
student's eligibility to participate on a male or female team
consistent with their gender identity, such criteria must, for each
sport, level of competition, and grade or education level, be
substantially related to the achievement of an important educational
objective and minimize harms to students whose opportunity to
participate on a male or female team consistent with their gender
identity would be limited or denied. The proposed regulation would
continue to recognize, as has current Sec. 106.41(b) since its
promulgation in 1975, that some sex-related distinctions in sports are
permissible as long as a recipient ensures overall equal athletic
participation opportunity regardless of sex.
Further, it is the Department's intent that the severability
clauses set out in the relevant subparts of 34 CFR part 106 would
remain applicable to the proposed changes in this Athletics NPRM. It is
also the Department's position that the proposed regulation, if adopted
as a final rule, would serve an important purpose that is distinct from
other provisions in part 106 and would operate independently of other
regulatory provisions, such that any potential invalidity of the
proposed regulation should not affect any other provisions in part 106.
Significant Proposed Regulation:
Section 106.41 Athletics
Statute: Title IX prohibits discrimination on the basis of sex
under any education program or activity receiving Federal financial
assistance. 20 U.S.C. 1681(a). The Department has the authority to
regulate with regard to discrimination on the basis of sex in education
programs or activities receiving Federal financial assistance,
specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3
and 3474. And the Javits Amendment reflects that the Department has
discretion to tailor its regulations in the athletics context that it
might not have in other contexts and to adopt ``reasonable provisions
considering the nature of particular sports.'' Education Amendments of
1974 section 844.
Current regulations: Paragraph (a) of current Sec. 106.41
establishes a baseline rule that no person shall, on the basis of sex,
be excluded from participation in, be denied the benefits of, be
treated differently from another person, or otherwise be discriminated
against in any interscholastic, intercollegiate, club or intramural
athletics offered by a recipient, and that no recipient may provide any
such athletics separately on the basis of sex. Section 106.41(b) sets
forth an exception that permits a recipient to offer separate male and
female athletic teams when selection for such teams is based upon
competitive skill or the activity involved is a contact sport.
Paragraph (b) also states that when a recipient operates or sponsors a
team in a particular sport for members of one sex but operates or
sponsors no such team for members of the excluded sex, and athletic
opportunities for members of the excluded sex have previously been
limited, members of the excluded sex must be allowed to try out for the
team offered unless the sport involved is a contact sport. The same
paragraph lists examples of contact sports. Paragraph (c) states that
even when a recipient offers separate male and female athletic teams, a
recipient must provide overall equal athletic opportunity for the
sexes.
Proposed regulation: The Department proposes adding to Sec.
106.41(b) a standard that would govern a recipient's adoption or
application of sex-related criteria that would limit or deny a
student's eligibility to participate on a male or female team
consistent with their gender identity. Specifically, the Department
proposes renumbering current Sec. 106.41(b) as proposed Sec.
106.41(b)(1) and adding a new paragraph as proposed Sec. 106.41(b)(2)
to state that any such criteria a recipient adopts or applies 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)
[[Page 22867]]
minimize harms to students whose opportunity to participate on a male
or female team consistent with their gender identity would be limited
or denied.
Reasons: In light of its review of Title IX and its regulations,
stakeholder feedback, and developments in case law and in the sex-
related eligibility criteria set by some school districts, States, and
other organizations (including athletic associations and sport
governing bodies), the Department proposes amending its regulations to
provide greater clarity as to the standard that applies if a recipient
adopts or applies sex-related criteria that would limit or deny a
student's eligibility to participate on a male or female athletic team
consistent with their gender identity. The proposed regulation is
consistent with Sec. 106.41's framework for providing equal
opportunity regardless of sex in a recipient's athletic program as a
whole and with Congress's direction that the Title IX regulations
include ``reasonable provisions'' regarding athletics that ``consider[
] the nature of particular sports.'' Education Amendments of 1974
section 844.
Development of the Proposed Regulation
In listening sessions, correspondence, and through the June 2021
Title IX Public Hearing, OCR received feedback from stakeholders on the
educational and other benefits of student participation on athletic
teams and the application of Title IX's nondiscrimination mandate to
all student-athletes. The feedback also focused on how schools can
provide nondiscriminatory athletic opportunities for all students and
on factors that influence fairness in competition and prevention of
sports-related injury. Amidst this variety of views, OCR heard that
students, recipients, athletic associations, and others need clarity
from the Department about the legal standards that would apply to
ensure Title IX's nondiscrimination requirement is fulfilled if a
recipient adopts or applies sex-related criteria that would limit or
deny students' eligibility to participate on male or female athletic
teams consistent with their gender identity. In developing the proposed
regulation, the Department reviewed this stakeholder input as well as
Title IX's statutory text and purpose, Title IX's regulatory framework,
courts' interpretations of Title IX and the U.S. Constitution, and the
existing approaches to sex-related eligibility criteria taken by a wide
range of States, school districts and other organizations, including
athletic associations and sport governing bodies.\7\
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\7\ The policies of athletic associations, sport governing
bodies, State agencies, and other entities, or excerpts thereof
referenced throughout this document are examples of various
approaches that these entities have taken regarding sex-related
eligibility criteria for male and female athletic teams. The
Department includes them here to illustrate various points in this
preamble; it does not require a recipient to adopt or apply the
examples mentioned here, and their inclusion in this preamble is not
an endorsement by the Department of any policy or practice, nor does
it indicate whether the policy or practice would comply with the
standard proposed in this Athletics NPRM. Any links to websites from
outside of the Department are provided for the reader's convenience
only. The Department does not control or guarantee the accuracy,
relevance, timeliness, or completeness of this outside information.
Examples and links included in this preamble do not constitute legal
advice, create legal obligations, or impose new requirements.
---------------------------------------------------------------------------
The Text and Purpose of Title IX
In developing the proposed regulation, the Department considered
Title IX's statutory text, purpose, and legislative history, as well as
the current regulatory framework and constitutional principles.
As noted above, Congress has been clear that Title IX prohibits sex
discrimination in a recipient's athletic program and, recognizing the
unique circumstances of athletics, that the Title IX regulations should
include ``reasonable provisions'' governing athletic activities that
``consider[ ] the nature of particular sports.'' Education Amendments
of 1974 section 844. The Department's now-longstanding Title IX
regulation on athletics therefore reflects the unique circumstances of
athletics, including intercollegiate athletics. The Department's
proposed regulation would similarly reflect the unique circumstances of
athletics by considering whether sex-related criteria adopted or
applied by a recipient to determine eligibility for male and female
athletic teams, for each sport, level of competition, and grade or
education level, are substantially related to the achievement of an
important educational objective and minimize harms to students whose
opportunity to participate on a male or female team consistent with
their gender identity would be limited or denied.
The proposed regulation would thus preserve and build on the
current regulatory framework the Department has long used to evaluate
whether a recipient offers its students an equal opportunity to
participate in athletics consistent with Title IX. It is also
consistent with current Sec. 106.41, which prohibits sex
discrimination in a recipient's athletic program in paragraph (a) and
recognizes in paragraph (c) that while a recipient must provide equal
opportunity regardless of sex in its athletic program as a whole, it
may, in limited and defined circumstances set out in paragraph (b),
deny individual students the opportunity to participate on a particular
male or female team on the basis of their sex. In addition, the
proposed regulation is consistent with OCR's longstanding policy of
encouraging compliance with the Department's Title IX athletics
regulation ``in a flexible manner that expands, rather than limits,
student athletic opportunities.'' See Dear Colleague Letter: Athletic
Activities Counted for Title IX Compliance (Sept. 17, 2008) (2008 Dear
Colleague Letter on Title IX and Athletic Activities), <a href="https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20080917.pdf">https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20080917.pdf</a>; see
also 1979 Policy Interpretation, 44 FR 71414 (noting that effectively
accommodating the interests and abilities of male and female students
in the selection of sports and levels of competition will, in most
cases, ``entail development of athletic programs that substantially
expand opportunities for women to participate and compete at all
levels'').
The proposed regulation is also informed by constitutional
principles. In particular, Federal courts' equal protection analysis
provides a helpful framework for evaluating when certain sex-based
classifications may be justified. See, e.g., 34 CFR 106.34(b) (setting
out Title IX regulatory standard for single-sex classes that reflects
certain aspects of Federal courts' equal protection framework); U.S.
Dep't of Educ., Office for Civil Rights, Final Rule: Nondiscrimination
on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 71 FR 62530, 62533 (Oct. 25, 2006)
<a href="https://www.govinfo.gov/content/pkg/FR-2006-10-25/pdf/E6-17858.pdf">https://www.govinfo.gov/content/pkg/FR-2006-10-25/pdf/E6-17858.pdf</a>.
Notably, however, because the scope of Title IX differs from the scope
of the Equal Protection Clause, the Department's current and proposed
Title IX regulations, while informed by constitutional principles,
exclusively implement Title IX. See 71 FR 62533.
Court Decisions Regarding Sex-Related Eligibility Criteria
In developing the proposed regulation, the Department also reviewed
court decisions analyzing allegations that various policies governing
transgender students' eligibility to participate on male or female
athletic teams discriminate impermissibly based on sex. Several courts
have found that excluding transgender students from participating
[[Page 22868]]
on athletic teams consistent with their gender identity impermissibly
discriminates against these students based on sex. In one case, for
example, a Federal district court preliminarily enjoined a school
district from excluding a fifth-grade transgender girl from the girls'
softball team under an Indiana law that categorically precluded
transgender girls and women from being treated consistent with their
gender identity for purposes of female athletic teams. A.M. v.
Indianapolis Pub. Schs., No. 1:22-cv-01075-JMS-DLP, 2022 WL 2951430, at
*14 (S.D. Ind. July 26, 2022), vacated as moot, (S.D. Ind. Jan. 19,
2023).\8\ Adopting the Supreme Court's reasoning in Bostock and
following controlling Seventh Circuit authority, the court held that
the plaintiff had ``established a strong likelihood that she will
succeed on the merits of her Title IX claim'' that the Indiana law
discriminated against her on the basis of sex. Id. at * 11. As the
court explained, prohibiting an individual from playing on a team
consistent with their gender identity ```punishes that individual for
his or her gender non-conformance,' which violates the clear language
of Title IX.'' Id. (citations omitted). The court also stated that
under current case law, this conclusion was ``not even a close call.''
Id.
---------------------------------------------------------------------------
\8\ On January 19, 2023, after the parties filed a Joint
Stipulation to Dismiss Case Because of Mootness indicating that the
plaintiff had enrolled in a charter school not operated by defendant
Indianapolis Public Schools, the Federal district court issued an
Acknowledgement of Dismissal and vacated the preliminary injunction
because of mootness. A.M., No. 1:22-cv-01075-JMS-DLP (S.D. Ind. Jan.
19, 2023). In its Acknowledgement of Dismissal, the court did not
repudiate its prior determination that the plaintiff had a strong
likelihood of success on the merits of her Title IX claim, as
discussed in this preamble.
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In another case, a Federal district court preliminarily enjoined
the State of Idaho from enforcing a state law that ``excludes
transgender women from participating on women's sports teams.'' Hecox
v. Little, 479 F. Supp. 3d 930, 943, 988 (D. Idaho 2020), appeal
argued, No. 20-35815 (9th Cir. Nov. 22, 2022). In Hecox, the court
found that, in light of ``the dearth of evidence in the record to show
excluding transgender women from women's sports supports sex equality,
provides opportunities for women, or increases access to college
scholarships,'' the transgender student plaintiff was likely to succeed
in establishing that the Idaho statute violates her right to equal
protection. Id. at 978-85. The court explained that the Idaho law,
which draws a distinction based on the quasi-suspect classifications of
sex and transgender status, must, under the Supreme Court's established
equal protection doctrine, ``serve important governmental objectives
and must be substantially related to achievement of those objectives.''
Id. at 973 (quoting Craig v. Boren, 429 U.S. 190, 197 (1976)). Although
the court recognized that ```redressing past discrimination against
women in athletics and promoting equality of athletic opportunity
between the sexes' is `a legitimate and important governmental
interest' justifying rules excluding males from participating on female
teams,'' it concluded that that interest does ``not appear to be
implicated by allowing transgender women to participate on women's
teams.'' Id. at 976 (quoting Clark ex rel. Clark v. Ariz.
Interscholastic Ass'n, 695 F.2d 1126, 1131 (9th Cir. 1982)). On this
point, the court noted both that the small population of transgender
athletes would not ``substantially displace'' cisgender female athletes
and that ``it is not clear that transgender women who suppress their
testosterone have significant physiological advantages over cisgender
women.'' Id. at 978. As the court explained, ``[t]hat the Act
essentially bars consideration of circulating testosterone illustrates
the Legislature appeared less concerned with ensuring equality in
athletics than it was with ensuring exclusion of transgender women
athletes.'' Id. at 984.
The court's equal protection analysis in Hecox is instructive and
relevant to the Department's proposed Title IX regulation in several
respects: the court examined interests commonly proffered to defend
policies denying transgender students the opportunity to participate on
male or female athletic teams consistent with their gender identity,
considered whether such policies actually advance any important
objectives, and further considered the effects of those policies on
students' equal opportunity to participate in and benefit from their
schools' education programs and activities. See, e.g., Hecox, 479 F.
Supp. 3d at 977 (``[T]he Act's categorical exclusion of transgender
women and girls entirely eliminates their opportunity to participate in
school sports. . . .'').
Conversely, another Federal district court upheld a West Virginia
law against a challenge brought by a transgender girl who, because of
the law, was excluded from participating on her middle school's girls
athletic teams, concluding that the law satisfied both equal protection
and Title IX. B.P.J., 2023 WL 111875, at * 8, * 10.\9\ The court agreed
with the plaintiff that the law classified students based on sex. It
then observed, in its equal protection analysis, that the State could
``allow transgender individuals to play on the team with which they, as
an individual, are most similarly situated at a given time,'' but
concluded that the categorical ban on participation by transgender
students consistent with their gender identity was substantially
related to the State's asserted interest in providing equal athletic
opportunity for girls and women. Id. at *8. With respect to Title IX,
the court observed that: (1) current Sec. 106.41(b) permits sex-
separate athletic teams; (2) `` `the motivation for the promulgation of
the regulation' was to increase opportunities for women and girls in
athletics''; and (3) Sec. 106.41(b)'s ``endorsement of sex separation
in sports refers to biological sex.'' Id. at *9 (citation omitted).
---------------------------------------------------------------------------
\9\ As explained in Note 5 above, the district court initially
issued a preliminary injunction barring enforcement of a State law
that would ban the plaintiff from participating on girls' sports
teams at school based on the strong likelihood that the West
Virginia law violated the Equal Protection Clause and Title IX.
B.P.J., 550 F. Supp. 3d 347, 357. On January 5, 2023, the District
Court issued an order dissolving the preliminary injunction and
finding the West Virginia law did not violate the Equal Protection
Clause or Title IX. 2023 WL 111875, at *8, *10. The plaintiff
appealed and a panel of the Fourth Circuit enjoined the District
Court's January 5, 2023, Order pending the outcome of the appeal,
see B.P.J. v. W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Feb.
22, 2023), which the Defendants-Appellees have petitioned the U.S.
Supreme Court to vacate. See Application to Vacate the Injunction
Entered by the United States Court of Appeals for the Fourth
Circuit, W. Va. State Bd. of Educ. v. B.P.J., No. 22A800 (U.S. Mar.
9, 2023).
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With regard to the court's third observation, the Department notes
that current Sec. 106.41(b) permits a recipient to offer ``teams for
members of each sex,'' without defining that term, and also notes the
longstanding application of this provision to permit a recipient to
offer teams for women and men, and for girls and boys. The Department
recognizes that although the court in B.P.J. interpreted the Title IX
statute and Sec. 106.41(b) in a way that permits categorical exclusion
of transgender students from participating consistent with their gender
identity, other courts have set out a different interpretation of Title
IX and its implementing regulations governing sex-separation in
education programs and activities, see, e.g., Grimm v. Gloucester Cnty.
Sch. Bd., 972 F.3d 586, 618-19 (4th Cir.), as amended (Aug. 28, 2020),
cert. denied, 141 S. Ct. 2878 (2021); A.M., 2022 WL 2951430, at *7-11,
underscoring the value of this proposed rulemaking in clarifying the
Department's interpretation of its Title IX regulations.\10\
---------------------------------------------------------------------------
\10\ A decision of the United States Court of Appeals for the
Eleventh Circuit likewise highlights the need for the Department to
clarify Title IX's application to transgender students in those
limited and discrete contexts in which Title IX or its implementing
regulations otherwise allow a recipient to separate students on the
basis of sex. See Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791
(11th Cir. 2022) (en banc). In Adams, the court determined a school
policy that excluded a transgender boy from using the male restroom
at his school did not violate the Equal Protection Clause, id. at
810-11, or Title IX, id. at 811-17. The Adams court recognized that
the school's restroom policy classified students based on sex. Id.
at 801. The court held, however, that the term ``sex'' in 34 CFR
106.33, which allows a recipient to ``provide separate toilet . . .
facilities on the basis of sex,'' should be understood to mean
``biological sex,'' see Adams, 57 F.4th at 814-15. It further
concluded that the regulation therefore permitted a recipient to
deny transgender students access to restrooms consistent with their
gender identity, without considering the distinct sex-based harms
that such students suffer from such exclusion. For the Department's
views on some of the issues raised in Adams, see En Banc Brief for
the United States as Amicus Curiae in Support of Plaintiff-Appellee
and Urging Affirmance at 22-28, Adams, 57 F.4th 791 (No. 18-13592),
<a href="https://www.justice.gov/crt/case-document/file/1458461/download">https://www.justice.gov/crt/case-document/file/1458461/download</a>.
See, e.g., id. at 22 (recognizing that the Department's Title IX
regulation allows for sex-separate restrooms, but noting that the
regulation does not speak to how it applies to transgender
students).
The claims in Adams did not involve athletics or the athletics
regulation that is the subject of this Athletics NPRM (34 CFR
106.41). The Department notes the court's statement in dicta, in
reference to the Department's current athletics regulation, that
``equating `sex' to `gender identity' or `transgender status' would
also call into question the validity of sex-separated sports
teams,'' Adams, 57 F.4th at 816-17, differs from the approach
proposed in this Athletics NPRM. As discussed above, the
Department's longstanding view is that sex-separate teams can in
some instances advance Title IX's goals, and that as a general
matter, a recipient may offer male and female athletic teams as long
as they provide overall equal athletic opportunity consistent with
Title IX's nondiscrimination guarantee. The proposed regulation
would not alter this position and instead, for reasons discussed
throughout this preamble, would provide the necessary clarity to
help ensure that recipients continue to provide equal opportunity
for students, consistent with Title IX, on their male and female
athletic teams.
---------------------------------------------------------------------------
[[Page 22869]]
Courts have not addressed Title IX's application to intersex or
nonbinary student-athletes. The Department believes the proposed
regulation would provide an appropriate Title IX framework for
analyzing a recipient's adoption or application of sex-related criteria
that limit or deny an intersex student's eligibility to participate on
a male or female team consistent with their gender identity. When
applying sex-related criteria to nonbinary students, a recipient may
need to determine whether the criteria do, in fact, limit or deny a
nonbinary student's eligibility to participate on a male or female team
consistent with their gender identity to determine whether the proposed
regulation would apply.
Existing Approaches to Eligibility Criteria for Male and Female Teams
In addition to the considerations just discussed in developing this
proposed regulation, the Department considered a variety of existing
approaches to eligibility criteria for male and female teams that
affect students' opportunity to participate on such teams consistent
with their gender identity. Some States, as well as many school
districts and athletic associations, have for many years adopted or
applied eligibility criteria that do not restrict students from
participating on male or female athletic teams consistent with their
gender identity. Other States and organizations have, particularly in
recent years, adopted policies that exclude some or all transgender
students from participating on male or female athletic teams consistent
with their gender identity or have adopted eligibility criteria that
relate to birth certificates, physical examinations, or medical
treatment.
At the postsecondary level, for example, the National Collegiate
Athletic Association (NCAA) in 2022 replaced its longstanding policy
describing transgender students' eligibility to participate on a male
or female college athletic team in the NCAA with a sport-by-sport
approach. See NCAA, Transgender Student-Athlete Participation Policy
(Jan. 2022) (NCAA 2022 Policy); <a href="https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx">https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx</a>; NCAA, 2010 NCAA Policy on
Transgender Student-Athlete Participation (2010), <a href="https://ncaaorg.s3.amazonaws.com/inclusion/lgbtq/INC_TransgenderStudentAthleteParticipationPolicy.pdf">https://ncaaorg.s3.amazonaws.com/inclusion/lgbtq/INC_TransgenderStudentAthleteParticipationPolicy.pdf</a>. The NCAA 2022
Policy calls for its member colleges and universities to follow the
criteria for transgender students' participation in college sports set
by national bodies governing individual sports, which are subject to
review by the NCAA's Committee on Competitive Safeguards and Medical
Aspects of Sports. In announcing these changes, the NCAA emphasized its
support for preserving transgender students' opportunity to participate
in team sports and the importance of inclusive, fair, safe, and
respectful environments for competition across college sports. See
NCAA, Board of Governors Updates Transgender Participation Policy (Jan.
19, 2022), <a href="https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy.aspx">https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy.aspx</a>.
This change in the NCAA's policy follows a similar change by the
International Olympic Committee (IOC) regarding athletes' participation
in high-level international competition. IOC, IOC Framework on
Fairness, Inclusion, and Non-Discrimination on the Basis of Gender
Identity and Sex Variations (Nov. 2021) (IOC Framework), <a href="https://stillmed.olympics.com/media/Documents/News/2021/11/IOC-Framework-Fairness-Inclusion-Non-discrimination-2021.pdf">https://stillmed.olympics.com/media/Documents/News/2021/11/IOC-Framework-Fairness-Inclusion-Non-discrimination-2021.pdf</a>; IOC, IOC Consensus
Meeting on Sex Reassignment and Hyperandrogenism (Nov. 2015), <a href="https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf">https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf</a>. The IOC Framework recognizes ``the need to ensure that
everyone, irrespective of their gender identity or sex variations, can
practise sport in a safe, harassment-free environment that recognises
and respects their needs and identities'' and that its new ``principles
. . . aim to ensure that competition [in male and female] categories is
fair and safe and that athletes are not excluded solely on the basis of
their transgender identity or sex variations.'' IOC Framework at 1, 2.
The IOC Framework encourages bodies governing individual sports--
``particularly those in charge of organising elite-level
competition''--to develop eligibility criteria for sex-separate
competition that ``tak[e] into consideration the nature of each
sport,'' id. at 1, to work together to ``advance inclusion and prevent
discrimination based on gender identity and/or sex variations,'' id. at
2, and to ensure that any eligibility restrictions are ``evidence-
based'' and account for any unique competitive advantage or risk
associated with a specific sport, id. at 4. The IOC Framework also
provides that ``until evidence . . . determines otherwise, athletes
should not be deemed to have an unfair or disproportionate competitive
advantage due to their sex variations, physical appearance and/or
transgender status.'' Id. at 4.
In response to the shift by the NCAA and IOC to a sport-specific
approach, several sport governing bodies that set criteria for certain
non-school-based national and international competition, as well as
postsecondary athletic competition, have announced plans to review
their policies or have adopted or applied new policies regarding sex-
related eligibility criteria. Governing bodies in gymnastics, rowing,
and volleyball, for example, have announced policies that allow
athletes to participate consistent with their gender identity at lower
or non-elite levels of
[[Page 22870]]
competition, such as in competitions where athletes are not competing
for a place on a national team to represent the United States in
international competition, or where the rules of international sport
governing bodies would not apply. See, e.g., USA Gymnastics,
Transgender & Non-Binary Athlete Inclusion Policy at 2 (Apr. 2022),
<a href="https://usagym.org/PDFs/AboutUSAGymnastics/transgender_policy.pdf">https://usagym.org/PDFs/AboutUSAGymnastics/transgender_policy.pdf</a>
(``Transgender and non-binary athletes in levels other than Elite are
permitted to compete without restriction in the gender category with
which they identify.''); USRowing, Gender Identity Policy (Feb. 13,
2023), <a href="https://usrowing.org/documents/2022/11/28/Gender_Identity_Policy_021323.pdf">https://usrowing.org/documents/2022/11/28/Gender_Identity_Policy_021323.pdf</a> (``Athletes at the youth level
(youth, junior, high school, scholastic, [and certain other levels,
excluding collegiate and international competition]) shall be allowed
to participate in a rowing activity in accordance with their expressed
gender identity irrespective of the sex listed on the athlete's birth
certificate or student records, and regardless of whether the athlete
has undergone any medical treatment . . . .''); USA Volleyball, Gender
Competition Guidelines (2022-23 Season), <a href="https://usavolleyball.org/about/gender-guidelines">https://usavolleyball.org/about/gender-guidelines</a> (last visited Apr. 1, 2023) (``[n]o
restrictions'' for transgender girls ages 12 and under seeking to play
on girls' teams outside of international competition).
In the international, non-school-based context, some sport
governing bodies have adopted policies restricting participation in
high-level international women's competition to female athletes who
have not experienced male puberty, see, e.g., International Swimming
Federation (FINA), Policy on Eligibility for the Men's and Women's
Competition Categories (June 19, 2022) (FINA Policy on Eligibility),
<a href="https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf">https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf</a>; or
restricting participation in international events and setting of
certain recognized world records to those who satisfy specific
testosterone suppression criteria for a set period of time, see, e.g.,
Union Cycliste Internationale, Eligibility Regulations for Transgender
Athletes (June 22, 2022) (UCI Eligibility Regulations), <a href="https://assets.ctfassets.net/761l7gh5x5an/Et9v6Fyux9fWPDpKRGpY9/96949e5f7bbc8e34d536731c504ac96f/Modification_Transgender_Regulation_22_Juin_2022_ENG.pdf">https://assets.ctfassets.net/761l7gh5x5an/Et9v6Fyux9fWPDpKRGpY9/96949e5f7bbc8e34d536731c504ac96f/Modification_Transgender_Regulation_22_Juin_2022_ENG.pdf</a>. In addition,
at least one international governing body has announced plans to
revisit its existing criteria with the stated goal of creating
inclusive policies that allow for safe participation and fairness in
high-level international competition. See, e.g., World Lacrosse, World
Lacrosse Forms Partnership with National Center for Transgender
Equality to Create Trans-Inclusive Participation Policy (June 9, 2022),
<a href="https://worldlacrosse.sport/article/world-lacrosse-forms-partnership-with-national-center-for-transgender-equality">https://worldlacrosse.sport/article/world-lacrosse-forms-partnership-with-national-center-for-transgender-equality</a>.
At the secondary school level, State athletic associations have
discussed whether and how to adopt sex-related eligibility criteria
against the backdrop of State and Federal law, schools' experiences
with transgender students' participation in athletics, and the context
and purpose of interscholastic athletics. See, e.g., Luke Modrovsky,
Transgender Athletes--Participation, Equity and Competition (May 12,
2022), <a href="https://www.nfhs.org/articles/transgender-athletes-participation-equity-and-competition">https://www.nfhs.org/articles/transgender-athletes-participation-equity-and-competition</a>. A report on these discussions
includes an observation from a statewide athletic official that
although competition is an integral aspect of athletics, the
opportunity to participate in athletics at the elementary and secondary
levels also serves other educational purposes, including learning to
work as a team and building skills. See id. (quoting the executive
director of a State athletic association explaining that ``the purpose
of interscholastic activities is meant to be education-based and not
for the sole purpose of achieving scholarships, championship titles and
wider recognition in the sport'' and that ``[i]nterscholastic
activities remain an opportunity to develop a connection with teammates
and the school community, in addition to social, emotional, physical
and cognitive development'').
A number of State athletic associations that oversee
interscholastic athletics at the secondary school level, as well as
school districts, have adopted policies permitting transgender students
to participate on athletic teams consistent with their gender identity
with minimal or no restrictions. See, e.g., Wash. State Interscholastic
Activities Ass'n, Gender Diverse Youth Sport Inclusivity Toolkit at 8,
11 (2021), <a href="http://wiaa.com/ConDocs/Con1914/GenderDiverseToolkit.pdf">http://wiaa.com/ConDocs/Con1914/GenderDiverseToolkit.pdf</a>
(``All students should have the opportunity to participate in WIAA
athletics and/or activities in a manner that is consistent with their
gender identity. . . . Athletes will participate in programs [offered
separately for boys and girls] consistent with their gender identity .
. . .''); R.I. Interscholastic League, Rules & Regulations at art. 3,
Sec. 3(B) (2022), <a href="https://www.riil.org/page/3033">https://www.riil.org/page/3033</a> (``The RIIL has
concluded that it would be fundamentally unjust and contrary to
applicable state and federal laws, to preclude a student from
participation on a gender specific sports team that is consistent with
the public gender identity of that student for all other purposes.'');
L.A. Unified Sch. Dist., Policy Bulletin: Gender Identity and
Students--Ensuring Equity and Nondiscrimination at section II.H.2 (May
17, 2019), <a href="https://achieve.lausd.net/cms/lib/CA01000043/Centricity/Domain/383/BUL-6224.2%20Transgender%20Policy%205%2013%2019.pdf">https://achieve.lausd.net/cms/lib/CA01000043/Centricity/Domain/383/BUL-6224.2%20Transgender%20Policy%205%2013%2019.pdf</a>
(``Participation in competitive athletics, intramural sports, athletic
teams, competitions and contact sports shall be facilitated in a manner
consistent with the student's gender identity. . . .''). Other State
athletic associations governing interscholastic sports at the middle
school and high school level have adopted sex-related criteria that may
restrict some students from participating on male or female teams
consistent with their gender identity. See, e.g., N.M. Activities
Ass'n, Eligibility Bylaws section 6.1 (July 1, 2022), <a href="https://www.nmact.org/file/Section_6.pdf">https://www.nmact.org/file/Section_6.pdf</a> (``Participating students are required
to compete in the gender listed on their original or amended birth
certificate.''); Wis. Interscholastic Athletic Ass'n, Transgender
Participation Policy (2018), <a href="https://www.wiaawi.org/Portals/0/PDF/Eligibility/WIAAtransgenderpolicy.pdf">https://www.wiaawi.org/Portals/0/PDF/Eligibility/WIAAtransgenderpolicy.pdf</a> (requiring, among other things,
that transgender girls undergo one year of testosterone suppression
therapy to be eligible to participate on a female team).
The Department finds the work of these organizations on this issue
to be informative to the extent the organizations aim to balance
important interests, minimize harm to students whose opportunity to
participate on a male or female team consistent with their gender
identity would be limited or denied, and take account of the sport,
level of competition, and grade or education level of students.
Opportunity To Participate on Male and Female Teams Consistent With
Gender Identity
In light of the many positive benefits of participation in school
athletics discussed above, the Department's proposed regulation
reflects the understanding that students may be harmed significantly if
a school denies them the opportunity to participate in its athletic
program consistent with their gender identity. As discussed
[[Page 22871]]
elsewhere in this preamble, participation on a team that is
inconsistent with a student's gender identity is not a viable option
for many students. See, e.g., A.M., 2022 WL 2951430, at * 11
(describing a policy that prohibited students from participating on
teams consistent with their gender identity as ``punish[ing]'' those
students); Hecox, 479 F. Supp. 3d at 977 (``Participating in sports on
teams that contradict one's gender identity is equivalent to gender
identity conversion efforts, which every major medical association has
found to be dangerous and unethical.'' (internal quotation marks and
citation omitted)).
Federal and State courts also have identified additional, specific
harms to transgender students from being excluded from team
participation consistent with their gender identity, which the
Department recognizes are distinct from the harms to students who are
denied the opportunity to participate on a particular team based on sex
under the circumstances permitted in the Department's longstanding
athletics regulation. See, e.g., A.M., 2022 WL 2951430, at * 6, * 12
(noting that ``[p]laying softball helps to lessen the distressing
symptoms of gender dysphoria that A.M. suffers from and has allowed her
to experience life more fully as a girl'' and ``[s]oftball
participation has resulted in a better self-image and confidence for
A.M.'' whereas ``prohibiting A.M. from playing on the girls' softball
team will `out' her to her classmates'' and ``undermine her social
transition''); Hecox, 479 F. Supp. 3d at 987 (finding that a State law
preventing transgender women from participating on women's athletic
teams sponsored by public schools would harm the plaintiff, a
transgender woman, by denying her the opportunity to try out for and
compete on women's teams, subjecting her to the State's moral
disapproval of her identity, and subjecting her to the possibility of
embarrassment, harassment, and invasion of privacy through having to
verify her sex); Roe v. Utah High Sch. Activities Ass'n, No. 220903262,
2022 WL 3907182, at * 9-10 (Utah 3d Jud. Dist. Aug. 19, 2022)
(describing irreparable harm to mental and physical health that the
plaintiffs, three transgender girls, ``have suffered, and will continue
to suffer'' as a result of a Utah law banning transgender girls from
participating on girls' athletic teams and recognizing that ``the
stigma caused by the Ban has been immediate'').
Federal courts have also recognized that, because of these harms,
excluding transgender students from participating on male or female
athletic teams consistent with their gender identity can violate Title
IX's prohibition on sex discrimination. See, e.g., A.M., 2022 WL
2951430, at * 11 (finding strong likelihood of success on the merits of
the Title IX claim because prohibiting an individual from playing on a
team consistent with their gender identity ```punishes that individual
for his or her gender non-conformance,' which violates the clear
language of Title IX'' (citation omitted)); see also Hecox, 479 F.
Supp. 3d at 977, 987 (in a case involving an equal protection claim,
finding that a transgender college student faced ``irreparable harm''
from Idaho law categorically barring transgender girls and women from
participating on girls' or women's teams and that the law ``entirely
eliminates their opportunity to participate in school sports''). As
noted above, the court in B.P.J. reached a different conclusion about
the permissibility under Title IX of a ban on transgender students
participating in team sports consistent with their gender identity,
based on its view that the current regulation would permit such an
exclusion and that transgender girls could try out for the boys' teams.
2023 WL 111875, at * 9 (citing 34 CFR 106.41(b) and (c)).
Elements of the Proposed Regulation
The proposed regulation would require that if a recipient adopts or
applies sex-related criteria that would limit or deny a student's
eligibility to participate on a male or female team consistent with
their gender identity, such criteria 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 male
or female team consistent with their gender identity would be limited
or denied. The proposed regulation would not affect a recipient's
discretion under current Sec. 106.41(b) to offer separate male and
female athletic teams when selection is based on competitive skill or
the activity involved is a contact sport. The following discussion
separately addresses key elements of the proposed regulation.
Eligibility Criteria Covered by the Proposed Regulation
The proposed regulation would govern a narrow category of athletic
eligibility criteria: only those sex-related criteria that would limit
or deny a student's eligibility to participate on a male or female team
consistent with their gender identity. Many schools have adopted
criteria that govern students' eligibility to participate on athletic
teams that are unrelated to sex, such as attendance or academic
standing requirements (e.g., minimum grade-point average for all
student-athletes). Criteria such as these are outside the scope of the
proposed regulation.
By contrast, eligibility criteria would fall within the scope of
the proposed regulation if they are sex-related (e.g., they relate to
how a student's sex is determined for team-eligibility purposes,
including by imposing eligibility requirements related to a student's
sex characteristics) and they would limit or deny students' eligibility
to participate on a male or female team consistent with their gender
identity. These criteria could include, for example, a requirement
limiting or denying a student's eligibility for a male or female team
based on a sex marker on an identification document, such as a birth
certificate, passport, or driver's license. Criteria requiring physical
examinations or medical testing or treatment related to a student's sex
characteristics would also fall within the proposed regulation's scope
if the results of such examinations or testing or requiring such
treatment could be used to limit or deny a student's eligibility to
participate consistent with their gender identity. Such criteria, like
other sex-related eligibility criteria, would have to adhere to the
proposed regulation's requirements, including the requirement to
minimize harms.
The proposed regulation would not prohibit all uses of sex-related
criteria; rather, it would require that if such criteria limit or deny
a student's eligibility to participate on a male or female team
consistent with their gender identity, those criteria, for each sport,
level of competition, and grade or education level, would have to be
substantially related to the achievement of an important educational
objective and minimize harms to students whose opportunity to
participate on a male or female team consistent with their gender
identity would be limited or denied.
Additionally, the proposed regulation would apply only to those
sex-related criteria that would ``limit or deny'' students' eligibility
to participate consistent with their gender identity. Sex-related
criteria would ``limit'' eligibility if, for example, they do not allow
transgender students to participate fully on a male or female team
consistent with their gender identity (e.g., by permitting a student to
participate in some but not all competitions). Sex-related criteria
[[Page 22872]]
would ``deny'' students' eligibility to participate consistent with
gender identity if they foreclose students' opportunity to participate
on male or female teams consistent with their gender identity (e.g., by
requiring transgender students to participate consistent with their sex
assigned at birth or by prohibiting transgender girls who have
undergone endogenous puberty from participating on girls' teams).
Substantially Related to the Achievement of an Important Educational
Objective
The proposed regulation would require that sex-related criteria be
``substantially related to the achievement of an important educational
objective'' if those criteria would limit or deny students' eligibility
to participate on male or female athletic teams consistent with their
gender identity. Proposed Sec. 106.41(b)(2) does not specify the
objectives that a recipient may assert and instead would implement
Title IX's guarantee of equal opportunity in education by, in part,
specifying that the criteria must serve an important educational
objective.
The Department's proposed regulation is similar to the approach in
the Department's current Title IX regulation governing single-sex
classes, 34 CFR 106.34(b), which permits certain recipients to offer
single-sex classes when the single-sex nature of the class is ``based
on the recipient's important objective'' and ``substantially related to
achieving that objective.'' That regulation limits a recipient to one
of two specific important educational objectives.\11\ Although the
proposed athletics regulation would not limit the important educational
objectives a recipient may seek to achieve, ensuring fairness in
competition and prevention of sports-related injury are examples of
possible important educational objectives that recipients have asserted
and might assert in the future. As with the single-sex classes
regulation, this proposed regulation is informed by case law
interpreting the Equal Protection Clause, which requires public schools
to demonstrate that any sex-based classification they seek to impose is
substantially related to the achievement of an important governmental
objective. See Virginia, 518 U.S. at 532-33; Hecox, 479 F. Supp. 3d at
973; see also 71 FR 62533.
---------------------------------------------------------------------------
\11\ Specifically, Sec. 106.34(b)(1)(i) provides that a
recipient must choose one of these two important educational
objectives: ``(A) To improve educational achievement of its
students, through a recipient's overall established policy to
provide diverse educational opportunities, provided that the single-
sex nature of the class or extracurricular activity is substantially
related to achieving that objective; or (B) To meet the particular,
identified educational needs of its students, provided that the
single-sex nature of the class or extracurricular activity is
substantially related to achieving that objective.''
---------------------------------------------------------------------------
The Department notes that a recipient could not satisfy the
proposed regulation's requirement that criteria be substantially
related to achieving an important educational objective if its
objective is communicating or codifying disapproval of a student or a
student's gender identity. See, e.g., Hecox, 479 F. Supp. 3d. at 987
(describing Idaho's restriction as impermissibly communicating the
State's moral disapproval of the transgender plaintiff's identity); cf.
Romer v. Evans, 517 U.S. 620, 634-35 (1996) (`` `[I]f the
constitutional conception of ``equal protection of the laws'' means
anything, it must at the very least mean that a bare . . . desire to
harm a politically unpopular group cannot constitute a legitimate
governmental interest.' '' (alterations and emphasis in original)
(quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973))). Nor may
a recipient adopt sex-related criteria solely for the purpose of
excluding transgender students from sports, Hecox, 479 F. Supp. 3d at
984-85 (noting the State of Idaho failed to identify a legitimate
interest served by the State law that State and athletic association
rules did not already address, ``other than an invalid interest of
excluding transgender women and girls from women's sports entirely,
regardless of their physiological characteristics''), or to require
adherence to sex stereotypes, Virginia, 518 U.S. at 533 (affirming that
States ``must not rely on overbroad generalizations about the different
talents, capacities, or preferences of males and females''), or solely
for the purpose of administrative convenience. See Wengler v. Druggists
Mut. Ins. Co., 446 U.S. 142, 151-52 (1980) (rejecting justification for
providing death benefit to women only based on assertion that ``it is
more efficient to presume [women's] dependency [on men . . . ] than to
engage in case-to-case determination''); Frontiero v. Richardson, 411
U.S. 677, 689-90 (1973).
An asserted purpose also would not satisfy the proposed regulation
if, rather than being a genuine educational objective of the recipient,
it is a pretext for an impermissible interest in singling out
transgender students for disapproval or harm. See, e.g., Hecox, 479 F.
Supp. 3d at 984 (noting Idaho ``[l]egislature appeared less concerned
with ensuring equality in athletics than it was with ensuring exclusion
of transgender athletes''); cf. Virginia, 518 U.S. at 533 (explaining
that a State's justification for sex-related differential treatment
``must be genuine, not hypothesized or invented post hoc in response to
litigation'').
Separately, interests in fairness in competition and in preventing
sports-related injury to students have been advanced by some
stakeholders and discussed by Federal courts in evaluating sex-related
eligibility criteria for limiting or denying students' participation on
male or female teams consistent with their gender identity. Thus, the
Department anticipates that a recipient might assert fairness in
competition or prevention of sports-related injury as an important
educational objective in its athletic programs, particularly for older
students in competitive athletic programs.
The Department recognizes that competition is an integral part of
many team sports, particularly at the high school and collegiate level,
and that schools have an interest in ensuring competition is fair,
including that competitors meet the relevant criteria for competition
in their league, such as age and skill level, following applicable
rules, and otherwise engaging in fair play. See, e.g., 2008 Dear
Colleague Letter on Title IX and Athletic Activities (considering
competition, among other factors, when determining whether an activity
is a sport that can be counted as part of a recipient's athletic
program for the purpose of evaluating Title IX compliance and noting
that competitive interscholastic and intercollegiate athletic
opportunities are generally ``governed by a specific set of rules of
play . . . which include objective, standardized criteria by which
competition must be judged''). Likewise, the Department recognizes that
schools have an interest in the prevention of sports-related injury. As
some stakeholders expressed, ensuring fair competition and prevention
of sports-related injury does not necessarily require schools to adopt
or apply sex-related criteria that would limit or deny a student's
eligibility to participate on a male or female team consistent with
their gender identity. As discussed above, many schools do not impose
such restrictions, and some sport governing bodies impose such
restrictions only for older students in highly competitive settings.
See, e.g., USRowing, Gender Identity Policy at 1; FINA Policy on
Eligibility.
Some stakeholders expressed their views that fairness in
competition depends on having generally applicable competition rules
and cannot be
[[Page 22873]]
determined based on whether a particular student wins or loses, and
that schools and athletic associations use various strategies to
address injury-related concerns, recognizing that student-athletes vary
widely in size and strength on any given team. Strategies noted by
stakeholders included appropriate coaching and training, requiring use
of protective equipment, and specifying rules of play, all of which can
protect against sports-related injury without imposing sex-related
eligibility criteria that would limit or deny student participation
consistent with their gender identity. Some of these stakeholders thus
asserted that the goals of fair competition and prevention of sports-
related injury could be achieved while allowing all students the
opportunity to participate on athletic teams consistent with their
gender identity, particularly at pre-collegiate and college club and
intramural levels.
On the other hand, other stakeholders noted that they would view
eligibility rules that permit participation by transgender students as
unfair or unsafe and asserted that some female students might choose
not to participate on female teams under such rules. Many of these
stakeholders focused their comments on participation by transgender
girls and women who have undergone endogenous puberty, resulting in
potentially unfair advantages in size, weight, and strength differences
and potentially posing a risk of injury to others. Other stakeholders
countered, as noted above, that there are significant differences in
size, weight, and strength among girls and women who are not
transgender. Some of these stakeholders also indicated that mitigating
measures would be sufficient to address any risk of unfair advantage in
competition or risk of sports-related injury on female teams.
Courts have found fairness in competition to be an important
educational objective in the context of determining whether schools
could provide sex-separate athletic teams. For example, in Clark ex
rel. Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1131 (9th
Cir. 1982), the Ninth Circuit recognized the importance of ``providing
equal opportunities for women'' athletes and agreed with the Arizona
Interscholastic Association that male students would displace female
students in volleyball ``to a substantial extent'' if not excluded from
competition. And, in Hecox, the court and all parties recognized
Idaho's important governmental interest in promoting sex equality by
providing female athletes from elementary school through college a fair
opportunity ``to demonstrate their skill, strength, and athletic
abilities'' in school-sponsored athletic competition. 479 F. Supp. 3d
at 978.
The Department recognizes fairness in competition and prevention of
sports-related injury can be important educational objectives. This
recognition is consistent with stakeholder feedback, case law, and
current Sec. 106.41(b), which permits teams to be separated by sex
where selection for such teams is based upon competitive skill or the
activity involved is a contact sport. Although many schools presently
work to ensure fairness in competition and prevention of sports-related
injury while allowing all students to participate on male or female
teams consistent with their gender identity, the proposed regulation
would permit a recipient to take a different approach as long as the
criteria used to determine who can participate on a particular male or
female athletic team are substantially related to achieving that
important educational objective and comply with the proposed
regulation's other requirements.
Substantial Relationship Requirement
Under the Department's proposed regulation, sex-related criteria
that would limit or deny a student's eligibility to participate on a
male or female team consistent with their gender identity would need to
be, for each sport, level of competition, and grade or education level,
``substantially related'' to achieving an important educational
objective.
As discussed above, the substantial relationship requirement, like
the achievement of an important educational objective, is similar to
the standard in the Department's Title IX regulation governing access
to single-sex classes, 34 CFR 106.34, and informed by case law
interpreting the Equal Protection Clause. See Virginia, 518 U.S. at
532-33; Hecox, 479 F. Supp.3d at 978. Under the proposed regulation,
consistent with courts' equal protection analysis, sex-related criteria
would be substantially related to achievement of an important
educational objective if there is a ``direct, substantial relationship
between'' a recipient's objective and the means used to achieve that
objective, see Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982), and if the criteria do not rely on overly broad generalizations
about the talents, capacities, or preferences of male and female
students, see, e.g., Virginia, 518 U.S. at 533; Hecox, 479 F. Supp. 3d
at 982 (``[I]t appears the `absolute advantage' between transgender and
cisgender women athletes [claimed by defendants] is based on overbroad
generalizations without factual justification.'').
Under proposed Sec. 106.41(b)(2), for example, a recipient would
be permitted, consistent with Title IX's requirement to provide overall
equal athletic opportunity for students regardless of sex, to rely on
fairness in competition as an important educational objective to
justify its use of sex-related criteria that would limit or deny
students' eligibility to participate consistent with their gender
identity--but only if those criteria are substantially related to
ensuring fairness in competition in that particular sport at the
applicable level of competition and grade or education level. Cf.
Clark, 695 F.2d at 1127 (upholding policy excluding boys from girls'
high school volleyball teams to preserve participation opportunities
for girls). As courts have noted, for example, it would not be
reasonable to assume that all transgender girls and women are similarly
situated in their physical abilities to cisgender boys and men. See,
e.g., Hecox, 479 F. Supp. 3d. at 978. Therefore, criteria that assume
all transgender girls and women possess an unfair physical advantage
over cisgender girls and women in every sport, level of competition,
and grade or education level would rest on a generalization that would
not comply with the Department's proposed regulation. The court in
Hecox made a similar point when it rejected the premise of an Idaho law
that, in every circumstance, ``transgender women and girls have `an
absolute advantage' over non-transgender girls'' because evidence in
the record ``undermine[s] this conclusion.'' 479 F. Supp. 3d at 980-81.
The court found that although ``[t]he Equal Protection Clause does not
require courts to disregard the physiological differences between men
and women,'' the specific principles that support ``sex separation in
sport'' generally ``do not appear to hold true for women and girls who
are transgender.'' Id. at 976-77 (discussing Clark, 695 F.2d at 1129,
1131). Criteria that categorically exclude all transgender girls and
women from participating on any female athletic teams, for example,
would not satisfy the proposed regulation because, in taking a one-
size-fits-all approach, they rely on overbroad generalizations that do
not account for the nature of particular sports, the level of
competition at issue, and the grade or education level of students to
which they apply.
A State trial court in Utah observed that ``the evidence
suggest[ed] that being transgender is not `a legitimate accurate proxy'
for athletic performance.'' Utah
[[Page 22874]]
High Sch. Activities Ass'n, 2022 WL 3907182, at *8 (citations omitted).
That court explained that ``[m]any transgender girls--including two of
the plaintiffs in this case--medically transition at the onset of
puberty, thereby never gaining any potential advantages that the
increased production of testosterone during male puberty may create.''
Id. The court also noted that other transgender girls ``may simply have
no discernible advantage in any case, depending on the student's age,
level of ability, and the sport in which they wish to participate.''
Id. In short, although fairness in competition may be an important
educational objective, the recipient's sex-related eligibility criteria
must be substantially related to the actual achievement of that
objective. That substantial relationship could not be established by
reliance on overbroad generalizations based on sex.
Similarly, although some stakeholders expressed a concern that
allowing any transgender girls and women to participate in sports
consistent with their gender identity could displace cisgender girls
and women from participating in sports, other stakeholders observed
that very few female student-athletes are transgender and, as just
discussed, transgender students do not necessarily have greater
physical or athletic ability than cisgender students that would affect
cisgender students' equal opportunity to participate in a recipient's
athletic program. Some courts have also observed that the very small
number of transgender girls and women who are student-athletes must be
considered when evaluating claims that those athletes pose an outsized
risk to participation by and opportunities for cisgender girls and
women who are student-athletes. See, e.g., Utah High Sch. Activities
Ass'n, 2022 WL 3907182, at *8 (finding ``no support for a claim `that
allowing transgender women to compete on women's teams would
substantially displace female athletes' '' (quoting Hecox, 479 F. Supp.
3d at 977-78)).
The substantial relationship requirement thus would mean that if a
recipient adopts or applies sex-related criteria that would limit or
deny students' eligibility to participate on a male or female team
consistent with their gender identity, the justification for those
criteria must be based on ``reasoned analysis rather than through the
mechanical application of traditional, often inaccurate, assumptions.''
Miss. Univ. for Women, 458 U.S. at 726; see also, e.g., Clark, 695 F.2d
at 1129 (explaining that sex-based criteria would not be substantially
related to promoting fairness in competition if based on overbroad
generalizations ``without factual justification'' (citing Schlesinger
v. Ballard, 419 U.S. 498, 508 (1975), and Miss. Univ. for Women, 458
U.S. 718)).
If a school can achieve its objective using means that would not
limit or deny a student's participation consistent with their gender
identity, its use of sex-related criteria may be pretextual rather than
substantially related to achievement of that important educational
objective. Thus, under proposed Sec. 106.41(b)(2), whether the
objective could be accomplished through alternative criteria that would
not limit or deny a student's eligibility to participate on a male or
female team consistent with their gender identity would be relevant to
the analysis.
Federal courts have taken a similar approach in evaluating
challenges to sex-based classifications under the Equal Protection
Clause by considering whether government entities could achieve the
same goal using other means. For example, the Supreme Court noted that
it was uncontested that the Virginia Military Institute could achieve
its goal of maintaining its adversative training program with some
adjustments short of denying admission to all female applicants.
Virginia, 518 U.S. at 550 n.19; see also, e.g., Sessions v. Morales-
Santana, 582 U.S. 47, 63 n.13 (2017) (``[O]ur decisions reject measures
that classify unnecessarily and overbroadly by gender when more
accurate and impartial lines can be drawn.''); Orr v. Orr, 440 U.S.
268, 283 (1979) (rejecting the use of gender-based classifications
where an important governmental interest is ``as well served by a
gender-neutral classification'' because a gender-based classification
``carries with it the baggage of sexual stereotypes''); Caban v.
Mohammed, 441 U.S. 380, 393 & n.13 (1970) (rejecting sex-based
distinction while noting that the State could achieve its interests
``through numerous other mechanisms more closely attuned to those
interests'').
The Department notes that to satisfy the substantial relationship
requirement, a recipient would not be permitted to rely on false
assumptions about transgender students. For example, criteria that
exclude transgender students from participation on a male or female
team based on a false assumption that transgender students are more
likely to engage in inappropriate conduct than other students would not
satisfy the proposed regulation because the criteria would not be
substantially related to achieving an important educational objective.
See, e.g., Parents for Privacy v. Barr, 949 F.3d 1210, 1228-29 (9th
Cir. 2020) (rejecting Title IX claim because ``[t]he use of facilities
for their intended purpose, without more, does not constitute an act of
harassment simply because a person is transgender''); Doe v. Boyertown
Sch. Dist., 897 F.3d 518, 534 (3d Cir. 2018) (rejecting claim that a
transgender student's presence in sex-separate facilities violated
cisgender students' Title IX rights and distinguishing cases involving
voyeurism and sexual harassment as not analogous). Moreover, nothing in
Title IX precludes a school from taking nondiscriminatory steps to
prevent misconduct and protect privacy for all students.
Grade or Education Level
The Department's proposed regulation would require that sex-related
eligibility criteria that would limit or deny a student's eligibility
to participate on a male or female team consistent with their gender
identity must, for each grade or education level, be substantially
related to the achievement of an important educational objective. This
requirement would recognize that students of varying grades or
education levels are not necessarily similarly situated with respect to
the purposes of team participation, the harms resulting from exclusion
from participation, their athletic skills development, other
developmental factors, or their legal status as a minor or adult. Thus,
any sex-related eligibility criteria must account for those factors
that affect students in the particular grade or education level to
which the criteria would apply.
Although competition is an aspect of many team sports across grades
and education levels, athletic teams offered by schools for students in
earlier grades, including those in elementary and middle school, also
present an important opportunity to introduce students to new
activities for which little or no prior experience is required, acquire
basic skills associated with a particular sport, and develop
introductory skills related to physical fitness, leadership, and
teamwork. See Kelsey Logan & Steven Cuff, Am. Acad. Pediatrics Council
on Sports Med. & Fitness, Organized Sports for Children,
Preadolescents, and Adolescents, Pediatrics (June 2019), <a href="https://publications.aap.org/pediatrics/article/143/6/e20190997/37135/Organized-Sports-for-Children-Preadolescents-and">https://publications.aap.org/pediatrics/article/143/6/e20190997/37135/Organized-Sports-for-Children-Preadolescents-and</a> (associating
participation in organized sports in childhood with long-term
participation in organized sports, development of life skills, and a
high level of physical fitness later in life).
[[Page 22875]]
Reinforcing this point, the Department's review of the publicly
available athletic association policies for all 50 States and the
District of Columbia and Puerto Rico indicates that the overwhelming
majority of State athletic associations do not regulate athletic
competition between elementary school teams.
Similarly, the Department's review found that only about half of
State athletic associations regulate athletic activities in middle
school, and many of those that regulate make clear the mission of
athletics in those grades is to encourage broad participation, basic
skills development, and other aspects of student well-being. See, e.g.,
Wis. Interscholastic Athletic Ass'n, Middle Level Handbook (2022-23) at
2, <a href="https://www.wiaawi.org/Portals/0/PDF/Publications/jrhandbook.pdf">https://www.wiaawi.org/Portals/0/PDF/Publications/jrhandbook.pdf</a>
(``The developmental characteristics of young adolescents should
provide the foundation for the middle level athletic programs and
philosophy. . . . Programs should promote behaviors that include
cooperation, sportsmanship and personal improvement. Winning is not the
primary goal of the program. . . . The program should be open to all
young adolescents and provide a positive experience. All young
adolescents should have the opportunity to participate, play and
experience skill improvement.''); Iowa High Sch. Athletic Ass'n, Junior
High Sports Manual (2021-23) at 1, <a href="https://www.iahsaa.org/wp-content/uploads/2022/08/2021-23-Junior-High-Manual-8.17.22.pdf">https://www.iahsaa.org/wp-content/uploads/2022/08/2021-23-Junior-High-Manual-8.17.22.pdf</a> (``The primary
purpose of the junior high school athletic program is participation,
with emphasis on the development of skills, sportsmanship, and
citizenship of all students.''); S.C. High Sch. League, 2022-23 Middle
School Rules & Regulations at 1, <a href="https://schsl.org/archives/7950">https://schsl.org/archives/7950</a> (``The
program must be justified on a basis of contribution to the desirable
development of the participants. The welfare of the youth concerned is
of greatest importance. All other needs and problems should be
secondary.'').
One State athletic association explained, for example, that member
schools' goals for offering interscholastic athletic competition and
activities for middle school students should encourage broad
participation for students in middle school in recognition of the
``great range of individual differences among boys and girls of this
age (age; body build; interest; ability; experience; health, and the
stages of physiological, emotional and social maturity).'' S.C. High
Sch. League, 2022-23 Middle School Rules & Regulations at 1, <a href="https://schsl.org/archives/7950">https://schsl.org/archives/7950</a>. To that end, it directs schools to approach
competition ``from as broad a base as possible to offer experience to
many boys and girls.'' Id.
The Department recognizes that recipients that offer male and
female teams to students in early grades have a significant interest in
providing all of their students an opportunity to gain foundational
physical, emotional, academic, and interpersonal benefits, and other
life skills associated with team sports participation regardless of
sex. See Kelsey Logan & Steven Cuff, Am. Acad. Pediatrics Council on
Sports Med. & Fitness, Organized Sports for Children, Preadolescents,
and Adolescents, Pediatrics (June 2019) (describing the many benefits
of youth participation, including children, preadolescents, and
adolescents, in organized sports); Anne C. Fletcher et al., Structured
Leisure Activities in Middle Childhood: Links to Well-Being, J.
Community Psychology 31-6, 641-59 (2003) (associating greater
psychosocial development with participation in sport activities in
elementary school). Barring students from participating on teams
consistent with their gender identity may impede them from developing
an interest in or aptitude for team sports or for athletic activity
altogether, including into adulthood, resulting in negative health and
well-being consequences and long-term loss of opportunity. See, e.g.,
Sandra D. Simpkins et al., Participating in Sport and Music Activities
in Adolescence: The Role of Activity Participation and Motivational
Beliefs During Elementary School, 39 J. Youth Adolescence 1368 (2009),
<a href="https://link.springer.com/article/10.1007/s10964-009-9448-2">https://link.springer.com/article/10.1007/s10964-009-9448-2</a> (concluding
that elementary school children who did not participate in sports were
unlikely to participate when they become adolescents); cf. A.M., 2022
WL 2951430, at *11 (describing distress and other harms associated with
prohibiting students from playing on a team consistent with their
gender identity).
Accordingly, the Department currently believes that there would be
few, if any, sex-related eligibility criteria applicable to students in
elementary school that could comply with the proposed regulation, and
that it would be particularly difficult for a recipient to comply with
the proposed regulation by excluding students immediately following
elementary school from participating on male or female teams consistent
with their gender identity. The Department welcomes comments on whether
any sex-related eligibility criteria can comply with this proposed
regulation when applied to students in these earlier grades and, if so,
the types of criteria that may comply with the proposed regulation. The
Department anticipates that at the high school and college level,
schools' application or adoption of sex-related eligibility criteria to
ensure an important educational objective, such as fairness in
competition in their athletic programs, may be more likely to satisfy
the proposed regulation.
Level of Competition
The proposed regulation would specify that any sex-related criteria
that would limit or deny a student's eligibility to participate on a
male or female team must be substantially related to achieving an
important educational objective for each level of competition to which
it applies.
This aspect of the proposed regulation would recognize that school-
based athletic team offerings vary widely across the United States. To
the extent teams are offered for students at earlier grades and levels
of education, many schools prioritize broad participation and teaching
basic skills. These teams are often not highly selective, including
``no-cut'' teams that allow all students to join the team and
participate, and rarely provide elite competition opportunities, as
discussed above in Existing Approaches to Eligibility Criteria for Male
and Female Teams. Some schools also offer teams at lower levels of
competition that are designed to encourage broad participation and help
students build basic skills (e.g., intramural, junior varsity, unified)
that often permit all or most interested students to participate
without an expectation of high-level competition (e.g., varsity). Other
teams, more typically for older students who have advanced skills,
including at many postsecondary institutions, are more selective and
engage in elite competition. See generally NCAA, Overview, <a href="https://www.ncaa.org/sports/2021/2/16/overview.aspx">https://www.ncaa.org/sports/2021/2/16/overview.aspx</a> (last visited Mar. 29,
2023) (describing levels of intercollegiate competition for member
colleges and universities).
Some stakeholders urged the Department to develop regulations
governing the participation of students on male or female teams
consistent with their gender identity in a manner that accounts for
different levels of competition. In a view expressed by some
stakeholders, a one-size-fits-all policy approach would not be
appropriate because athletic participation is organized differently at
various levels of competition with some male and female teams open to
all students and some that accommodate a larger roster of students with
widely varying skill levels. Some stakeholders
[[Page 22876]]
also noted that at high levels of competition in high school, students
may be competing with each other for limited scholarship and
recruitment opportunities. Some stakeholders urged that it is
appropriate for sex-related criteria that govern the participation of
athletes consistent with gender identity to account for differences at
these levels of competition.
The Department is also aware of distinctions that national and
international sport governing bodies draw among athletes at different
levels of competition. In some cases, the criteria that these
organizations require transgender athletes to meet to participate on a
male or female team consistent with their gender identity differ based
on the level of competition. As noted above, for example, USA
Gymnastics permits transgender athletes to participate ``without
restriction'' in all competition activities below the elite level. USA
Gymnastics, Transgender & Non-Binary Athlete Inclusion Policy at 2.
Similarly, World Athletics, the international governing body for track
and field events, has adopted regulations that apply only at the World
Rankings competition level or to athletes who wish to have their
performance at a lower competition level recognized as a World Record.
World Athletics permits member federations to set their own regulations
to determine eligibility to participate in lower level competitions
consistent with an athlete's gender identity. See World Athletics, Rule
C3.5A--Eligibility Regulations for Transgender Athletes (Mar. 2023)
(Rules 2.1 and 2.5), <a href="https://www.worldathletics.org/about-iaaf/documents/book-of-rules">https://www.worldathletics.org/about-iaaf/documents/book-of-rules</a>.
In light of these examples, the Department proposes a standard that
would specifically require a recipient that adopts or applies sex-
related eligibility criteria for male and female teams to account for
the level of competition at issue. As noted above, the Department
expects sex-related eligibility criteria to be more common and more
likely to satisfy the proposed regulation at higher grade levels,
particularly high school and postsecondary levels.
Sport
The proposed regulation would specify that any sex-related criteria
for eligibility to participate on a male or female team must be
substantially related to achievement of an important educational
objective for each sport to which it applies. This requirement is
consistent with the Javits Amendment's direction that the Title IX
regulations include reasonable athletics provisions that ``consider[ ]
the nature of particular sports.'' Education Amendments of 1974 section
844.
The Department proposes this requirement because not all
differences among students confer a competitive advantage or raise
concerns about sports-related injury in every sport, and
``[c]lassification on strict grounds of sex, without reference to
actual skill differentials in particular sports, would merely echo
`archaic and overbroad generalizations.' '' Att'y Gen. v. Mass.
Interscholastic Athletic Ass'n, 393 NE2d 284, 293 (Mass. 1979)
(citations omitted) (rejecting the athletic association's argument that
it was justified in imposing a complete ban on male athletes
participating on female athletic teams because of an assertion of the
male athletes' competitive advantage in all sports); see also, e.g.,
Utah High Sch. Activities Ass'n, 2022 WL 3907182, at *8-9 (finding that
challenged Utah law had a substantial likelihood of violating the State
constitution because it ``prevents all transgender girls from competing
on all girls' teams, regardless of any potentially relevant factors,
such as . . . the nature of the particular sport'' (emphasis in
original)).
School districts and postsecondary institutions offer a wide
selection of sports (e.g., badminton, baseball, basketball, bowling,
curling, football, golf, gymnastics, riflery, skiing, soccer, softball,
swimming and diving, tennis, trap shooting, volleyball, water polo).
See Nat'l Fed'n of State High Sch. Ass'ns, High School Athletics
Participation Survey (2021-22), <a href="https://www.nfhs.org/media/5989280/2021-22_participation_survey.pdf">https://www.nfhs.org/media/5989280/2021-22_participation_survey.pdf</a>. These and other sports that schools
offer each have unique rules and prioritize varied skills and
attributes. Likewise, students on any given team will typically vary
significantly in skills, size, strength, and other attributes that may
be relevant to their chosen sport or position within a sport. Thus,
under the proposed regulation, any sex-related eligibility criteria for
male or female teams that would limit or deny participation consistent
with gender identity would need to be substantially related to
achieving an important educational interest in relation to the
particular sport to which the criteria apply. Overbroad generalizations
that do not account for the nature of particular sports would not be
sufficient to comply with the proposed regulation.
The proposed regulation also would address issues raised in
feedback the Department received from stakeholders who suggested that
any regulations the Department might adopt should account for
variations among sports. Stakeholders noted that outside the
educational setting, national and international sport governing bodies
set rules for participation and competition that differ by sport. As
discussed above, the NCAA and the IOC have directed the entities that
set rules for participation and competition in intercollegiate and
international sporting events recognized by the NCAA and the IOC
respectively to adopt a sport-specific approach for any sex-related
eligibility criteria to participate on male or female teams consistent
with gender identity. As the IOC explained, sport governing bodies must
ensure that any sex-related eligibility criteria included in their
policies ``tak[e] into consideration the nature of each sport,'' IOC
Framework at 1, and account for any sport-specific competitive
advantage or risk, id. at 4. The Department notes, however, that the
proposed regulation would not necessarily require schools to adopt
distinct eligibility criteria for each sport; rather, where sex-related
criteria would limit or deny students' eligibility to participate
consistent with their gender identity, the criteria must satisfy the
proposed regulation as applied to that sport.
The proposed regulation would therefore provide that, in light of
the variation among sports, a recipient that adopts or applies sex-
related eligibility criteria for male or female teams must demonstrate
that its criteria are substantially related to achievement of an
important educational objective for the particular sport to which they
apply.
Harm Minimization Requirement
Proposed 106.41(b)(2) would also require that, if a recipient
adopts or applies sex-related criteria that would limit or deny
students' eligibility to participate on a male or female team
consistent with their gender identity, it must do so in a way that
minimizes harms to students whose opportunity to participate on a male
or female team consistent with their gender identity would be limited
or denied.
As explained earlier in this preamble, Title IX generally prohibits
a recipient from excluding students from an education program or
activity on the basis of sex when the exclusion causes more than de
minimis harm. When students are separated or treated differently based
on sex, a recipient risks harming those students in a way that would
ordinarily violate Title IX. See 34 CFR 106.31(b)(4) and (7) (providing
that, ``[e]xcept as provided in this subpart, in providing any aid,
benefit, or service to a student, a recipient shall not, on the basis
of sex
[[Page 22877]]
. . . [s]ubject any person to separate or different rules of behavior,
sanctions, or other treatment . . . [or] [o]therwise limit any person
in the enjoyment of any right, privilege, advantage, or opportunity'');
see also, e.g., Grimm, 972 F.3d at 617 (recognizing that school's
imposition of different rules on transgender students than other
students in their use of school facilities was ``sufficient to
constitute harm under Title IX''). But see Adams, 57 F.4th at 814-15
(holding school district policy that excludes transgender students from
restrooms that correspond to their gender identity does not violate
Title IX regulations because of the language of 34 CFR 106.33). The
July 2022 NPRM proposed amendments to the Department's Title IX
regulations that would clarify that a recipient must not separate or
treat students differently in a manner that discriminates on the basis
of sex by subjecting a person to more than de minimis harm unless
otherwise permitted by Title IX or the Department's Title IX
regulations. 87 FR 41534-37. Those proposed amendments would further
clarify that a policy or practice that prevents a person from
participating in an education program or activity consistent with their
gender identity subjects a person to more than de minimis harm on the
basis of sex. Id.
Consistent with the Javits Amendment, the Department's Title IX
regulations have taken a different approach in the athletics context,
permitting a recipient to offer male and female athletic teams to
promote equal opportunity for all athletes, even though some harm may
be caused when a recipient offers sex-separate athletic teams. In
particular, current Sec. 106.41(b), in place since 1975, permits a
recipient to offer male and female athletic teams under certain
circumstances, and such teams may in those circumstances exclude some
students on the basis of sex. This longstanding requirement reflects
the Department's recognition that a recipient's provision of male and
female teams can advance rather than undermine overall equal
opportunity in the unique context of athletics by creating meaningful
participation opportunities that were historically lacking for women
and girls. See 1979 Policy Interpretation, 44 FR 71421 (``If women
athletes, as a class, are receiving opportunities and benefits equal to
those of male athletes, individuals within the class should be
protected thereby.'').
The Department also recognizes that overall equal opportunity does
not require identical programs for male and female athletes, id. at
71421-22, and thus a recipient may, and has always been permitted to,
deny students the opportunity to participate on a particular male or
female team based on sex under certain circumstances. For example, a
recipient may, in some circumstances, offer a volleyball team for girls
but not boys, and a boy who would like to play on the school's
volleyball team may not be able to do so for reasons discussed above.
But the permissibility of sex-separate teams does not exempt a
recipient from its responsibility not to otherwise discriminate based
on sex when offering opportunities to participate on those teams.
A school policy of separating students on the basis of particular
reproductive or other sex-based characteristics, see, e.g., B.P.J.,
2023 WL 111875, at *2 (evaluating West Virginia's classification of
students based on ``reproductive biology and genetics at birth''), will
not materially harm the vast majority of students, as those sex-related
criteria permit them to participate on athletic teams consistent with
their gender identity. But when sex-related criteriaLGB do limit or
deny a student's eligibility to participate on a male or female
athletic team consistent with their gender identity, the student is
subjected to harms based on sex that are distinct from the harms
otherwise permitted under the Department's longstanding athletics
regulation (e.g., a girl who is not selected for the girls' soccer team
based on her athletic skills or a boy who is not eligible to play on
the girls' volleyball team when the recipient does not offer a boys' or
coeducational volleyball team). Criteria that limit or deny students'
eligibility to participate in sports consistent with their gender
identity can force individual students to disclose that they are
transgender, which can be ``extremely traumatic'' and ``undermine [a
student's] social transition,'' A.M., 2022 WL 2951430, at *11-12;
subject them to ``embarrassment, harassment, and invasion of privacy
through having to verify [their] sex,'' Hecox, 479 F. Supp. 3d at 987;
and can communicate disapproval of transgender students, ``which the
Constitution prohibits'' in the context of public schools, Hecox, 479
F. Supp. 3d at 987 (citing Lawrence v. Texas, 539 U.S. 558, 582-83
(2003)). Further, such sex-related exclusion leaves affected students
with no viable opportunity to participate in athletics if the only
other option is to participate on a team that does not align with their
gender identity. Hecox, 479 F. Supp. 3d at 977 (citing evidence that,
for transgender students, participating on a team that is inconsistent
with their gender identity is equivalent to medically harmful gender
identity conversion efforts).
The current regulations, however, do not expressly address these
distinct harms caused by sex-related criteria that limit or deny
students' eligibility to participate on male or female teams consistent
with their gender identity. Proposed Sec. 106.41(b)(2) would account
for such harms by requiring that such criteria be adopted and applied
in a way that minimizes the harms caused to those students. As a
result, even sex-related criteria that are substantially related to the
achievement of an important educational objective would violate
proposed Sec. 106.41(b)(2) if the recipient can reasonably adopt or
apply alternative criteria that would be a less harmful means of
achieving the recipient's important educational objective. For example,
a recipient might adopt sex-related criteria that require documentation
of student-athletes' gender identity based on its interest in
providing, consistent with Title IX, equal athletic opportunity on male
and female teams under Sec. 106.41(c). Under proposed Sec.
106.41(b)(2), the recipient would need to design those criteria to
minimize the potential harms imposed on affected students (e.g.,
difficulty of obtaining documentation, risk of invasion of privacy or
disclosure of confidential information). If the recipient can
reasonably adopt or apply alternative criteria that cause less harm and
still achieve its important educational objective, the recipient would
not be permitted to adopt the more harmful criteria.
In sum, the proposed regulation would preclude a recipient from
implementing sex-based classifications more broadly than is necessary
to implement the statute's underlying goals, consistent with Title IX's
guarantee that ``[n]o person in the United States'' shall be subject to
prohibited discrimination on the basis of sex. 20 U.S.C. 1681(a)
(emphasis added). Proposed Sec. 106.41(b)(2) would thus provide
recipients greater clarity on how to comply with Title IX's
nondiscrimination obligation if recipients adopt or apply sex-related
criteria that would limit or deny a student's eligibility to
participate on male or female athletic teams consistent with their
gender identity.
Directed Questions
The Department continues to consider how its Title IX regulations
should clarify the permissibility of sex-related criteria that would
limit or deny a student's eligibility to participate on a
[[Page 22878]]
male or female athletic team consistent with their gender identity. The
Department therefore specifically invites further public comment on:
a. Whether any alternative approaches to the Department's proposed
regulation would better align with Title IX's requirement for a
recipient to provide equal athletic opportunity regardless of sex in
the recipient's athletic program as a whole;
b. What educational objectives are sufficiently important to
justify a recipient imposing sex-related criteria that would limit or
deny a student's eligibility to participate on a male or female
athletic team consistent with their gender identity and whether those
objectives should be specified in the regulatory text;
c. Whether and how the permissibility of particular sex-related
eligibility criteria should differ depending on the sport, level of
competition, grade or education level, or other considerations;
d. Whether any sex-related eligibility criteria can meet the
standard set out in the proposed regulation when applied to students in
earlier grades, and, if so, the type of criteria that may meet the
proposed standard for those grades;
e. How a recipient can minimize harms to students whose eligibility
to participate on a male or female athletic team consistent with their
gender identity is limited or denied by the recipient's adoption or
application of sex-related criteria; and
f. Whether regulatory text in addition to the text in the proposed
regulation is needed to provide recipients with sufficient clarity on
how to comply with Title IX's prohibition on sex discrimination,
including gender identity discrimination, in the context of male and
female athletic teams, consistent with the principles and concerns
identified in the discussion of proposed Sec. 106.41(b)(2).
Regulatory Impact Analysis (RIA)
Under Executive Order 12866,\12\ the Office of Management and
Budget (OMB) must determine whether this regulatory action is
``significant'' and, therefore, subject to the requirements of the
Executive order and subject to review by OMB. Section 3(f) of Executive
Order 12866 defines a ``significant regulatory action'' as an action
likely to result in a rule that may--
---------------------------------------------------------------------------
\12\ Executive Order on Regulatory Planning and Review, Exec.
Order No. 12866, 58 FR 51735 (Oct. 4, 1993).
---------------------------------------------------------------------------
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This proposed action is ``significant'' and, therefore, subject to
review by OMB under section 3(f)(4) of Executive Order 12866. The
Department has assessed the potential costs and benefits, both
quantitative and qualitative, of this proposed regulatory action and
has determined that the benefits would justify the costs.
The Department has also reviewed this proposed regulation under
Executive Order 13563,\13\ which supplements and explicitly reaffirms
the principles, structures, and definitions governing regulatory review
established in Executive Order 12866. To the extent permitted by law,
Executive Order 13563 requires that an agency--
---------------------------------------------------------------------------
\13\ Executive Order on Improving Regulation and Regulatory
Review, Exec. Order No. 13563, 76 FR 3821 (Jan. 18, 2011), <a href="https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf">https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf</a>.
---------------------------------------------------------------------------
(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
Pursuant to Executive Order 13563, the Department believes that the
benefits of this proposed regulation justify its costs. In choosing
among alternative regulatory approaches, the Department selected the
approach that maximizes net benefits. Based on the analysis that
follows, the Department believes that the proposed regulation is
consistent with the principles in Executive Order 13563.
The Department also has preliminarily determined that this
regulatory action would not unduly interfere with State, local, or
Tribal governments in the exercise of their governmental functions.
This RIA discusses the need for regulatory action, the potential
costs and benefits, assumptions, limitations, and data sources, as well
as regulatory alternatives considered.
1. Need for Regulatory Action
In 2021, the President directed the Department in both Executive
Order 13988 \14\ and Executive Order 14021 \15\ to review its current
regulations implementing Title IX for consistency with Title IX's
statutory prohibition on sex discrimination by a recipient of Federal
financial assistance in its education program or activity. Consistent
with those Executive orders, the Department reviewed the current
regulations based on Federal case law, its experience in enforcement,
and feedback received by OCR from stakeholders, including during the
June 2021 Title IX Public Hearing and listening sessions. Over 280
students, parents, teachers, faculty members, school staff,
administrators, and other members of the public provided live comments
during the June 2021 Title IX Public Hearing, and OCR also received
over 30,000 written comments in connection with the hearing. In
[[Page 22879]]
addition, OCR conducted listening sessions with stakeholders expressing
a variety of views, including individuals and organizations focused on
Title IX and athletics. Among these stakeholders were athletic
associations; student-athletes; parents; organizations representing
elementary schools, secondary schools, and postsecondary institutions
(or institutions of higher education (IHEs)); organizations
representing teachers, administrators, parents, and current and former
student-athletes; attorneys representing students and schools; State
officials; Title IX Coordinators and other school administrators; and
individuals who provide Title IX training to schools.
---------------------------------------------------------------------------
\14\ Executive Order on Preventing and Combating Discrimination
on the Basis of Gender Identity or Sexual Orientation, Exec. Order
No. 13988, 86 FR 7023 (Jan. 25, 2021).
\15\ Executive Order on Guaranteeing an Educational Environment
Free from Discrimination on the Basis of Sex, Including Sexual
Orientation and Gender Identity, Exec. Order No. 14021, 86 FR 13803
(Mar. 11, 2021).
---------------------------------------------------------------------------
Based on this review, the Department proposes amending its
regulations to set out a standard that would govern a recipient's
adoption or application of sex-related criteria that would limit or
deny a student's eligibility to participate on a male or female
athletic team consistent with their gender identity. The Department
received feedback from many stakeholders during the June 2021 Title IX
Public Hearing and listening sessions and through correspondence asking
the Department to clarify Title IX's application to students'
eligibility to participate on male or female athletic teams and urging
adoption of a variety of positions.
The Department proposes amending its Title IX regulations to
address stakeholder concerns and anticipates that the proposed
regulation would result in many benefits to recipients, students,
employees, and others, including by providing clarity to help ensure
compliance with Title IX's nondiscrimination requirement by recipients
that seek to adopt or apply sex-related criteria to determine student
eligibility to participate on male or female teams consistent with
their gender identity.
2. Discussion of Costs, Benefits, and Transfers
The Department has analyzed the costs and benefits of complying
with the proposed regulation. Although many of the associated costs and
benefits are not readily quantifiable, the Department believes that the
benefits derived from the proposed regulation would outweigh the
associated costs. The Department acknowledges the interest of some
stakeholders in preserving certain recipients' current athletic-team
policies and procedures regarding sex-related eligibility criteria and
in avoiding potential additional costs to comply with the proposed
regulation. However, the Department believes the current regulations
are not sufficiently clear to ensure Title IX's nondiscrimination
requirement is fulfilled if a recipient adopts or applies sex-related
criteria that would limit or deny students' eligibility to participate
on male or female athletic teams consistent with their gender identity.
The Department expects that a primary benefit of the proposed
regulation would be to provide greater clarity to recipients and other
stakeholders about the standard that a recipient must meet under Title
IX if it adopts or applies sex-related criteria that would limit or
deny a student's eligibility to participate on a male or female
athletic team consistent with their gender identity and, as a result,
to protect students' equal opportunity to participate on male and
female teams consistent with Title IX.
Title IX applies to approximately 18,000 local education agencies
(LEAs) and over 6,000 IHEs. Due to the number of affected entities, the
variation in likely responses, and the limited information available
about current practices, the Department is not able to precisely
estimate the likely costs, benefits, and other effects of the proposed
regulation. The Department specifically invites public comment on data
sources that would provide additional information on the issues that
are the subject of this Athletics NPRM, information regarding the
number of recipients operating male or female teams in intramural or
club sports, and time estimates for the activities described in the
Developing the Model (Section 2.B.2) discussion of the RIA,
disaggregated by type of recipient. Despite these limitations and based
on the best available evidence as discussed below, the Department
estimates that this proposed regulation would result in a net cost to
recipients of between $23.4 million to $24.4 million over 10 years.
The assumptions, data, methodology, and other relevant materials,
as applicable, on which the Department relied in developing its
estimates are described throughout this RIA.
2.A. Benefits of the Proposed Regulation
The Department believes that the proposed regulation would provide
numerous important benefits but also recognizes that it is not able to
quantify these benefits at this time. Despite the lack of quantitative
data available, however, it is the Department's current view that the
benefits are substantial and far outweigh the estimated costs of the
proposed regulation.
In particular, the Department's current view is that the proposed
regulation would benefit educational institutions and their students
and applicants for admission by providing greater clarity about the
standard a recipient must meet if it adopts or applies sex-related
criteria that would limit or deny a student's eligibility to
participate on a male or female athletic team consistent with their
gender identity. The Department expects that the clarity provided by
the proposed regulation would reduce the likelihood of sex
discrimination in students' opportunities to participate on male or
female teams offered by a recipient. By reducing the sex discrimination
resulting from confusion surrounding the permissibility of sex-related
eligibility criteria, it is the Department's view that the proposed
regulation would produce a demonstrable benefit for educational
institutions and their students. The Department anticipates these
benefits would be realized by helping protect students' equal
opportunity to participate on male and female teams consistent with
Title IX, along with the associated health and other benefits to
students who are able to participate as a result of the proposed
regulation's clarity on Title IX's requirements. The Department further
anticipates that the proposed regulation would benefit recipients by
helping recipients understand their obligations, thereby supporting
their efforts to provide equal athletic opportunity regardless of sex
in their athletic programs, as Title IX requires.
Youth participation in athletics is associated with many physical,
emotional, academic, and interpersonal benefits for students, including
increased cognitive performance and creativity, improved educational
and occupational skills, higher academic performance and likelihood of
graduation from a 4-year college, improved mental health, and improved
cardiovascular and muscle fitness, as well as reduced risk of cancer
and diabetes, and has the potential to help students develop traits
that benefit them in school and throughout life, including teamwork,
discipline, resilience, leadership, confidence, social skills, and
physical fitness. See President's Council on Sports, Fitness &
Nutrition Sci. Bd., Benefits of Youth Sports (Sept. 17, 2020), <a href="https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf">https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf</a>.
There is also evidence suggesting that allowing transgender
children to socially transition (i.e., present themselves in everyday
life consistent with their gender identity) is associated with positive
mental health outcomes for those children. Kristina Olson et al.,
Mental Health of Transgender Children Who Are Supported in Their
Identities,
[[Page 22880]]
137 Pediatrics 3 (March 2016), <a href="https://publications.aap.org/pediatrics/article/137/3/e20153223/81409/Mental-Health-of-Transgender-Children-Who-Are">https://publications.aap.org/pediatrics/article/137/3/e20153223/81409/Mental-Health-of-Transgender-Children-Who-Are</a>. Ensuring that transgender students have the opportunity to
participate on male or female teams consistent with their gender
identity can be part of a transgender student's social transition and
is thus a crucial benefit to those students' health and well-being.
In addition, though the data quantifying the economic impacts of
sex discrimination are limited, the Department recognizes that sex
discrimination causes harm to students, including when such
discrimination results in students being limited in or excluded from
the opportunity to participate in athletics consistent with their
gender identity and thereby effectively deprived of the many positive
benefits of participation in team sports. See, e.g., Hecox, 479 F.
Supp. 3d at 987 (finding State law caused harm in that it would deny a
transgender woman the opportunity to participate on women's team and
subject her to the State's moral disapproval of her identity); Utah
High Sch. Activities Ass'n, 2022 WL 3907182, at *9 (finding immediate
harm caused by State law banning transgender girls from participating
in sports consistent with their gender identity).
2.B. Costs of the Proposed Regulation
The analysis below reviews the Department's data sources, describes
the model used for estimating the likely costs associated with the
proposed regulation, and sets out those estimated costs. The costs
described below are not intended to reflect the exact burden on any
given recipient, but instead intended to reflect an average burden
across all recipients. Specific entities may experience higher or lower
costs than those estimated below as a result of this proposed
regulation. Due to limited quantitative data, the Department emphasizes
that the monetary estimates reflect only the likely costs of this
proposed regulatory action and do not seek to quantify, in monetary
terms, the costs of sex discrimination. There are limited data
quantifying the economic impacts of sex discrimination in athletics,
and the Department invites comment on suggestions for any data sources
that would provide additional information.
2.B.1. Establishing a Baseline
As an initial matter, the analysis that follows separately
discusses the effects of the proposed regulation on elementary and
secondary education (ESE) entities and postsecondary education or IHE
entities. For purposes of this analysis, ESE and IHE entities include
educational institutions as well as other entities, such as national
athletic associations and sport governing bodies, that are involved in
the adoption or application of sex-related eligibility criteria for
students participating on a recipient's male or female athletic teams.
The Department analyzes the costs associated with the proposed
regulation separately for ESE and IHE entities and views this as the
best approach for cost analysis because ESE and IHE entities are
organized and operate differently, and the costs the proposed
regulation would impose on recipients are distinct at these levels, as
explained below.
Athletic competition and its governance vary between the ESE and
IHE contexts, with most ESE interscholastic competition governed by
State-specific athletic associations, while much intercollegiate
competition in the United States occurs under the auspices of only a
handful of athletic associations, the largest of which is the NCAA.
Under the proposed regulation, a recipient would be permitted to adopt
or apply sex-related eligibility criteria that would limit or deny a
student's eligibility to participate on a male or female athletic team
consistent with their gender identity if those criteria, for each
sport, level of competition, and grade or education level (i) are
substantially related to the achievement of an important educational
objective, and (ii) minimize harms to students whose opportunity to
participate on a male or female team consistent with their gender
identity would be limited or denied. The Department anticipates that
the costs associated with implementing the proposed regulation--such as
reviewing, adopting, and implementing policies, and training staff--
would best align according to whether an entity is an ESE or IHE
entity.
With respect to ESE entities, the Department anticipates that the
same entities (e.g., LEAs, State education associations, and State
athletic associations) would generally review and respond to the
regulation for elementary school, middle school, and high school, and,
in doing so, would likely address the full range of affected students
in any subsequent review or revision of policies. For this reason, the
Department projects costs for ESE entities in one category, even though
an entity may opt to adopt or apply different eligibility criteria for
sex-separate teams in high school, for example, than for students in
elementary school and middle school. To separate these entities into
different categories for the purpose of projecting costs would unduly
confound estimates. For example, there are not separate burdens
associated with the time and effort an LEA athletic director may spend
reading and understanding the regulation's application to all students
in the LEA. Instead, the athletic director would likely read and
understand the regulation in its entirety. That LEA athletic director
would then develop policies and practices that comply with the
regulation, possibly differentiating sex-related eligibility criteria
for male and female teams for different sports, levels of competition,
and grades or education levels, while ensuring that the criteria
minimize harms to students. Similarly, the Department anticipates that
a State athletic association with membership comprised of LEAs that
serve students in grades pre-K through 12 would review the regulation
as a whole and set policies for its member entities' participation in
interscholastic competition that align with the regulatory
requirements.
In light of these factors, the Department believes it is reasonable
to project costs by dividing the cost analyses between ESE and IHE
entities. The Department notes that, in light of how athletic
competition is structured at both the ESE and IHE levels, some entities
that would not otherwise be subject to the proposed regulation may
nonetheless be affected by its promulgation as a result of actions by
third parties. As noted above, most athletic competition is organized
by State athletic associations at the ESE level or under the auspices
of the NCAA or similar national athletic associations at the IHE level.
It is possible that a State athletic association or relevant governing
body would require all of its members, including a private high school,
to comply with eligibility and participation criteria that the
association sets. The Department thus acknowledges that the
implementation of the proposed regulation by these athletic
associations may indirectly affect entities that are not directly
subject to the proposed regulation. The Department does not currently
have sufficient data to estimate the likelihood of these effects or
their impact and seeks specific public comment on these issues.
Athletic Competition in ESE Entities
In the 2020-2021 school year, according to data from the National
Center on Education Statistics, there were 18,259 LEAs in the United
States with either a nonzero enrollment or at
[[Page 22881]]
least one operational school.\16\ Of the 18,083 LEAs for which the
Department has data on the relevant variables,\17\ 4,383 do not serve
students in grades 9 through 12. Many of these are single school LEAs,
such as charter schools. The Department assumes that these LEAs will
continue to serve only students in elementary or middle school moving
forward. Of the remaining LEAs, 1,268 only serve students in grades 9
through 12. Most LEAs (11,661) serve students in pre-kindergarten or
kindergarten through 12th grade.
---------------------------------------------------------------------------
\16\ In the 2020-2021 school year, 91 ESE entities had nonzero
enrollments and zero operational schools. For purposes of this
analysis, the Department assumes these entities operate like other
LEAs, although several appear to be regional education services
agencies or intermediate school districts where the named entity
itself, while enrolling students, may not directly provide education
to students. In that same year, 531 ESE entities had operational
schools either with zero enrollment or no enrollment data available.
A number of these entities are charter schools that may have been in
the process of opening or closing, and it is unclear whether they
will serve students in future years. Inclusion of these two groups
of entities will likely result in an over-estimate of the potential
costs of the proposed regulation.
\17\ This total excludes one LEA providing only adult education
services and 68 LEAs serving only ungraded students.
---------------------------------------------------------------------------
The Department generally assumes that, to the extent LEAs offer
separate male and female intramural athletic teams, they generally
establish eligibility criteria for participation on those teams at the
LEA level even if the policies differ by sport, level of competition,
or grade or education level.
For interscholastic athletic competition, eligibility is generally
governed by State-specific athletic associations. The Department
reviewed existing, publicly available State athletic associations'
policies on sex-related eligibility criteria for students'
participation on male or female teams for each of the 50 States, Puerto
Rico, and the District of Columbia.\18\ This review was conducted for
the purpose of informing this Athletics NPRM; the Department has not
evaluated these policies to determine whether they would comply with
the proposed regulation or current statutory or regulatory Title IX
requirements. The Department observed that State athletic association
policies range from those that allow all students to participate on
male or female athletic teams consistent with their gender identity to
those that categorically exclude transgender students from
participating on male or female athletic teams consistent with their
gender identity. The Department further observed additional variation
among State athletic association policies that establish some criteria
for determining when a student is eligible to participate on a specific
male or female athletic team consistent with their gender identity. For
example:
---------------------------------------------------------------------------
\18\ The Department notes that State athletic association
policies on this topic continue to be updated.
---------------------------------------------------------------------------
<bullet> Approximately 20 percent of State athletic association
policies currently allow students to participate on male or female
athletic teams consistent with their gender identity without
establishing additional criteria or eligibility requirements beyond
those that apply to all student-athletes, such as attendance or
academic achievement.
<bullet> Approximately 25 percent of State athletic associations
generally permit participation consistent with students' gender
identity and have established some criteria or eligibility requirements
for participation, such as various types of documentation (examples
include a written statement from the student, their parent or guardian,
health care or treatment provider, a community member or teacher
identifying the student's consistent gender identity).
<bullet> Approximately 20 percent of State athletic associations
require students who wish to participate consistent with their gender
identity to meet additional criteria prior to participation. Of those
athletic associations that impose additional requirements, the vast
majority (approximately three-quarters of this group) adopted different
policies for male and female teams--many of which require transgender
girls to satisfy additional criteria prior to participating on a female
team consistent with their gender identity.
<bullet> The remaining State athletic associations have adopted a
range of policies imposing criteria that severely limit most or all
transgender students from participating on male or female athletic
teams consistent with their gender identity.
In addition to variations among State athletic associations
regarding the criteria for participation on male or female athletic
teams, the Department observed variations among State athletic
associations regarding the eligibility decision process for
participation on male or female athletic teams. In nearly half of
States, athletic association policies leave decisions regarding
eligibility to the school or to the school and the student-athlete. In
approximately 30 percent of States, the athletic association is
involved in determining eligibility, either alone or in conjunction
with the school.
In general, the Department found that State athletic association
policies are silent on the issue of students in elementary school. With
respect to middle school, the Department found that about half of State
athletic associations regulate athletic competition at that level, but
only approximately 35 percent of State athletic associations have
policies addressing those students' participation in athletic
competition consistent with their gender identity. The remaining State
athletic associations are either silent on this issue or explicitly
defer to the school or LEA for policies affecting students in middle
school.
The Department notes that most States do not have laws prescribing
sex-related eligibility criteria for recipients' male and female
athletic teams. The Department also notes that at least two States have
enacted laws or regulations requiring LEAs to allow ESE students to
participate in athletics consistent with their gender identity. Twenty
States have enacted laws that, to varying degrees, explicitly require
that student-athletes participate on male or female athletic teams
consistent with their sex assigned at birth. The Department anticipates
athletic associations in some States may adopt policies that align with
State law before the Department promulgates its final regulation. The
Department further notes that some State laws are currently subject to
litigation that may affect their continued applicability. See, e.g.,
B.P.J., No. 23-1078 (4th Cir. Feb. 22, 2023) (staying the district
court's dissolution of preliminary injunction barring enforcement
against plaintiff of West Virginia law requiring students to
participate on athletic teams consistent with ``biological sex''
pending appeal); Hecox, 479 F. Supp. 3d at 978-85 (granting preliminary
injunction barring implementation of Idaho law that excludes
transgender girls and women from participating in athletics consistent
with their gender identity based on strong likelihood the law violates
the Equal Protection Clause); Barrett v. State, Cause No. DV-21-581B
(Mont. 18th Jud. Dist. Sept. 14, 2022) (finding Montana law that
restricts participation of transgender students in public institutions'
athletic programs violates State constitution by infringing on public
university's ``authority to oversee student groups and activities''),
appeal docketed, No. DA 22-0586 (Mont. Oct. 13, 2022); Utah High Sch.
Activities Ass'n, 2022 WL 3907182, at *1, *9 (granting preliminary
injunction to enjoin enforcement of Utah law that ``effectively bans
transgender girls from competing in pre-college school-related girls
sports,'' based on strong likelihood the law violates the State
constitution).
In the absence of the clarity that the proposed regulation would
provide, the Department assumes that States, LEAs,
[[Page 22882]]
schools, and State athletic associations would continue to implement
varying policies for students in elementary and secondary education,
with a small subset adopting criteria that would not limit or deny the
participation of transgender students on male or female athletic teams
consistent with their gender identity and a small subset adopting
criteria that would substantially limit or deny transgender students
from participating on male or female athletic teams consistent with
their gender identity. The Department also assumes that almost all of
the remaining States (approximately half) would have policies that
establish minimal criteria for the participation of transgender
students in high school athletics consistent with their gender identity
(e.g., a written statement from the student or someone on their behalf
confirming the student's consistent gender identity). The Department
seeks specific public comment on the reasonableness of this assumption.
Athletic Competition in IHE Entities
In the 2020-2021 school year, according to data from the National
Center on Education Statistics, there were 6,045 IHEs participating in
programs under Title IV of the Higher Education Act of 1965, 20 U.S.C.
1001 et seq. (1965), such as Loans, Federal Work Study, and Pell
grants. Except as described above, the Department assumes this
represents the universe of potentially impacted IHE entities. Of those,
1,689 IHEs offered an educational program that was less than 2 years in
duration (i.e., below the associate's level), 1,602 offered a program
of at least 2 but less than 4 years, and 2,754 offered a program of 4
or more years. In total, these institutions enrolled approximately 14.8
million full-time equivalent (FTE) students in fall 2020. Approximately
1 percent of students attended less-than-2-year IHEs, approximately 20
percent attended 2- to 4-year institutions, and approximately 79
percent attended at least 4-year institutions (hereinafter referred to
as ``4-year institutions'').
Table 1--Institutions of Higher Education by Level of Institutions and Enrollment, Fall 2020
----------------------------------------------------------------------------------------------------------------
% of total
Level of institution Number of Total fall FTE fall FTE Average fall
entities enrollment enrollment FTE enrollment
----------------------------------------------------------------------------------------------------------------
Less-than-2-Year................................ 1,689 228,448 1 138
2- to 4-Year.................................... 1,602 2,905,048 20 1,843
4 or more Years................................. 2,754 11,617,659 79 4,317
---------------------------------------------------------------
Total....................................... 6,045 14,751,155 100 2,490
----------------------------------------------------------------------------------------------------------------
In general, the Department assumes that less-than-2-year
institutions, which include many trade and technical programs (e.g.,
cosmetology, HVAC repair, dental assistant) do not engage in
interscholastic athletic competition or operate intramural athletic
programs. The Department seeks specific public comment on the extent to
which less-than-2-year IHEs would be impacted by the proposed
regulation.
The Department generally assumes that approximately 50 percent of
2- to 4-year IHEs operate intramural teams, some or all of which are
male or female teams, and that the IHEs establish policies governing
those programs.
For intercollegiate athletic competition, eligibility is generally
governed by national athletic associations, as described above. For
purposes of this analysis, the Department assumes that each athletic
association independently adopts and applies criteria to determine the
eligibility of students to participate on male or female teams
consistent with their gender identity. The Department annually collects
data on whether IHEs are members of such associations. Of the 3,989
IHEs for which the Department has data,\19\ 1,986 were members of a
national athletic association in the 2020-2021 school year. Of those
IHEs, 1,526 were 4-year institutions and 460 were 2- to 4-year
institutions.
---------------------------------------------------------------------------
\19\ Data are not available for 312 2- to 4-year institutions
and 55 4-year institutions.
Table 2--Selected Characteristics by National Athletic Association Membership and Level of Institution, Fall
2020
----------------------------------------------------------------------------------------------------------------
Member of National Athletic Not a member of National
Association Athletic Association
Level of institution ---------------------------------------------------------------
Average Average
Number enrollment Number enrollment
----------------------------------------------------------------------------------------------------------------
2- to 4-Year IHE................................ 460 3,223 830 1,641
4-Year IHE...................................... 1,526 6,440 1,173 1,542
---------------------------------------------------------------
Total....................................... 1,986 5,695 2,003 1,583
----------------------------------------------------------------------------------------------------------------
[[Page 22883]]
Table 3--Percentage of IHEs That are Members of National Athletic Associations by Level and Control of
Institution, Fall 2020
----------------------------------------------------------------------------------------------------------------
2- to 4-Year 4-Year IHEs
IHEs (%) (%) All levels (%)
----------------------------------------------------------------------------------------------------------------
Public.......................................................... 55 77 65
Private Non-Profit.............................................. 7 57 54
Private For Profit.............................................. 0 7 3
All Sectors..................................................... 36 43 50
----------------------------------------------------------------------------------------------------------------
As part of its annual data collection, the Department gathers
information on membership in five specific national athletic
associations (referred to below as the ``five named athletic
associations''). IHEs reported membership in the five named athletic
associations for the 2020-2021 school year as follows:
<bullet> The National Collegiate Athletic Association (NCAA)--1,108
IHEs;
<bullet> The National Association of Intercollegiate Athletics
(NAIA)--250 IHEs;
<bullet> The National Junior College Athletic Administration
(NJCAA)--498 IHEs;
<bullet> The National Small College Athletic Association (NSCAA)--
43 IHEs; and
<bullet> The National Christian College Athletic Association
(NCCAA)--89 IHEs.
Also as part of its data collection, the Department permits IHEs to
report membership in national athletic associations other than the five
named athletic associations. For the 2020-2021 school year, 138 IHEs
reported that they were members of an athletic association other than
the five named athletic associations. The Department does not have data
on the specific athletic associations to which these IHEs belong. For
purposes of this analysis, the Department assumes two additional
national athletic associations, beyond the five named athletic
associations, would be required to review policies pursuant to the
proposed regulation if it were to be promulgated. The Department seeks
specific public comment on this estimate.
As explained in the discussion of the proposed regulation, in
January 2022, the NCAA replaced its longtime rules for transgender
student-athlete participation and adopted a sport-by-sport approach
that defers to the eligibility criteria set by national governing
bodies--e.g., USA Swimming, USA Gymnastics--subject to review by the
NCAA's Committee on Competitive Safeguards and Medical Aspects of
Sports. Some of these national groups look to international
organizations such as FINA and International Gymnastics Federation
(FIG), which set criteria for participation in international
competitions involving elite athletes. See, e.g., USA Swimming, Athlete
Inclusion, Competitive Equity, and Eligibility Policy at 4-5 (Mar. 10,
2023), <a href="https://www.usaswimming.org/docs/default-source/governance/governance-lsc-website/rules_policies/usa-swimming-policy-19.pdf">https://www.usaswimming.org/docs/default-source/governance/governance-lsc-website/rules_policies/usa-swimming-policy-19.pdf</a>
(noting that athletes who wish to compete in a World Aquatics
Competition must meet the eligibility criteria in the World Aquatics
Policy, which ``are potentially more difficult to satisfy than'' the
USA Swimming policy); USA Gymnastics, Transgender & Non-Binary Athlete
Inclusion Policy at 3 (Apr. 2022), <a href="https://www.usagym.org/PDFs/About%20USA%20Gymnastics/transgender_policy.pdf">https://www.usagym.org/PDFs/About%20USA%20Gymnastics/transgender_policy.pdf</a> (noting that elite
athletes who are transgender must satisfy requirements for
participation set by the FIG and IOC). Taking these elite international
competition criteria into account, some national governing bodies have
developed eligibility criteria that differ based on levels of
competition, with certain criteria applying only to athletes who seek
to compete internationally or in nationally recognized record-setting
events. In addition, eligibility criteria vary by sport. Some
international governing bodies permit transgender women to compete at
elite levels if they satisfy specific testosterone suppression
criteria. See, e.g., Union Cycliste Internationale, UCI Eligibility
Regulations. Others exclude from elite competition transgender women
who have experienced any aspect of male puberty. See, e.g., FINA Policy
on Eligibility. Some sport governing bodies have not yet updated their
policies or their criteria for determining transgender students'
participation remain under review. For example, World Lacrosse
announced it is reviewing and revising its eligibility criteria for
everyone involved in the sport, including transgender athletes, to
create a policy that ensures that ``everyone has a right to safely
participate in sport while maintaining fair competition.'' World
Lacrosse, World Lacrosse Forms Partnership with National Center for
Transgender Equality to Create Trans-Inclusive Participation Policy
(June 9, 2022), <a href="https://worldlacrosse.sport/article/world-lacrosse-forms-partnership-with-national-center-for-transgender-equality/">https://worldlacrosse.sport/article/world-lacrosse-forms-partnership-with-national-center-for-transgender-equality/</a>. The
Department generally assumes that national and international governing
bodies will continue to revise their policies in the coming years and
that most or all will seek to develop policies that, in their view,
maximize athletes' participation consistent with gender identity while
ensuring fair and safe competition.
2.B.2. Developing the Model
Athletic Competition in ESE Entities
In general, the Department assumes that only LEAs that offer male
and female athletic teams would be directly affected by the proposed
regulation. As part of the 2017-2018 Civil Rights Data Collection,
schools in approximately 60 percent of LEAs submitting responses
indicated that they operated one or more male or female athletic teams.
For purposes of this analysis, the Department assumes approximately 60
percent of all LEAs offer sex-separate athletic teams, for an estimated
10,849 affected LEAs.
As noted above, although recipient LEAs would be subject to the
proposed regulation, they generally do not independently establish
requirements for participation in interscholastic competition. Instead,
LEAs typically participate as members in State athletic associations,
which generally establish these requirements. Regardless, the
Department notes that recipient LEAs must comply with Title IX and the
obligation to do so is not alleviated by any contrary athletic
association rule. See 34 CFR 106.6(c). Because of this obligation, the
Department believes that many LEAs, as members of State athletic
associations, would communicate with their State's athletic association
about the Department's proposed regulation. As a result, the Department
believes it is reasonable to assume that State athletic associations
would review and
[[Page 22884]]
consider revising their policies on this issue.
Also as noted above, the Department has not evaluated existing
State athletic association policies governing interscholastic athletics
to determine whether they would comply with the proposed regulation.
However, the Department assumes that a range of policies would comply
with the proposed regulation. On the other hand, a State athletic
association policy with restrictive sex-related eligibility criteria
that complies with the proposed regulation in the context of a
particular sport (e.g., a sport with significant physical contact) may
not comply in the context of a different sport (e.g., one with little
or no physical contact) if, for example, a recipient cannot demonstrate
how its sex-related criteria are substantially related to achievement
of an important educational objective in the context of that particular
sport and minimize harms to students whose opportunity to participate
on a male or female team consistent with their gender identity would be
limited or denied by the criteria. As a result, the Department
anticipates that all LEAs and all athletic associations will undertake
at least some level of review of their existing policies or the
policies of associations to which they belong. The Department does not
assume the adoption, elimination, or modification of any specific
policy.
The Department believes that the proposed regulation would render
State athletic associations that currently prevent transgender students
from participating on male or female teams consistent with their gender
identity more likely than others to conduct intensive reviews of their
existing policies. The Department anticipates this result because
athletic association policies that would limit or deny students'
eligibility to participate on male or female teams consistent with
their gender identity would be more likely to raise questions from
member LEAs, student-athletes, and families regarding compliance with
Title IX. The Department assumes many of these State athletic
associations, or their member LEAs, would engage in some revision to
ensure their policies comply with the regulation. By contrast, the
Department generally assumes that the 20 percent of State athletic
associations that currently allow students to participate on male or
female athletic teams consistent with their gender identity would be
less likely to engage in intensive review of their policies and
implement revisions than other States. For purposes of this analysis,
the Department assumes the following:
<bullet> All LEAs, including those that do not offer athletic
teams, will engage in an initial review of the rule;
<bullet> In 20 percent of States, the State athletic association
and LEAs offering athletic teams whose policies already permit students
to participate on male or female teams consistent with their gender
identity will undertake a review but would be unlikely to revise their
existing policies;
<bullet> In 20 percent of States, the State athletic association
and LEAs offering athletic teams whose policies impose requirements
that enable most or all transgender students to participate consistent
with their gender identity will undertake a more intensive review but
would also be unlikely to revise their existing policies; and
<bullet> In 60 percent of States, the State athletic association
and LEAs offering athletic teams whose policies prohibit or
significantly restrict participation by transgender students consistent
with their gender identity will undertake a more intensive review and
will revise their existing policies.
The Department anticipates that the 60 percent of State athletic
associations and LEAs in this final category will experience burdens
associated with revising their policies for a variety of reasons. Some
of t
[…truncated; see source link]Indexed from Federal Register on April 13, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.