The U.S. Department of Education on Thursday released its long-awaited proposed Title IX protections for transgender student athletes. The proposed rule would prohibit districts and states from categorically banning transgender students' participation on athletic teams aligning with their gender identities. Doing so would be considered sex discrimination.
"Such bans fail to account for differences among students across grade and education levels," said the Education Department in a Thursday press release. "They also fail to account for different levels of competition — including no-cut teams that let all students participate — and different types of sports."
Instead, the proposed rule provides districts with criteria and considerations they should take into account when developing athletic team eligibility. These include:
- Difference in grade level: Elementary school students should generally be able to participate on sports teams consistent with their gender identity, because teams for younger students often focus on building teamwork, fitness and basic skills for students who are just learning about the sport rather than on competitive edge.
The department added it would be "particularly difficult for a school to justify excluding students immediately following elementary school from participating on teams consistent with their gender identity." Higher grades, on the other hand, may have different objectives like competition and athletic skill.
- Difference in competition: Schools in higher grades offer levels of competition varying from very competitive to "no cut" teams that allow for all students to join. These differences in competition would have to be taken into account when determining sex-related eligibility criteria that restrict transgender students from participating on teams consistent with their gender identities.
- Differences in types of sport: Schools considering sex-related eligibility criteria that would restrict transgender student participation would have to take into account the particular kinds of sports they would apply to.
In the rule, the department says that — in some cases — separating boys' and girls' sports teams while limiting participation of some transgender students may be permitted. That could be in high school, for example, when the criteria allow the school to achieve fairness in competition. That criteria limiting transgender student participation, however, would still have to fulfill other requirements, including minimizing harms as much as possible for transgender students.
In cases where schools decided to limit participation for students based on their gender identities, the department will look at why and how such sex-based criteria were imposed, said an Education Department official on Thursday.
The department said that, during the two years it took to develop the proposed rules, it heard "repeatedly that many schools, students, parents, and coaches face uncertainty about when and how transgender students can participate in school sports, particularly because some states have chosen to adopt new laws and policies on athletics participation that target transgender students."
The new proposals address this widening divide between how liberal and conservative-leaning districts approach transgender student inclusion in sports — one that has reached the courts in recent years for alleged sex discrimination.
On Thursday, the U.S. Supreme Court declined to allow West Virginia to enforce a law banning transgender athletes from participating on women’s sports teams.
Another high-profile case was brought by the families of four cisgender athletes in Connecticut who claimed transgender students are “displacing girls” on teams through an alleged competitive advantage. That case was originally decided in December in favor of transgender students Andraya Yearwood and Terry Miller, as well as the Connecticut Association of Schools and the Connecticut Athletic Conference, which were sued alongside them.
The U.S. Court of Appeals for the Second Circuit, in a rare move, decided in February to rehear that case.
Another case filed with the Education Department's Office for Civil Rights was brought against six Connecticut school districts and used by the Trump administration to issue an interpretation of policy against transgender student inclusion on athletic teams. One of Cardona's earliest moves as education secretary was to undo that interpretation, in line with his longstanding position that transgender inclusion does not constitute sex discrimination against cisgender individuals.
The new Title IX athletic proposals will influence how the OCR and courts, in addition to school districts, interpret sex discrimination on athletic teams in such cases.
The proposed athletic regulations were released just weeks ahead of the expected May release date for the broader Title IX final rule, proposals for which were already released separately last June. That broader rule is expected to include explicit protections for LGBTQ+ and pregnant students and employees for the first time.
The Education Department will release the Title IX athletic final rule following a 30-day public comment period. The exact timeline for the final release has not yet been made public. For comparison, the broader Title IX rule garnered over 210,500 comments and is expected to be released nearly a year after it was originally proposed in June 2022.
Both regulations are almost certainly going to find themselves in legal crosshairs, as they directly clash with state policies barring LGBTQ inclusion in K-12 school facilities and teams. Currently, at least 20 states have policies restricting transgender students from playing on teams aligning with their gender identities, according to the Movement Advancement Project, which tracks the issue.