In advance of the long-predicted May 2023 issuance of new Title IX regulations, the U.S. Department of Education issued a proposed Title IX rule on April 6th that is designed to expand the meaning of sexual discrimination to include gender identity.
This change would prevent schools and colleges from barring transgender athletes from competing on female sports teams.
The new rule would allow some restrictions on transgender athletes but not a full ban altogether. Specifically, the rule provides that no school or college that receives federal funding would be allowed to impose “one size fits all” policies that categorically bans transgender students from playing on sports teams consistent with their gender identity. Such policies would be considered a violation of Title IX.
The proposed rule comes the same day that the United States Supreme Court refused to reinstate a West Virginia law that would bar transgender athletes from playing on female sports teams from middle school through college, therefore allowing the plaintiff, a trans female name named Becky to continue to play sports consistent with her gender identity.
The proposed rule and the court ruling comes as more than 470 anti LGBTQ plus bills have been introduced in statehouses across the country designed to limit transgender rights including the banning of transgender athletes. Twenty states currently exclude transgender youth from playing on sports teams aligning with their gender identity.
The proposed rule, which still faces a lengthy approval process, establishes that blanket bans like those approved in those twenty states would violate Title IX, the landmark gender equity legislation enacted in 1972.
The proposed rule would, however, allow or permit schools to still adopt policies that limit transgender students participation, particularly in more competitive high school and college sports. In theory, the new rule would allow schools room to develop policies that prohibit transgender athletes from playing on more competitive teams if those policies are designed to ensure fairness or prevent sports related injuries.
Under the federal rulemaking regulations, the public will have 30 days to provide comments on the rule before its implementation.
Bottom Line for Schools
Hopefully, the final rules on transgender athletes, along with the entire package of new regulations to be issued in May, will provide a clearer framework for developing eligibility criteria for student athletes.
If your school has questions about Title IX or the proposed change, please consult with your solicitor or a member of KingSpry’s Investigation and Compliance Team for assistance.