On December 26, 2024, the United States Department of Education (the “Department”) published a formal notice withdrawing its notice of proposed rulemaking (“NPRM”), 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.
The Department’s formal notice can be found here, and the NPRM can be found here.
Background
On April 13, 2023, the Department published the NPRM in the Federal Register.
The purpose of the NPRM was 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.”
Additionally, the NPRM intended to clarify “how [schools and other recipients of federal financial assistance] can ensure that students have equal opportunity to participate on male and female athletic teams as required by Title IX.”
The NPRM proposed that if a school “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.”
Withdrawal
The Department indicated that it received, reviewed, and considered more than one hundred fifty thousand (150,000) public comments in response to the NPRM. While some comments expressed support of the NPRM, others opposed it in its entirety. The Department also acknowledged the several pending lawsuits related to the application of Title IX. As such, the NRPM was withdrawn as of December 20, 2024.
The Department further noted that if it receives complaints of discrimination related to this subject matter, it will continue to apply the legal standards found under 34 CFR 106.41 and 44 FR 71413.
Bottom Line For Schools
The Department’s withdrawal of the NPRM does not change our guidance/recommendations regarding discrimination against trans-sexual students or athletics in general. Protections against discrimination remain under the Pennsylvania Human Relations Act and case law. Inclusion of trans-sexual athletes remains a local issue in Pennsylvania.
