Key Takeaways From The New Proposed Rulemaking On Transgender Student Athletic Participation

• Jurisdiction: United States,Federal
• Law Firm: Jenner & Block
• Subject Matter: Employment and HR, Consumer Protection, Media, Telecoms, IT, Entertainment, Discrimination, Disability & Sexual Harassment, Education, Sport
• Author: Mr Ishan K. Bhabha, Lauren J. Hartz and Nicole Allicock
• Published date: 28 April 2023

Earlier this month, the Department of Education released an "Athletics Notice of Proposed Rulemaking," which would prohibit federal funding recipients from categorically excluding transgender students from the athletics teams that align with their gender identities. The proposed regulation is a response to laws that have been passed in 21 states¹banning transgender students, often specifically transgender women and girls, from participating in teams that align with their gender identities. Many of these laws apply not just to secondary schools but also at the collegiate level.

The notice came the same day that the US Supreme Court declined to vacate the Fourth Circuit's stay of West Virginia's transgender athletics ban, meaning the state will be unable to enforce the ban until that challenge is resolved.²Though the proposed rule seeks to provide clarity to schools as to their obligations under Title IX, any final rule is likely to be challenged in the courts and could be rescinded and/or replaced by a future administration.

1. The Proposed Regulation

The proposed regulation moves away from a one-size-fits-all transgender student athletics ban. It envisions a more flexible regime under which the permissibility of a ban would depend on the sport, age level, and competitiveness of the particular team. Specifically, it would require sex-related criteria that funding recipients adopt or apply to limit or deny a student's eligibility to participate on an athletic team consistent with their gender identity to: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied. It would not prohibit a recipient's use of sex-related criteria altogether.

The Department predicated this proposed regulation in part on recognition that participation in team sports has been associated with many valuable physical, emotional, academic, and interpersonal benefits for students. In the Department's press release, it notes that this proposed standard would usually mean that elementary school-aged children could participate on teams that align with their gender identity because the teams are generally more about teaching young children valuable skills. By contrast, considerations may be different (and bans more defensible) for competitive collegiate athletics teams, where the teams are seeking competitive success...