by Mandi Moutray and Veronica Potter
On April 6, 2023, the Department of Education announced its proposed regulation under Title IX that would bring some clarity to the question of whether transgender students can be prohibited from participating on athletic teams that align with their gender identity.
This proposed regulation was long awaited – President Biden issued executive orders in March 2021 to ensure that students are guaranteed an educational environment free from discrimination on the basis of sex, including on the basis of gender identity, and directed the Department of Education to examine the existing Title IX regulations. The Department of Education then released proposed regulations related to addressing sex-based harassment under Title IX in June 2022, but those proposed regulations did not specifically address the question of transgender students’ eligibility for male or female athletic teams.
This issue has been at the forefront of public attention recently as courts and state legislatures across the country have been addressing transgender students’ rights. Recently, the Missouri House of Representatives passed a bill (HB 183) that would ban transgender students from competing on athletic teams consistent with their gender identity. Unlike the bill passed by the Missouri Senate last month (SB 39), the Missouri House’s version of the bill includes a penalty provision for public school districts that allow transgender students to participate on teams consistent with their gender identity. The United States Supreme Court also addressed the issue last month when it declined to immediately reinstate a West Virginia law barring transgender women and girls from participating on public school athletic teams consistent with their gender identity.
Proposed Title IX Regulation
The proposed regulation is only one sentence:
106.41(b)(2) – 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.
This proposed regulation would allow educational institutions to prohibit students from participating on athletic teams that align with the students’ gender identity – but only if those eligibility criteria meet the requirements of this rule. Specifically, the eligibility criteria must: 1) be substantially related to the achievement of an important educational objective, and 2) minimize harms to affected students. The Department of Education suggests that fairness in competition or prevention of sports-related injuries would qualify as important educational objectives, but that communicating disapproval of a student’s gender identity or administrative convenience would not.
Adopting an across-the-board policy allowing students to participate on athletic teams consistent with their gender identity would satisfy the proposed regulation, as there would not be any restrictions to trigger the requirements of the rule. However, under this proposed rule, institutions that seek to establish eligibility criteria that would exclude students from participating on teams that align with their gender identity would need to make an individualized determination for each sport, each level of competition and each grade/education level. This means that a blanket policy limiting all students in all grades and in all sports to participation on male and female athletic teams that match the student’s biological sex would not comply with the rule.
Considerations for K-12 Schools
Under its proposed regulations, the Department of Education expects that generally elementary school students and students participating at lower levels of competition (such as no-cut or junior varsity teams) would be allowed to participate on athletic teams consistent with their gender identity. However, in some cases, some school districts may be able to limit the participation of transgender students in competitive sports at the high school level, provided the requirements of the proposed rule are met and other state laws are followed.
The Department of Education also notes some athletic associations have already created criteria for transgender participation in certain sports. In Missouri, the Missouri State High School Activities Association (MSHSAA) allows transgender high school students to apply for approval to play on a team consistent with their gender identity. MSHSAA’s current policy allows transgender females who have completed one year of documented medical/hormone treatment and/or suppression to compete on high school girls’ athletic teams. In Illinois, the Illinois High School Association (IHSA)’s policy also requires transgender students to apply to participate on athletic teams consistent with their gender identity; however, the IHSA policy does not require specific medical documentation or hormone treatment from students. It is possible that athletic associations for public school districts may update their policies once this proposed regulation is finalized.
Considerations for Colleges and Universities
If an institution of higher education wishes to limit the participation of transgender student athletes on teams that align with their gender identities, it must consider each sport and each level separately and meet the requirements of achieving an important educational objective and minimizing harm to affected students. Even at the collegiate level, a blanket rule prohibiting transgender student participation in teams that align with their gender identity would not comply with the proposed.
Generally, it is unlikely that restrictions on intramural or club level sports would comply with the regulations. Restrictions on elite, competitive sports would be more likely to comply, as institutions may have greater interests in fairness in competition in these programs. Institutions should carefully consider each athletic program when determining eligibility criteria.
Many colleges and universities must also consider the policies of the National Collegiate Athletic Association. In January 2022, the NCAA announced an updated policy on transgender student athlete participation, which aligns the participation policy with the sport-by-sport approach taken by the Olympic movement. This policy was set to be implemented over several years. The sport-specific approach adopted by the NCAA aligns with the approach taken in the proposed regulations. However, when the proposed regulations are finalized and implemented, it is possible the NCAA or other athletic associations may update their policies again.
Where Do We Go From Here?
This regulation is proposed and must go through the public comment period before it goes into effect. The proposed regulation was published in the Federal Register on April 13, 2023, which started the 30-day comment period. Comments on this proposal are due on or before May 15, 2023 and can be submitted through Regulations.gov.
This proposed regulation will not go into effect until after the Department of Education has considered the comments it receives, and it may choose to revise the proposed regulation before it is finalized. When the Department of Education publishes the final regulation, it will set an implementation date at that time.
Tueth Keeney will continue to monitor developments related to this proposed regulation, including the effect the final regulation and other Missouri and Illinois statutes and regulations may have on your institution. If you have questions about how this proposed regulation might impact your institution or are considering amending your institution’s policy, please contact your Tueth Keeney attorney.
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Higher Education – Tueth Keeney maintains one of the largest and most successful higher education law groups in the Midwest. Our higher education practice includes representation of numerous colleges and universities throughout Missouri and Illinois. The attorneys in the Firm’s higher education group provide a full range of services to colleges and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.
Missouri Education – The law firm of Tueth Keeney Cooper Mohan & Jackstadt, P.C. (the “Firm”), has one of the largest and most successful education law groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri. The Firm also has one of the largest school law practices in Central and Southern Illinois.
Illinois Education – Tueth Keeney is proud to be one of the state’s largest Illinois education law practices. The firm has one of the most experienced groups of attorneys in Central and Southern Illinois dedicated to serving public schools. We regularly represent nearly 150 public school districts, including many districts in Central and Southern Illinois. Our Firm is also regularly appointed by insurers of educational institutions to represent districts in complex or difficult cases involving school or civil rights laws.
Mandi Moutray practices in the areas of education, litigation, and labor and employment law. She regularly advises boards of education and administrators on matters involving employee hiring, evaluation, remediation, and termination; student rights and discipline; harassment and discrimination claims; the Missouri Open Meetings Act; first amendment issues; and Title IX. Mandi also advises private employers, including multi-jurisdictional employers, on employment-related issues, including Title VII, the ADA, the ADEA, the FMLA, related state laws, reorganizations, and reductions-in-force. Mandi has a B.S. in Business Administration from the University of Missouri and earned her J.D. from Saint Louis University School of Law. While in law school, Mandi served as a judicial intern to the Honorable Roy L. Richter for the Missouri Court of Appeals, Eastern District.
Veronica E. Potter practices primarily in the areas of higher education, litigation, and labor and employment law. Veronica represents colleges, universities, and private employers in education and employment litigation matters. Veronica started her legal career as a prosecutor, where she gained experience in all stages of litigation, including case investigation, discovery, arguing pre-trial motions, and presenting cases to both judges and juries. Prior to joining the firm, Veronica also practiced civil litigation at a large defense firm in St. Louis.