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, 22860-22891 [2023-07601]
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Federal Register / Vol. 88, No. 71 / Thursday, April 13, 2023 / Proposed Rules
DEPARTMENT OF EDUCATION
34 CFR Part 106
[Docket ID ED–2022–OCR–0143]
RIN 1870–AA19
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
Office for Civil Rights,
Department of Education.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
The U.S. Department of
Education (Department) proposes to
amend its regulations implementing
Title IX of the Education Amendments
of 1972 (Title IX) to set out a standard
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. The proposed
regulation would clarify Title IX’s
application to such sex-related criteria
and the obligation of schools and other
recipients of Federal financial assistance
from the Department (referred to below
as ‘‘recipients’’ or ‘‘schools’’) that adopt
or apply such criteria to do so consistent
with Title IX’s nondiscrimination
mandate.
SUMMARY:
Comments must be received on
or before May 15, 2023.
ADDRESSES: Comments must be
submitted via the Federal eRulemaking
Portal at https://www.regulations.gov.
However, if you require an
accommodation or cannot otherwise
submit your comments via https://
www.regulations.gov, please contact the
program contact person listed under FOR
FURTHER INFORMATION CONTACT.
Comments that are not submitted via
https://www.regulations.gov will not be
accepted absent such a request. The
Department will not accept comments
submitted after the comment period
closes. To ensure that the Department
does not receive duplicate copies,
please submit your comments only
once. Additionally, please include the
Docket ID at the top of your comments.
Federal eRulemaking Portal: Please go
to https://www.regulations.gov to
submit your comments electronically.
Information on using https://
www.regulations.gov, including
instructions for finding a rule on the site
and submitting comments, is available
on the site under ‘‘FAQ.’’
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Note: The Department’s policy is
generally to make comments received
from members of the public available for
public viewing on the Federal
eRulemaking Portal at https://
www.regulations.gov. Therefore,
commenters should include in their
comments only information about
themselves that they wish to make
publicly available. Commenters should
not include in their comments any
information that identifies other
individuals or that permits readers to
identify other individuals. If, for
example, your comment describes an
experience of someone other than
yourself, please do not identify that
individual or include information that
would allow readers to identify that
individual. The Department reserves the
right to redact at any time any
information in comments that identifies
other individuals, includes information
that would allow readers to identify
other individuals, or includes threats of
harm to another person.
FOR FURTHER INFORMATION CONTACT:
Alejandro Reyes, U.S. Department of
Education, 400 Maryland Ave. SW,
PCP–6125, Washington, DC 20202.
Telephone: 202–245–7705. You may
also email your questions to
T9AthleticsNPRM@ed.gov, but as
described above, comments must be
submitted via the Federal eRulemaking
Portal at https://www.regulations.gov.
If you are deaf, hard of hearing, or
have a speech disability and wish to
access telecommunications relay
services, please dial 7–1–1.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Department’s July 2022 Proposed
Rulemaking
On July 12, 2022, the Department
published in the Federal Register a
notice of proposed rulemaking to amend
its regulations implementing Title IX
(July 2022 NPRM). 87 FR 41390 (July 12,
2022), https://www.federalregister.gov/
documents/2022/07/12/2022-13734/
nondiscrimination-on-the-basis-of-sexin-education-programs-or-activitiesreceiving-federal. In the July 2022
NPRM, the Department announced
plans to issue a separate notice of
proposed rulemaking to address
whether and how the Department
should amend its Title IX regulations to
clarify what criteria, if any, a recipient
of Federal funding 1 should be permitted
1 The text of Title IX states that the statute applies
to ‘‘any education program or activity receiving
Federal financial assistance.’’ 20 U.S.C. 1681(a).
The definition of the term ‘‘Federal financial
assistance’’ under the Department’s Title IX
regulations is not limited to monetary assistance,
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to use to establish students’ eligibility to
participate on a particular male or
female athletic team. 87 FR 41537. This
notice of proposed rulemaking, referred
to below as the Athletics NPRM,
addresses that issue. The comment
period for the July 2022 NPRM closed
on September 12, 2022.
Purpose of This Regulatory Action
The purpose of this regulatory action,
the Athletics NPRM, is 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 (referred to below
as ‘‘sex-related criteria’’ or ‘‘sex-related
eligibility criteria’’). The proposed
regulation also would provide needed
clarity, in response to questions from
stakeholders, on how recipients can
ensure that students have equal
opportunity to participate on male and
female athletic teams as required by
Title IX.
In particular, the Department
proposes amending § 106.41(b) of its
Title IX regulations to provide that, 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 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. As
discussed below, the proposed
regulation would not prohibit a
recipient’s use of sex-related criteria
altogether. Instead, the proposed
regulation would require that a recipient
meet this standard for any sex-related
criteria that would limit or deny
students’ eligibility to participate on a
male or female team consistent with
their gender identity. The Department
recognizes that prevention of sportsrelated injury is an important
educational objective in recipients’
athletic programs and that—as courts
have long recognized in cases involving
but encompasses various types of in-kind
assistance, such as a grant or loan of real or
personal property, or provision of the services of
Federal personnel. See 34 CFR 106.2(g)(2) and (3).
Throughout this preamble, terms such as ‘‘Federal
funding,’’ ‘‘Federal funds,’’ and ‘‘federally funded’’
are used to refer to ‘‘Federal financial assistance,’’
and are not meant to limit application of the statute
or its implementing regulations to recipients of
certain types of Federal financial assistance.
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sex-separate athletic teams—fairness in
competition may be particularly
important for recipients in some sports,
grade and education levels, and levels of
competition. The Department
anticipates that some uses of sex-related
eligibility criteria would satisfy the
standard in the proposed regulation in
some sports, grade and education levels,
and levels of competition.
The Department makes this proposal
based on an extensive review of its
regulations implementing Title IX, as
well as the statute’s text and legislative
history; Federal and State case law;
relevant State laws and the policies of
schools and athletic associations; live
and written comments received during
a nationwide virtual public hearing on
Title IX held in June 2021; and other
information provided by stakeholders.
Executive Order on Regulatory Planning
and Review, Exec. Order No. 12866, 58
FR 51735 (Oct. 4, 1993), https://
www.govinfo.gov/content/pkg/FR-199310-04/pdf/FR-1993-10-04.pdf.
Costs and Benefits
As further detailed below in the
Regulatory Impact Analysis, the
Department estimates that the total
monetary cost to recipients of the
proposed regulation over 10 years
would be in the range of $23.4 million
to $24.4 million, assuming a seven
percent and three percent discount rate,
respectively. Because of the lack of
available quantitative data, the
Department cannot fully quantify the
economic impact of the proposed
regulation. The Department believes
that the benefits associated with the
proposed regulation—providing a
standard to clarify Title IX obligations
for recipients that adopt or apply sexrelated eligibility criteria and protecting
students’ equal opportunity to
participate on male and female teams
consistent with Title IX—far outweigh
the costs.
In particular, the Department believes
the proposed regulation would offer
greater clarity regarding how a recipient
can comply with its nondiscrimination
obligation under Title IX if the recipient
offers an athletic program and 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. The Department recognizes
that there is a valuable, even if not
readily quantifiable, benefit of
increasing students’ equal opportunity
to participate consistent with their
gender identity under sex-related
eligibility criteria that meet the
proposed regulation’s requirements,
which some recipients’ current
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eligibility criteria may not provide. The
Department also recognizes that,
without the proposed regulation’s
requirements for a recipient’s sexrelated eligibility criteria, some students
may suffer harm as a result of being
unable to gain the benefits associated
with equal opportunity to participate on
athletic teams at school.
Participation in team sports has been
associated with many valuable physical,
emotional, academic, and interpersonal
benefits for students, and athletic
participation has the potential to help
students develop skills that benefit them
in school and throughout life, including
teamwork, discipline, resilience,
leadership, confidence, social skills, and
physical fitness. See, e.g., Scott L.
Zuckerman et al., The Behavioral,
Psychological, and Social Impacts of
Team Sports: A Systematic Review and
Meta-analysis, 49 Physician & Sports
Med. 246 (2021); Ryan D. Burns et al.,
Sports Participation Correlates with
Academic Achievement: Results From a
Large Adolescent Sample Within the
2017 U.S. National Youth Risk Behavior
Survey, 127 Perceptual & Motor Skills
448 (2020); President’s Council on
Sports, Fitness & Nutrition Sci. Bd.,
Benefits of Youth Sports (Sept. 17,
2020), https://health.gov/sites/default/
files/2020-09/YSS_Report_OnePager_
2020-08-31_web.pdf; Parker v. Franklin
Cnty. Cmty. Sch. Corp., 667 F.3d 910,
916 (7th Cir. 2012) (noting that
‘‘[s]tudies have shown that sports
participation provides important
lifetime benefits to participants’’
(quoting Dionne L. Koller, Not Just One
of the Boys: A Post-Feminist Critique of
Title IX’s Vision for Gender Equity in
Sports, 43 Conn. L. Rev. 401, 413
(2010))).
The Department also recognizes that a
recipient could incur some costs in
complying with the proposed regulation
if it adopts or applies certain sex-related
eligibility criteria for participation on
male or female athletic teams. The
Department acknowledges that past
agency statements on Title IX’s coverage
of discrimination based on gender
identity have varied, and the proposed
regulation would shift away from some
of those statements. The Department
believes that any costs associated with
an individual recipient’s compliance
would be minimal if the proposed
regulation is made final. For example,
the proposed regulation may require
updating of existing policies or training
materials, but the Department does not
expect that the proposed regulation
would require other types of
expenditures.
Invitation to Comment: The
Department invites you to submit
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comments regarding the proposed
regulation. To ensure that your
comments have the maximum effect on
developing the final regulation, you
should identify clearly the specific part
of the proposed regulation or directed
question that each of your comments
addresses.
The Department also invites you to
assist us in complying with the specific
requirements of Executive Orders 12866
and 13563 (explained further below)
and their overall goal of reducing the
regulatory burden that might result from
the proposed regulation. Please let the
Department know of any further ways it
may reduce potential costs or increase
potential benefits, while preserving the
effective and efficient administration of
the Department’s programs and
activities. The Department also
welcomes comments on any alternative
approaches to the subjects addressed by
the proposed regulation.
During and after the comment period,
you may inspect public comments about
the proposed regulation by accessing
Regulations.gov. You may also inspect
the comments in person. Please contact
the person listed under FOR FURTHER
INFORMATION CONTACT to make
arrangements to inspect the comments
in person.
Assistance to Individuals with
Disabilities in Reviewing the
Rulemaking Record: Upon request, the
Department will provide an appropriate
accommodation or auxiliary aid to an
individual with a disability who needs
assistance to review the comments or
other documents in the public
rulemaking record for the proposed
regulation. To schedule an appointment
for this type of accommodation or
auxiliary aid, please contact the person
listed under FOR FURTHER INFORMATION
CONTACT.
Background
The mission of the Department’s
Office for Civil Rights (OCR) is to ensure
equal access to education and to
promote educational excellence through
vigorous enforcement of civil rights in
our Nation’s schools. One of the Federal
civil rights laws that OCR enforces is
Title IX, which prohibits discrimination
on the basis of sex under education
programs or activities that receive
Federal financial assistance. 20 U.S.C.
1681–1688. Athletic programs have long
been recognized by Congress, the
Department, and Federal courts as an
integral part of a recipient’s education
program or activity subject to Title IX.
See, e.g., Education Amendments of
1974, Public Law 93–380, section 844,
88 Stat. 484, 612 (Javits Amendment);
see also U.S. Dep’t of Health, Educ., and
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Welfare, Final Rule: Nondiscrimination
on the Basis of Sex in Education
Programs and Activities Receiving or
Benefiting from Federal Financial
Assistance, 40 FR 24128, 24134 (June 4,
1975) (citing cases); U.S. Dep’t of
Health, Educ., and Welfare, Office for
Civil Rights, A Policy Interpretation:
Title IX and Intercollegiate Athletics, 44
FR 71413 (Dec. 11, 1979) (1979 Policy
Interpretation), https://
www.govinfo.gov/content/pkg/FR-197912-11/pdf/FR-1979-12-11.pdf (also
available at https://www.ed.gov/ocr/
docs/t9interp.html); N. Haven Bd. of
Educ. v. Bell, 456 U.S. 512, 516, 531–
32, 532 n.22 (1982) (noting the broad
sweep of Title IX; that the original Title
IX regulations, reviewed by Congress,
covered athletics; and that a Senate
resolution disapproving the regulations’
application to athletics was introduced
but not ‘‘acted upon’’).
In June 2020, the Supreme Court
issued its decision in Bostock v. Clayton
County, 140 S. Ct. 1731 (2020), holding
that discrimination based on sexual
orientation or gender identity is sex
discrimination under Title VII of the
Civil Rights Act of 1964. In January
2021, President Joseph R. Biden, Jr.
issued Executive Order 13988 on
Preventing and Combating
Discrimination on the Basis of Gender
Identity or Sexual Orientation, which
set out this Administration’s policy ‘‘to
prevent and combat discrimination on
the basis of gender identity or sexual
orientation, and to fully enforce Title
VII [of the Civil Rights Act of 1964] and
other laws that prohibit discrimination
on the basis of gender identity or sexual
orientation.’’ Executive Order on
Preventing and Combating
Discrimination on the Basis of Gender
Identity or Sexual Orientation, Exec.
Order No. 13988, 86 FR 7023 (Jan. 25,
2021), https://www.govinfo.gov/content/
pkg/FR-2021-01-25/pdf/2021-01761.pdf.
Executive Order 13988 directed the
Secretary of Education, in consultation
with the Attorney General, to ‘‘review
all existing orders, regulations, guidance
documents, policies, programs, or other
agency actions’’ promulgated under any
statute or regulation that prohibits sex
discrimination for their consistency
with the stated policy. Id.
The President subsequently issued
Executive Order 14021 to ensure ‘‘that
all students [are] guaranteed an
educational environment free from
discrimination on the basis of sex,
including discrimination in the form of
sexual harassment, which encompasses
sexual violence, and including
discrimination on the basis of sexual
orientation or gender identity.’’
Executive Order on Guaranteeing an
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Educational Environment Free from
Discrimination on the Basis of Sex,
Including Sexual Orientation or Gender
Identity, Exec. Order No. 14021, 86 FR
13803 (Mar. 11, 2021), https://
www.govinfo.gov/content/pkg/FR-202103-11/pdf/2021-05200.pdf. This
Executive Order, like Executive Order
13988, directed the Secretary of
Education, in consultation with the
Attorney General, to review all existing
regulations, orders, guidance
documents, policies and any other
similar agency actions for consistency
with Title IX, other governing laws, and
the stated policy.
As these Executive Orders directed,
the Department extensively reviewed its
Title IX regulations and policy
documents for consistency with Title
IX’s statutory prohibition on sex
discrimination in federally funded
education programs or activities. Based
on this review and consideration of,
among other things, substantial input
from stakeholders, the Department
published the July 2022 NPRM to
amend its regulations implementing
Title IX. 87 FR 41390.
In the course of its review, the
Department also received feedback that
the current regulations do not explicitly
address the criteria, if any, a recipient
may use to determine a student’s
eligibility to participate on a male or
female athletic team consistent with
Title IX and the Department’s
regulations. Based on this review and
consideration of substantial input from
stakeholders, the Department proposes
amending its current regulations to
address the unique circumstances of
male and female athletic teams
consistent with Title IX’s prohibition on
discrimination on the basis of sex. In
particular, this Athletics NPRM
proposes amending the Department’s
Title IX regulations to set out a standard
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 male or
female athletic teams consistent with
their gender identity.
History of Title IX’s Application to
Athletic Programs
Enacted in 1972, Title IX provides
that ‘‘[n]o person in the United States
shall, on the basis of sex, be excluded
from participation in, be denied the
benefits of, or be subjected to
discrimination under any education
program or activity receiving Federal
financial assistance.’’ 20 U.S.C. 1681(a).
Title IX includes several statutory
exemptions and exceptions from its
coverage, including for the membership
practices of certain organizations,
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admissions to private undergraduate
colleges, educational institutions that
train individuals for the military
services or merchant marine, and
educational institutions that are
controlled by a religious organization to
the extent that application of Title IX
would be inconsistent with the religious
tenets of the controlling organization. 20
U.S.C. 1681(a)(1)–(9). Title IX authorizes
and directs the Department, as well as
other agencies, ‘‘to effectuate the
provisions of section 1681 of this title
with respect to such program or activity
by issuing rules, regulations, or orders
of general applicability which shall be
consistent with achievement of the
objectives of the statute authorizing the
financial assistance in connection with
which the action is taken.’’ 20 U.S.C.
1682.
In 1974, Congress enacted the Javits
Amendment in response to concerns
that Title IX would disrupt existing
practices in intercollegiate athletics. It
read:
The [Department of Health, Education, and
Welfare (HEW)] Secretary shall prepare and
publish, not later than 30 days after the date
of enactment of this Act, proposed
regulations implementing the provisions of
title IX of the Education Amendments of
1972 relating to the prohibition of sex
discrimination in federally assisted
education programs which shall include with
respect to intercollegiate athletic activities
reasonable provisions considering the nature
of particular sports.
Education Amendments of 1974 section
844; see also S. Rep. No. 93–1026 (1974)
(Conf. Rep.), as reprinted in 1974
U.S.C.C.A.N. 4206, 4271.
In 1975, HEW, the Department’s
predecessor, first promulgated
regulations under Title IX 2 after
multiple congressional hearings. 121
Cong. Rec. 20467 (1975) (statement of
Sen. Birch Bayh). The regulations were
subject to a statutory ‘‘laying before’’
provision, designed to afford Congress
an opportunity to examine the proposed
regulations and disapprove them by
resolution within 45 days if Congress
deemed them to be inconsistent with
Title IX. N. Haven Bd. of Educ., 456 U.S.
at 531–32. The Supreme Court has
stated that the fact that no such
disapproval resolution was adopted
2 45 CFR part 86 (1975). In 1980, Congress created
the U.S. Department of Education. Public Law 96–
88, section 201, 93 Stat. 669, 671 (1979); Exec.
Order No. 12212, 45 FR 29557 (May 5, 1980). By
operation of law, all of HEW’s determinations,
rules, and regulations continued in effect, and all
functions of HEW’s Office for Civil Rights with
respect to educational programs were transferred to
the Secretary of Education. 20 U.S.C. 3441(a)(3).
The regulations implementing Title IX were
recodified without substantive change in 34 CFR
part 106. See 45 FR 30802, 30955–65 (May 9, 1980).
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‘‘strongly implies that the [Title IX]
regulations accurately reflect
congressional intent.’’ Grove City Coll.
v. Bell, 465 U.S. 555, 568 (1984); 3 see
also N. Haven Bd. of Educ., 456 U.S. at
533–35.
Since 1975, the Department’s
regulations have specified that separate
or differential treatment on the basis of
sex is presumptively a form of
prohibited sex discrimination. See, e.g.,
34 CFR 106.31(b)(4), (7) (‘‘Except as
provided for in this subpart, in
providing any aid, benefit, or service to
a student, a recipient shall not, on the
basis of sex . . . [s]ubject any person to
separate or different rules of behavior,
sanctions, or other treatment; . . . [or]
[o]therwise limit any person in the
enjoyment of any right, privilege,
advantage, or opportunity.’’); see also id.
at 106.34(a) (‘‘Except as provided for in
this section or otherwise in this part, a
recipient shall not provide or otherwise
carry out any of its education programs
or activities separately on the basis of
sex.’’). These regulations reflect the
understanding that subjecting students
to differential treatment on the basis of
sex in the education context is
presumptively harmful and cannot be
justified by reliance on ‘‘overbroad
generalizations about the different
talents, capacities, or preferences of
males and females.’’ United States v.
Virginia, 518 U.S. 515, 533 (1996).
Despite the general principle reflected
in the Department’s regulations that
differential treatment or separation
based on sex presumptively results in
prohibited sex discrimination, Congress
indicated in the Javits Amendment that
a different approach to athletics was
appropriate and that the Title IX
regulations should include ‘‘reasonable’’
provisions governing intercollegiate
athletic activities in light of ‘‘the nature
of particular sports.’’ Education
Amendments of 1974 section 844. HEW
responded to this congressional
direction by promulgating a regulation
permitting sex separation in certain
3 The Supreme Court in NCAA v. Smith
subsequently described Grove City College as
holding ‘‘that Title IX, as originally enacted,
covered only the specific program receiving federal
funding.’’ 525 U.S. 459, 466 n.4 (1999) (citing Grove
City Coll., 465 U.S. at 570–74). That part of the
Court’s holding was superseded by the Civil Rights
Restoration Act (CRRA), in which Congress
‘‘correct[ed] what it considered to be an
unacceptable’’ interpretation by the Supreme Court
of the scope of Title IX. Id. (quoting Franklin v.
Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 73 (1992)).
The CRRA codifies Congress’s interpretation of the
terms ‘‘program or activity’’ and ‘‘program’’ as
encompassing ‘‘all of the operations of * * * . . .
(2)(A) a college, university, or other postsecondary
institution . . . * * * or (B) a local education agency
. . . * * * or other school system . . .* * * any part
of which is extended Federal financial assistance.’’
20 U.S.C. 1687.
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circumstances in ‘‘any interscholastic,
intercollegiate, club or intramural
athletics offered by a recipient.’’ 45 CFR
86.41 (1975) (currently codified at 34
CFR 106.41). As noted above, Congress
had the opportunity to examine and
disapprove HEW’s regulations,
including this athletics provision.
Congress did not disapprove them, and
the Title IX regulations took effect on
July 21, 1975.
The now-longstanding athletics
regulation states that ‘‘[n]o person shall,
on the basis of sex, be excluded from
participation in, be denied the benefits
of, be treated differently from another
person or otherwise be discriminated
against in any interscholastic,
intercollegiate, club or intramural
athletics offered by a recipient, and no
recipient shall provide any such
athletics separately on such basis.’’ 34
CFR 106.41(a). The regulation then
provides that when selection for an
athletic team is based upon competitive
skill or the activity involved is a contact
sport, a recipient may offer sex-separate
teams (though it is not required to do
so). 34 CFR 106.41(b) (‘‘[A] recipient
may operate or sponsor separate teams
for members of each sex where selection
for such teams is based upon
competitive skill or the activity
involved is a contact sport.’’). The
regulation contemplates that in some
circumstances, female students may try
out for a male team, or vice versa:
‘‘[W]here a recipient operates or
sponsors a team in a particular sport for
members of one sex but operates or
sponsors no such team for members of
the other sex, and athletic opportunities
for members of that sex have previously
been limited, members of the excluded
sex must be allowed to try-out for the
team offered unless the sport involved
is a contact sport.’’ Id. The regulation
thus recognizes that in some instances
individual students may be denied the
opportunity to participate on a
particular team on the basis of sex.
Importantly, the regulation goes on to
say that a recipient must still provide
equal opportunity in its athletic
program as a whole. 34 CFR 106.41(c).
Thus, a recipient that excludes a boy
from the girls’ golf team and does not
offer a boys’ golf team, for example,
would have to provide equal
opportunity based on sex across the
totality of its athletic program, and
disparities in overall participation
opportunities in that program, including
on male and female teams, could violate
§ 106.41(c), depending on the facts at
issue. As one court explained, ‘‘the
provisions of title IX grant flexibility to
the recipient of federal funds to organize
its athletic program as it wishes, so long
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as the goal of equal athletic opportunity
is met.’’ Williams v. Sch. Dist. of
Bethlehem, 998 F.2d 168, 171 (3d Cir.
1993) (citation omitted); see also U.S.
Dep’t of Health, Educ., and Welfare,
Office for Civil Rights, Sex
Discrimination in Athletic Programs, 40
FR 52655, 52656 (Nov. 11, 1975)
(explaining that ‘‘an institution would
not be effectively accommodating the
interests and abilities of women if it
abolished all its women’s teams and
opened up its men’s teams to women,
but only a few women were able to
qualify for the men’s team’’).
Although the Department’s Title IX
regulations have never explicitly
addressed the criteria, if any, a recipient
may use to determine a student’s
eligibility to participate on a male or
female athletic team, OCR has
previously articulated various
interpretations of current § 106.41(b) as
applied to transgender students (i.e.,
students whose gender identity is
different from the sex they were
assigned at birth). In May 2016, OCR
and the Civil Rights Division of the U.S.
Department of Justice (DOJ) issued a
joint Dear Colleague Letter stating that
while a recipient may not ‘‘adopt or
adhere to requirements that rely on
overly broad generalizations or
stereotypes . . . or others’ discomfort
with transgender students[,] Title IX
does not prohibit age-appropriate,
tailored requirements based on sound,
current, and research-based medical
knowledge about the impact of the
students’ participation on the
competitive fairness or physical safety
of the sport.’’ U.S. Dep’t of Justice, Civil
Rights Division, and U.S. Dep’t of Educ.,
Office for Civil Rights, Dear Colleague
Letter on Title IX and Transgender
Students at 3 (May 13, 2016) (rescinded
in 2017) (2016 Dear Colleague Letter on
Title IX and Transgender Students)
(footnote omitted), https://
www2.ed.gov/about/offices/list/ocr/
letters/colleague-201605-title-ixtransgender.pdf. In cases alleging
gender identity discrimination in sexseparate programs and activities outside
the context of athletic teams—e.g.,
denying students access to sex-separate
facilities consistent with their gender
identity—several Federal courts have
held that the Department’s
interpretation of 34 CFR 106.33 of its
Title IX regulations, as reflected in the
2016 Dear Colleague Letter on Title IX
and Transgender Students, was
reasonable. See, e.g., G.G. ex rel. Grimm
v. Gloucester Cnty. Sch. Bd., 822 F.3d
709, 723 (4th Cir. 2016) (according
controlling weight to the ‘‘Department’s
interpretation of its own regulation,
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§ 106.33’’), vacated and remanded, 137
S. Ct. 1239, 197 L. Ed. 2d 460 (2017);
Bd. of Educ. of the Highland Loc. Sch.
Dist. v. U.S. Dep’t of Educ., 208 F. Supp.
3d 850, 870 (S.D. Ohio 2016) (same);
Whitaker v. Kenosha Unified Sch. Dist.
No. 1 Bd. of Educ., No. 16–CV–943–PP,
2016 WL 5239829, at *3 (E.D. Wis. Sept.
22, 2016) (same), aff’d sub nom.
Whitaker by Whitaker v. Kenosha
Unified Sch. Dist. No. 1 Bd. of Educ.,
858 F.3d 1034 (7th Cir. 2017), abrogated
on other grounds as recognized by Ill.
Republican Party v. Pritzker, 973 F.3d
760, 762 (7th Cir. 2020).
In August 2016, however, a Federal
district court issued an opinion finding
that the interpretation set out in the
2016 Dear Colleague Letter on Title IX
and Transgender Students did not
undergo the notice-and-comment
process required by the Administrative
Procedure Act and was contrary to law.
The district court granted a preliminary
injunction barring the Departments of
Education and Justice from relying on
the 2016 Dear Colleague Letter on Title
IX and Transgender Students in their
enforcement of Title IX with respect to
access to certain sex-separate facilities.
Texas v. United States, 201 F. Supp. 3d
810, 836 (N.D. Tex. 2016); see also
Texas v. United States, No. 7:16–CV–
00054–O, 2016 WL 7852331, at *4 (N.D.
Tex. Oct. 18, 2016) (clarifying that the
preliminary injunction is ‘‘limited to the
issue of access to intimate facilities’’). In
February 2017, DOJ’s Civil Rights
Division and OCR issued a letter
withdrawing the statements of policy
and guidance reflected in the 2016 Dear
Colleague Letter on Title IX and
Transgender Students, stating that they
made this change ‘‘in order to further
and more completely consider the legal
issues involved.’’ U.S. Dep’t of Justice,
Civil Rights Division, and U.S. Dep’t of
Educ., Office for Civil Rights, Dear
Colleague Letter on Transgender
Students at 1 (Feb. 22, 2017) (under
review in light of Exec. Order No.
13988), https://www2.ed.gov/about/
offices/list/ocr/letters/colleague-201702title-ix.pdf. On March 3, 2017, the
Federal district court dissolved the
preliminary injunction when the
plaintiffs voluntarily dismissed the
lawsuit. Plaintiff’s Notice of Voluntary
Dismissal, Texas v. United States, No.
7:16–cv–00054 (N.D. Tex. Mar. 3, 2017),
ECF No. 128.
In the months immediately following
the Supreme Court’s June 2020 decision
in Bostock, 140 S. Ct. 1731, OCR made
several statements on Bostock’s
application to Title IX. For instance, on
August 31, 2020, OCR issued a revised
Letter of Impending Enforcement Action
in its investigation of the Connecticut
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Interscholastic Athletic Conference
(CIAC) and six school districts. OCR
Case No. 01–19–4025, Conn.
Interscholastic Athletic Conf. et al.
(Aug. 31, 2020) (revised letter of
impending enforcement action)
(archived and marked not for reliance in
February 2021) (Revised CIAC Letter),
https://www2.ed.gov/about/offices/list/
ocr/docs/investigations/more/01194025a2.pdf. The letter stated that OCR was
providing an update in light of Bostock
and took the position that when a
recipient provides ‘‘separate teams for
members of each sex’’ under 34 C.F.R.
§106.41(b), ‘‘the recipient must separate
those teams on the basis of biological
sex’’ and not on the basis of gender
identity. Revised CIAC Letter at 36. The
letter departed from OCR’s typical
practice concerning enforcement letters
by stating that it ‘‘constitutes a formal
statement of OCR’s interpretation of
Title IX and its implementing
regulations and should be relied upon,
cited, and construed as such.’’ Id. at 49.
In January 2021, the Department
posted a memorandum from its General
Counsel’s office commenting on
Bostock’s application to Title IX. U.S.
Dep’t of Educ., Memorandum from
Principal Deputy General Counsel
delegated the authority and duties of the
General Counsel Reed D. Rubinstein to
Kimberly M. Richey, Acting Assistant
Secretary of the Office for Civil Rights
re Bostock v. Clayton Cnty. (Jan. 8, 2021)
(archived and marked not for reliance in
March 2021) (Rubinstein
Memorandum), https://www2.ed.gov/
about/offices/list/ocr/correspondence/
other/ogc-memorandum-01082021.pdf.
The Rubinstein Memorandum stated
that ‘‘if a recipient chooses to provide
‘separate teams for members of each sex’
under 34 C.F.R § 106.41(b), then it must
separate those teams solely on the basis
of biological sex, male or female, and
not on the basis of transgender status or
sexual orientation, to comply with Title
IX.’’
In February 2021, OCR withdrew the
Revised CIAC Letter, citing its
inconsistency with Executive Order
13988 (describing Bostock) and the fact
that it was issued without following the
appropriate procedures required for
issuing guidance.4 Similarly, in March
4 OCR Case No. 01–19–4025, Conn.
Interscholastic Athletic Conf. et al. (Feb. 23, 2021)
(letter withdrawing Revised CIAC Letter), https://
www2.ed.gov/about/offices/list/ocr/docs/investi
gations/more/01194025-a5.pdf. In December 2022,
in related Federal court litigation over CIAC’s
athletic eligibility policy, a panel of the U.S. Court
of Appeals for the Second Circuit noted that the
policy—which permits high school students to
participate on male and female athletic teams
consistent with their gender identity—could not be
said to fall ‘‘within the scope of Title IX’s
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2021, the Department archived the
Rubinstein Memorandum and marked it
‘‘not for reliance,’’ citing its
inconsistency with Executive Order
13988 and the fact that it was issued
without the review required under the
then-applicable Department’s
Rulemaking and Guidance Procedures,
85 FR 62597 (Oct. 5, 2020) (rescinded
effective September 29, 2021).
In June 2021, the Departments of
Justice and Education filed a Statement
of Interest in a Title IX and equal
protection challenge to a State law
limiting students’ eligibility to
participate on female athletic teams
consistent with their gender identity,
emphasizing that ‘‘[a]t its core, Title IX
is about ensuring equal educational
opportunities to all students regardless
of their sex.’’ Statement of Interest of the
United States at 12, B.P.J. v. W. Va. State
Bd. of Educ., 550 F. Supp. 3d 347 (S.D.
W. Va. 2021) (No. 2:21–cv–00316),
https://www.justice.gov/crt/casedocument/file/1405541/download
(supporting the Title IX and equal
protection claims raised by a
transgender girl in middle school
challenging the application of a State
law prohibiting her from participating
on her school’s girls’ athletic teams).5 In
April 2023, the Department of Justice
filed a brief as amicus curiae in support
of plaintiff-appellant B.P.J.’s appeal to
the Fourth Circuit. See Brief for the
United States as Amicus Curiae in
Support of Plaintiff-Appellant and
Urging Reversal, B.P.J. v. W. Va. State
Bd. of Educ., No. 23–1078 (4th Cir. Apr.
proscriptions.’’ Soule by Stanescu v. Conn. Ass’n of
Schs., 57 F.4th 43, 55 (2d Cir. 2022). Subsequently,
the Second Circuit vacated the panel’s opinion
pending rehearing en banc. See Soule by Stanescu
v. Conn. Ass’n of Schs., No. 21–1365 (2d Cir. Feb.
13, 2023).
5 The Federal district court initially granted a
preliminary injunction barring implementation of
the West Virginia law to exclude a transgender girl
in middle school from participating on her school’s
girls’ track and cross-country teams, B.P.J., 550 F.
Supp. 3d at 357. On January 5, 2023, the court
granted a motion for summary judgment upholding
West Virginia’s law, concluding that the law does
not violate the Equal Protection Clause or Title IX,
and dissolving the preliminary injunction. B.P.J. v.
W. Va. State Bd. of Educ., No. 2:21-cv-00316, 2023
WL 111875, at *8–10 (S.D. W. Va. Jan. 5, 2023),
appeal docketed, No. 23–1078 (4th Cir. Jan. 24,
2023). On February 22, 2023, a panel of the Fourth
Circuit granted B.P.J.’s Motion for Stay of the
District Court’s January 5, 2023, Order dissolving
the preliminary injunction pending appeal. See
B.P.J. v. W. Va. State Bd. of Educ., No. 23–1078 (4th
Cir. Feb. 22, 2023). On March 9, 2023, the
Defendants-Appellees submitted an application to
the U.S. Supreme Court seeking to vacate the
Fourth Circuit’s injunction pending appeal. See
Application to Vacate the Injunction Entered by the
United States Court of Appeals for the Fourth
Circuit, W. Va. State Bd. of Educ. v. B.P.J., No.
22A800 (U.S. Mar. 9, 2023). The discussion below
further addresses the district court’s now-dissolved
January 5, 2023, Order.
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3, 2023), https://www.justice.gov/crt/
case-document/file/1577891/download.
Separately, also in June 2021, in light
of the Supreme Court’s decision in
Bostock, the Department issued a Notice
of Interpretation to explain the
Department’s enforcement authority
over discrimination based on sexual
orientation and gender identity under
Title IX. U.S. Dep’t of Educ., Office for
Civil Rights, Notice of Interpretation:
Enforcement of Title IX with Respect to
Discrimination Based on Sexual
Orientation and Gender Identity in Light
of Bostock v. Clayton County, 86 FR
32637 (June 22, 2021) (2021 Bostock
Notice of Interpretation), https://
www.govinfo.gov/content/pkg/FR-202106-22/pdf/2021-13058.pdf.6 Against this
backdrop and for reasons described in
this preamble, the Secretary proposes to
amend the Department’s Title IX
regulation in 34 CFR 106.41.
The Department’s Review of Its Title IX
Regulations
On April 6, 2021, OCR issued a letter
to students, educators, and other
stakeholders that informed them about
the steps the Department was taking to
review its regulations, orders, guidance,
policies, and other similar agency
actions under Title IX. U.S. Dep’t of
Educ., Office for Civil Rights, Letter
from Acting Assistant Secretary
Suzanne B. Goldberg to Students,
Educators, and other Stakeholders re
Executive Order 14021 (Apr. 6, 2021),
https://www.ed.gov/ocr/
correspondence/stakeholders/20210406titleix-eo-14021.pdf. As directed by
Executive Order 14021, this
comprehensive review included OCR’s
review of all agency actions to
determine whether changes to the
Department’s Title IX regulations are
necessary to fulfill Title IX’s mandate
and OCR’s commitment to ensuring
equal and nondiscriminatory access to
education for students at all education
levels, regardless of sex. See id. at 2.
On May 20, 2021, OCR published a
notice in the Federal Register
announcing a nationwide virtual public
hearing (referred to below as the ‘‘June
2021 Title IX Public Hearing’’) to gather
information for the purpose of
improving enforcement of Title IX. U.S.
Dep’t of Educ., Office for Civil Rights,
Announcement of Public Hearing; Title
IX of the Education Amendments of
6 A Federal district court preliminarily enjoined
and restrained the Department from implementing
the 2021 Bostock Notice of Interpretation against 20
States. See Tennessee v. U.S. Dep’t of Educ., No.
3:21–cv–308, 2022 WL 2791450, at *24 (E.D. Tenn.
July 15, 2022), appeal docketed, No. 22–5807 (6th
Cir. Sept. 13, 2022). This Athletics NPRM is not
based on the 2021 Bostock Notice of Interpretation.
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1972, 86 FR 27429 (May 20, 2021),
https://www.govinfo.gov/content/pkg/
FR-2021-05-20/pdf/2021-10629.pdf.
OCR expressed particular interest in
comments about discrimination based
on gender identity in educational
environments, as well as other topics.
Id. The virtual hearing was held from
June 7, 2021, to June 11, 2021, during
which time OCR received live
comments through the virtual hearing
platform and written comments via
email. Over 280 students, parents,
teachers, faculty members, school staff,
administrators, and other members of
the public provided live comments, and
OCR received over 30,000 written
comments by email. The transcript of
live comments is available at https://
www2.ed.gov/about/offices/list/ocr/
docs/202106-titleix-publichearingcomplete.pdf, and the written comments
may be viewed at https://www2.ed.gov/
about/offices/list/ocr/publichearing.html.
In addition to soliciting live and
written comments as part of the June
2021 Title IX Public Hearing, OCR also
conducted listening sessions with
stakeholders expressing a variety of
views, including individuals and
organizations focused on Title IX and
athletics. Among these stakeholders
were students, including current and
former student-athletes; parents; athletic
associations; organizations representing
elementary schools, secondary schools,
and postsecondary institutions;
organizations representing teachers,
administrators, parents, and current and
former student-athletes; attorneys
representing students and schools; State
officials; Title IX Coordinators and other
school administrators; and individuals
who provide Title IX training to schools.
In the June 2021 Title IX Public
Hearing, in listening sessions, and in
correspondence, stakeholders posed
questions and presented concerns
regarding Title IX’s application to
determinations of whether a student is
eligible to participate on a recipient’s
male or female athletic team,
particularly in light of the shifting OCR
guidance on this issue and the divergent
approaches to such eligibility criteria
taken by State laws and organizations
that set eligibility rules for specific
sports. Stakeholders highlighted the
many benefits that students gain from
participating on athletic teams,
including learning skills that promote
personal health, wellness, and
leadership; being part of a team; and
fostering social relationships.
Some stakeholders asserted that
allowing students to participate on male
or female athletic teams that align with
their gender identity is consistent with
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Title IX’s guarantee of
nondiscrimination on the basis of sex.
In the same vein, some stakeholders
stressed that preventing transgender
students from participating on their
schools’ male or female athletic teams
consistent with their gender identity
deprives those students of the benefits
of athletic team participation because it
is not tenable to require a transgender
girl or woman to participate on a male
athletic team or a transgender boy or
man to participate on a female athletic
team. Some stakeholders expressed
concern that some policies and State
laws restricting athletic eligibility to a
student’s sex assigned at birth may also
disqualify intersex students (generally,
persons with variations in physical sex
characteristics, including variations in
anatomy, hormones, chromosomes or
other traits that differ from expectations
generally associated with male and
female bodies) from participating on
male or female teams consistent with
their gender identity if the sex assigned
to those students at birth does not
accurately reflect their gender identity.
Stakeholders also expressed concern
that certain policies and State laws
might preclude nonbinary students
(generally, persons who do not identify
as exclusively male or female) from
participating on either male or female
teams, including in contexts in which
those students’ school records or other
official documents indicate a nonbinary
gender marker and the school’s
eligibility criteria limit participation to
students with a male or female gender
marker. By contrast, other stakeholders
expressed concerns that participation of
some transgender girls and women on
female athletic teams could deprive
other girls and women of access to the
benefits associated with participation on
athletic teams. Many stakeholders
representing a range of views urged the
Department to clarify whether and, if so,
how students can participate on male or
female athletic teams that align with
their gender identity while ensuring fair
and safe sports participation for all.
The Department’s July 2022 NPRM
proposed amendments to the
Department’s Title IX regulations would
clarify, among other things, that Title IX
prohibits discrimination based on
gender identity and sex characteristics
in federally funded education programs
and activities. See 87 FR 41571. In
addition, the proposed amendments
would clarify that (a) in the limited
circumstances in which Title IX or the
Department’s Title IX regulations permit
different treatment or separation on the
basis of sex, a recipient must not carry
out such different treatment or
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separation in a manner that
discriminates on the basis of sex by
subjecting a person to more than de
minimis harm, unless otherwise
permitted by Title IX or the
Department’s Title IX regulations; and
(b) a policy or practice that prevents a
person from participating in an
education program or activity consistent
with their gender identity subjects a
person to more than de minimis harm
on the basis of sex. Id. at 41534–37. The
July 2022 NPRM also recognized that
despite Title IX’s general prohibition on
sex discrimination against an
individual, there are circumscribed
situations, including with respect to
sex-related eligibility criteria for male or
female teams, in which Title IX or its
regulations may permit a recipient to
separate students on the basis of sex,
even when doing so may cause some
students more than de minimis harm.
Id. at 41537. The July 2022 NPRM did
not propose any changes to the
Department’s Title IX regulation
governing athletics, however, instead
reserving that issue for this Athletics
NPRM. Id.
The Department now proposes
amending its Title IX regulations to help
ensure implementation of Title IX in
what Congress has recognized as the
unique context of athletics. Cf.
Education Amendments of 1974 section
844 (specifying a requirement for
‘‘reasonable provisions considering the
nature of particular sports’’ in the
Department’s Title IX regulations
regarding intercollegiate athletics). The
Department acknowledges the interest
of some stakeholders in preserving
current athletic-team policies and
procedures regarding sex-related
eligibility criteria and in avoiding
potential additional costs to comply
with the proposed regulation. However,
the Department believes that the current
regulations are not sufficiently clear to
ensure Title IX’s nondiscrimination
requirement is fulfilled if a recipient
adopts or applies sex-related criteria
that would limit or deny students’
eligibility to participate on male or
female athletic teams consistent with
their gender identity. This clarification
regarding Title IX’s application to sexrelated eligibility criteria is particularly
important as some States have adopted
criteria that categorically limit
transgender students’ eligibility to
participate on male or female athletic
teams consistent with their gender
identity. See, e.g., Ind. Code section 20–
33–13–4 (2022) (‘‘A male, based on a
student’s biological sex at birth in
accordance with the student’s genetics
and reproductive biology, may not
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participate on an athletic team or sport
designated under this section as being a
female, women’s, or girls’ athletic team
or sport.’’); W. Va. Code section 18–2–
25d(c)(1) (2021) (designating
participation on interscholastic,
intercollegiate, intramural, or club
athletic teams sponsored by any public
secondary school or state institution of
higher education as based on ‘‘biological
sex’’); Idaho Code section 33–6203
(2020) (same). In so doing, these State
laws have created additional
uncertainty for stakeholders regarding
what Title IX permits and requires with
respect to male and female teams.
The standard proposed in this
Athletics NPRM is consistent with the
framework in the current § 106.41 for
providing overall equal athletic
opportunity regardless of sex for
students who seek to participate in a
recipient’s athletic program. Taking into
account extensive stakeholder questions
about Title IX’s application to sexrelated eligibility criteria for male and
female athletic teams, the Department’s
proposed regulation would provide that
if a recipient adopts or applies sexrelated 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, be
substantially related to the achievement
of an important educational objective
and minimize harms to students whose
opportunity to participate on a male or
female team consistent with their
gender identity would be limited or
denied. The proposed regulation would
continue to recognize, as has current
§ 106.41(b) since its promulgation in
1975, that some sex-related distinctions
in sports are permissible as long as a
recipient ensures overall equal athletic
participation opportunity regardless of
sex.
Further, it is the Department’s intent
that the severability clauses set out in
the relevant subparts of 34 CFR part 106
would remain applicable to the
proposed changes in this Athletics
NPRM. It is also the Department’s
position that the proposed regulation, if
adopted as a final rule, would serve an
important purpose that is distinct from
other provisions in part 106 and would
operate independently of other
regulatory provisions, such that any
potential invalidity of the proposed
regulation should not affect any other
provisions in part 106.
Significant Proposed Regulation:
Section 106.41 Athletics
Statute: Title IX prohibits
discrimination on the basis of sex under
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any education program or activity
receiving Federal financial assistance.
20 U.S.C. 1681(a). The Department has
the authority to regulate with regard to
discrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance,
specifically under 20 U.S.C. 1682 and
generally under 20 U.S.C. 1221e-3 and
3474. And the Javits Amendment
reflects that the Department has
discretion to tailor its regulations in the
athletics context that it might not have
in other contexts and to adopt
‘‘reasonable provisions considering the
nature of particular sports.’’ Education
Amendments of 1974 section 844.
Current regulations: Paragraph (a) of
current § 106.41 establishes a baseline
rule that no person shall, on the basis
of sex, be excluded from participation
in, be denied the benefits of, be treated
differently from another person, or
otherwise be discriminated against in
any interscholastic, intercollegiate, club
or intramural athletics offered by a
recipient, and that no recipient may
provide any such athletics separately on
the basis of sex. Section 106.41(b) sets
forth an exception that permits a
recipient to offer separate male and
female athletic teams when selection for
such teams is based upon competitive
skill or the activity involved is a contact
sport. Paragraph (b) also states that
when a recipient operates or sponsors a
team in a particular sport for members
of one sex but operates or sponsors no
such team for members of the excluded
sex, and athletic opportunities for
members of the excluded sex have
previously been limited, members of the
excluded sex must be allowed to try out
for the team offered unless the sport
involved is a contact sport. The same
paragraph lists examples of contact
sports. Paragraph (c) states that even
when a recipient offers separate male
and female athletic teams, a recipient
must provide overall equal athletic
opportunity for the sexes.
Proposed regulation: The Department
proposes adding to § 106.41(b) a
standard 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 team consistent with
their gender identity. Specifically, the
Department proposes renumbering
current § 106.41(b) as proposed
§ 106.41(b)(1) and adding a new
paragraph as proposed § 106.41(b)(2) to
state that any such criteria a recipient
adopts or applies 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)
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minimize harms to students whose
opportunity to participate on a male or
female team consistent with their
gender identity would be limited or
denied.
Reasons: In light of its review of Title
IX and its regulations, stakeholder
feedback, and developments in case law
and in the sex-related eligibility criteria
set by some school districts, States, and
other organizations (including athletic
associations and sport governing
bodies), the Department proposes
amending its regulations to provide
greater clarity as to the standard that
applies 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 athletic team
consistent with their gender identity.
The proposed regulation is consistent
with § 106.41’s framework for providing
equal opportunity regardless of sex in a
recipient’s athletic program as a whole
and with Congress’s direction that the
Title IX regulations include ‘‘reasonable
provisions’’ regarding athletics that
‘‘consider[ ] the nature of particular
sports.’’ Education Amendments of 1974
section 844.
Development of the Proposed
Regulation
In listening sessions, correspondence,
and through the June 2021 Title IX
Public Hearing, OCR received feedback
from stakeholders on the educational
and other benefits of student
participation on athletic teams and the
application of Title IX’s
nondiscrimination mandate to all
student-athletes. The feedback also
focused on how schools can provide
nondiscriminatory athletic
opportunities for all students and on
factors that influence fairness in
competition and prevention of sportsrelated injury. Amidst this variety of
views, OCR heard that students,
recipients, athletic associations, and
others need clarity from the Department
about the legal standards that would
apply to ensure Title IX’s
nondiscrimination requirement is
fulfilled if a recipient adopts or applies
sex-related criteria that would limit or
deny students’ eligibility to participate
on male or female athletic teams
consistent with their gender identity. In
developing the proposed regulation, the
Department reviewed this stakeholder
input as well as Title IX’s statutory text
and purpose, Title IX’s regulatory
framework, courts’ interpretations of
Title IX and the U.S. Constitution, and
the existing approaches to sex-related
eligibility criteria taken by a wide range
of States, school districts and other
organizations, including athletic
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associations and sport governing
bodies.7
The Text and Purpose of Title IX
In developing the proposed
regulation, the Department considered
Title IX’s statutory text, purpose, and
legislative history, as well as the current
regulatory framework and constitutional
principles.
As noted above, Congress has been
clear that Title IX prohibits sex
discrimination in a recipient’s athletic
program and, recognizing the unique
circumstances of athletics, that the Title
IX regulations should include
‘‘reasonable provisions’’ governing
athletic activities that ‘‘consider[ ] the
nature of particular sports.’’ Education
Amendments of 1974 section 844. The
Department’s now-longstanding Title IX
regulation on athletics therefore reflects
the unique circumstances of athletics,
including intercollegiate athletics. The
Department’s proposed regulation
would similarly reflect the unique
circumstances of athletics by
considering whether sex-related criteria
adopted or applied by a recipient to
determine eligibility for male and
female athletic teams, for each sport,
level of competition, and grade or
education level, are substantially related
to the achievement of an important
educational objective and minimize
harms to students whose opportunity to
participate on a male or female team
consistent with their gender identity
would be limited or denied.
The proposed regulation would thus
preserve and build on the current
regulatory framework the Department
has long used to evaluate whether a
recipient offers its students an equal
opportunity to participate in athletics
consistent with Title IX. It is also
consistent with current § 106.41, which
prohibits sex discrimination in a
recipient’s athletic program in
paragraph (a) and recognizes in
7 The policies of athletic associations, sport
governing bodies, State agencies, and other entities,
or excerpts thereof referenced throughout this
document are examples of various approaches that
these entities have taken regarding sex-related
eligibility criteria for male and female athletic
teams. The Department includes them here to
illustrate various points in this preamble; it does
not require a recipient to adopt or apply the
examples mentioned here, and their inclusion in
this preamble is not an endorsement by the
Department of any policy or practice, nor does it
indicate whether the policy or practice would
comply with the standard proposed in this
Athletics NPRM. Any links to websites from outside
of the Department are provided for the reader’s
convenience only. The Department does not control
or guarantee the accuracy, relevance, timeliness, or
completeness of this outside information. Examples
and links included in this preamble do not
constitute legal advice, create legal obligations, or
impose new requirements.
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paragraph (c) that while a recipient
must provide equal opportunity
regardless of sex in its athletic program
as a whole, it may, in limited and
defined circumstances set out in
paragraph (b), deny individual students
the opportunity to participate on a
particular male or female team on the
basis of their sex. In addition, the
proposed regulation is consistent with
OCR’s longstanding policy of
encouraging compliance with the
Department’s Title IX athletics
regulation ‘‘in a flexible manner that
expands, rather than limits, student
athletic opportunities.’’ See Dear
Colleague Letter: Athletic Activities
Counted for Title IX Compliance (Sept.
17, 2008) (2008 Dear Colleague Letter on
Title IX and Athletic Activities), https://
www2.ed.gov/about/offices/list/ocr/
letters/colleague-20080917.pdf; see also
1979 Policy Interpretation, 44 FR 71414
(noting that effectively accommodating
the interests and abilities of male and
female students in the selection of
sports and levels of competition will, in
most cases, ‘‘entail development of
athletic programs that substantially
expand opportunities for women to
participate and compete at all levels’’).
The proposed regulation is also
informed by constitutional principles.
In particular, Federal courts’ equal
protection analysis provides a helpful
framework for evaluating when certain
sex-based classifications may be
justified. See, e.g., 34 CFR 106.34(b)
(setting out Title IX regulatory standard
for single-sex classes that reflects certain
aspects of Federal courts’ equal
protection framework); U.S. Dep’t of
Educ., Office for Civil Rights, Final
Rule: Nondiscrimination on the Basis of
Sex in Education Programs or Activities
Receiving Federal Financial Assistance,
71 FR 62530, 62533 (Oct. 25, 2006)
https://www.govinfo.gov/content/pkg/
FR-2006-10-25/pdf/E6-17858.pdf.
Notably, however, because the scope of
Title IX differs from the scope of the
Equal Protection Clause, the
Department’s current and proposed
Title IX regulations, while informed by
constitutional principles, exclusively
implement Title IX. See 71 FR 62533.
Court Decisions Regarding Sex-Related
Eligibility Criteria
In developing the proposed
regulation, the Department also
reviewed court decisions analyzing
allegations that various policies
governing transgender students’
eligibility to participate on male or
female athletic teams discriminate
impermissibly based on sex. Several
courts have found that excluding
transgender students from participating
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on athletic teams consistent with their
gender identity impermissibly
discriminates against these students
based on sex. In one case, for example,
a Federal district court preliminarily
enjoined a school district from
excluding a fifth-grade transgender girl
from the girls’ softball team under an
Indiana law that categorically precluded
transgender girls and women from being
treated consistent with their gender
identity for purposes of female athletic
teams. A.M. v. Indianapolis Pub. Schs.,
No. 1:22–cv–01075–JMS–DLP, 2022 WL
2951430, at *14 (S.D. Ind. July 26,
2022), vacated as moot, (S.D. Ind. Jan.
19, 2023).8 Adopting the Supreme
Court’s reasoning in Bostock and
following controlling Seventh Circuit
authority, the court held that the
plaintiff had ‘‘established a strong
likelihood that she will succeed on the
merits of her Title IX claim’’ that the
Indiana law discriminated against her
on the basis of sex. Id. at * 11. As the
court explained, prohibiting an
individual from playing on a team
consistent with their gender identity
‘‘‘punishes that individual for his or her
gender non-conformance,’ which
violates the clear language of Title IX.’’
Id. (citations omitted). The court also
stated that under current case law, this
conclusion was ‘‘not even a close call.’’
Id.
In another case, a Federal district
court preliminarily enjoined the State of
Idaho from enforcing a state law that
‘‘excludes transgender women from
participating on women’s sports teams.’’
Hecox v. Little, 479 F. Supp. 3d 930,
943, 988 (D. Idaho 2020), appeal argued,
No. 20–35815 (9th Cir. Nov. 22, 2022).
In Hecox, the court found that, in light
of ‘‘the dearth of evidence in the record
to show excluding transgender women
from women’s sports supports sex
equality, provides opportunities for
women, or increases access to college
scholarships,’’ the transgender student
plaintiff was likely to succeed in
establishing that the Idaho statute
violates her right to equal protection. Id.
at 978–85. The court explained that the
Idaho law, which draws a distinction
based on the quasi-suspect
classifications of sex and transgender
8 On January 19, 2023, after the parties filed a
Joint Stipulation to Dismiss Case Because of
Mootness indicating that the plaintiff had enrolled
in a charter school not operated by defendant
Indianapolis Public Schools, the Federal district
court issued an Acknowledgement of Dismissal and
vacated the preliminary injunction because of
mootness. A.M., No. 1:22–cv–01075–JMS–DLP (S.D.
Ind. Jan. 19, 2023). In its Acknowledgement of
Dismissal, the court did not repudiate its prior
determination that the plaintiff had a strong
likelihood of success on the merits of her Title IX
claim, as discussed in this preamble.
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status, must, under the Supreme Court’s
established equal protection doctrine,
‘‘serve important governmental
objectives and must be substantially
related to achievement of those
objectives.’’ Id. at 973 (quoting Craig v.
Boren, 429 U.S. 190, 197 (1976)).
Although the court recognized that
‘‘‘redressing past discrimination against
women in athletics and promoting
equality of athletic opportunity between
the sexes’ is ‘a legitimate and important
governmental interest’ justifying rules
excluding males from participating on
female teams,’’ it concluded that that
interest does ‘‘not appear to be
implicated by allowing transgender
women to participate on women’s
teams.’’ Id. at 976 (quoting Clark ex rel.
Clark v. Ariz. Interscholastic Ass’n, 695
F.2d 1126, 1131 (9th Cir. 1982)). On this
point, the court noted both that the
small population of transgender athletes
would not ‘‘substantially displace’’
cisgender female athletes and that ‘‘it is
not clear that transgender women who
suppress their testosterone have
significant physiological advantages
over cisgender women.’’ Id. at 978. As
the court explained, ‘‘[t]hat the Act
essentially bars consideration of
circulating testosterone illustrates the
Legislature appeared less concerned
with ensuring equality in athletics than
it was with ensuring exclusion of
transgender women athletes.’’ Id. at 984.
The court’s equal protection analysis
in Hecox is instructive and relevant to
the Department’s proposed Title IX
regulation in several respects: the court
examined interests commonly proffered
to defend policies denying transgender
students the opportunity to participate
on male or female athletic teams
consistent with their gender identity,
considered whether such policies
actually advance any important
objectives, and further considered the
effects of those policies on students’
equal opportunity to participate in and
benefit from their schools’ education
programs and activities. See, e.g.,
Hecox, 479 F. Supp. 3d at 977 (‘‘[T]he
Act’s categorical exclusion of
transgender women and girls entirely
eliminates their opportunity to
participate in school sports. . . .’’).
Conversely, another Federal district
court upheld a West Virginia law
against a challenge brought by a
transgender girl who, because of the
law, was excluded from participating on
her middle school’s girls athletic teams,
concluding that the law satisfied both
equal protection and Title IX. B.P.J.,
2023 WL 111875, at * 8, * 10.9 The court
9 As explained in Note 5 above, the district court
initially issued a preliminary injunction barring
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agreed with the plaintiff that the law
classified students based on sex. It then
observed, in its equal protection
analysis, that the State could ‘‘allow
transgender individuals to play on the
team with which they, as an individual,
are most similarly situated at a given
time,’’ but concluded that the
categorical ban on participation by
transgender students consistent with
their gender identity was substantially
related to the State’s asserted interest in
providing equal athletic opportunity for
girls and women. Id. at *8. With respect
to Title IX, the court observed that: (1)
current § 106.41(b) permits sex-separate
athletic teams; (2) ‘‘ ‘the motivation for
the promulgation of the regulation’ was
to increase opportunities for women and
girls in athletics’’; and (3) § 106.41(b)’s
‘‘endorsement of sex separation in
sports refers to biological sex.’’ Id. at *9
(citation omitted).
With regard to the court’s third
observation, the Department notes that
current § 106.41(b) permits a recipient
to offer ‘‘teams for members of each
sex,’’ without defining that term, and
also notes the longstanding application
of this provision to permit a recipient to
offer teams for women and men, and for
girls and boys. The Department
recognizes that although the court in
B.P.J. interpreted the Title IX statute and
§ 106.41(b) in a way that permits
categorical exclusion of transgender
students from participating consistent
with their gender identity, other courts
have set out a different interpretation of
Title IX and its implementing
regulations governing sex-separation in
education programs and activities, see,
e.g., Grimm v. Gloucester Cnty. Sch. Bd.,
972 F.3d 586, 618–19 (4th Cir.), as
amended (Aug. 28, 2020), cert. denied,
141 S. Ct. 2878 (2021); A.M., 2022 WL
2951430, at *7–11, underscoring the
value of this proposed rulemaking in
clarifying the Department’s
interpretation of its Title IX
regulations.10
enforcement of a State law that would ban the
plaintiff from participating on girls’ sports teams at
school based on the strong likelihood that the West
Virginia law violated the Equal Protection Clause
and Title IX. B.P.J., 550 F. Supp. 3d 347, 357. On
January 5, 2023, the District Court issued an order
dissolving the preliminary injunction and finding
the West Virginia law did not violate the Equal
Protection Clause or Title IX. 2023 WL 111875, at
*8, *10. The plaintiff appealed and a panel of the
Fourth Circuit enjoined the District Court’s January
5, 2023, Order pending the outcome of the appeal,
see B.P.J. v. W. Va. State Bd. of Educ., No. 23–1078
(4th Cir. Feb. 22, 2023), which the DefendantsAppellees have petitioned the U.S. Supreme Court
to vacate. See Application to Vacate the Injunction
Entered by the United States Court of Appeals for
the Fourth Circuit, W. Va. State Bd. of Educ. v.
B.P.J., No. 22A800 (U.S. Mar. 9, 2023).
10 A decision of the United States Court of
Appeals for the Eleventh Circuit likewise highlights
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Courts have not addressed Title IX’s
application to intersex or nonbinary
student-athletes. The Department
believes the proposed regulation would
provide an appropriate Title IX
framework for analyzing a recipient’s
adoption or application of sex-related
criteria that limit or deny an intersex
student’s eligibility to participate on a
male or female team consistent with
their gender identity. When applying
sex-related criteria to nonbinary
students, a recipient may need to
determine whether the criteria do, in
fact, limit or deny a nonbinary student’s
eligibility to participate on a male or
female team consistent with their
gender identity to determine whether
the proposed regulation would apply.
the need for the Department to clarify Title IX’s
application to transgender students in those limited
and discrete contexts in which Title IX or its
implementing regulations otherwise allow a
recipient to separate students on the basis of sex.
See Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th
791 (11th Cir. 2022) (en banc). In Adams, the court
determined a school policy that excluded a
transgender boy from using the male restroom at his
school did not violate the Equal Protection Clause,
id. at 810–11, or Title IX, id. at 811–17. The Adams
court recognized that the school’s restroom policy
classified students based on sex. Id. at 801. The
court held, however, that the term ‘‘sex’’ in 34 CFR
106.33, which allows a recipient to ‘‘provide
separate toilet . . . facilities on the basis of sex,’’
should be understood to mean ‘‘biological sex,’’ see
Adams, 57 F.4th at 814–15. It further concluded
that the regulation therefore permitted a recipient
to deny transgender students access to restrooms
consistent with their gender identity, without
considering the distinct sex-based harms that such
students suffer from such exclusion. For the
Department’s views on some of the issues raised in
Adams, see En Banc Brief for the United States as
Amicus Curiae in Support of Plaintiff-Appellee and
Urging Affirmance at 22–28, Adams, 57 F.4th 791
(No. 18–13592), https://www.justice.gov/crt/casedocument/file/1458461/download. See, e.g., id. at
22 (recognizing that the Department’s Title IX
regulation allows for sex-separate restrooms, but
noting that the regulation does not speak to how it
applies to transgender students).
The claims in Adams did not involve athletics or
the athletics regulation that is the subject of this
Athletics NPRM (34 CFR 106.41). The Department
notes the court’s statement in dicta, in reference to
the Department’s current athletics regulation, that
‘‘equating ‘sex’ to ‘gender identity’ or ‘transgender
status’ would also call into question the validity of
sex-separated sports teams,’’ Adams, 57 F.4th at
816–17, differs from the approach proposed in this
Athletics NPRM. As discussed above, the
Department’s longstanding view is that sex-separate
teams can in some instances advance Title IX’s
goals, and that as a general matter, a recipient may
offer male and female athletic teams as long as they
provide overall equal athletic opportunity
consistent with Title IX’s nondiscrimination
guarantee. The proposed regulation would not alter
this position and instead, for reasons discussed
throughout this preamble, would provide the
necessary clarity to help ensure that recipients
continue to provide equal opportunity for students,
consistent with Title IX, on their male and female
athletic teams.
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Existing Approaches to Eligibility
Criteria for Male and Female Teams
In addition to the considerations just
discussed in developing this proposed
regulation, the Department considered a
variety of existing approaches to
eligibility criteria for male and female
teams that affect students’ opportunity
to participate on such teams consistent
with their gender identity. Some States,
as well as many school districts and
athletic associations, have for many
years adopted or applied eligibility
criteria that do not restrict students from
participating on male or female athletic
teams consistent with their gender
identity. Other States and organizations
have, particularly in recent years,
adopted policies that exclude some or
all transgender students from
participating on male or female athletic
teams consistent with their gender
identity or have adopted eligibility
criteria that relate to birth certificates,
physical examinations, or medical
treatment.
At the postsecondary level, for
example, the National Collegiate
Athletic Association (NCAA) in 2022
replaced its longstanding policy
describing transgender students’
eligibility to participate on a male or
female college athletic team in the
NCAA with a sport-by-sport approach.
See NCAA, Transgender StudentAthlete Participation Policy (Jan. 2022)
(NCAA 2022 Policy); https://
www.ncaa.org/sports/2022/1/27/
transgender-participation-policy.aspx;
NCAA, 2010 NCAA Policy on
Transgender Student-Athlete
Participation (2010), https://
ncaaorg.s3.amazonaws.com/inclusion/
lgbtq/INC_TransgenderStudentAthlete
ParticipationPolicy.pdf. The NCAA
2022 Policy calls for its member colleges
and universities to follow the criteria for
transgender students’ participation in
college sports set by national bodies
governing individual sports, which are
subject to review by the NCAA’s
Committee on Competitive Safeguards
and Medical Aspects of Sports. In
announcing these changes, the NCAA
emphasized its support for preserving
transgender students’ opportunity to
participate in team sports and the
importance of inclusive, fair, safe, and
respectful environments for competition
across college sports. See NCAA, Board
of Governors Updates Transgender
Participation Policy (Jan. 19, 2022),
https://www.ncaa.org/news/2022/1/19/
media-center-board-of-governorsupdates-transgender-participationpolicy.aspx.
This change in the NCAA’s policy
follows a similar change by the
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22869
International Olympic Committee (IOC)
regarding athletes’ participation in highlevel international competition. IOC,
IOC Framework on Fairness, Inclusion,
and Non-Discrimination on the Basis of
Gender Identity and Sex Variations
(Nov. 2021) (IOC Framework), https://
stillmed.olympics.com/media/
Documents/News/2021/11/IOCFramework-Fairness-Inclusion-Nondiscrimination-2021.pdf; IOC, IOC
Consensus Meeting on Sex
Reassignment and Hyperandrogenism
(Nov. 2015), https://stillmed.
olympic.org/Documents/Commissions_
PDFfiles/Medical_commission/2015-11_
ioc_consensus_meeting_on_sex_
reassignment_and_hyperandrogenismen.pdf. The IOC Framework recognizes
‘‘the need to ensure that everyone,
irrespective of their gender identity or
sex variations, can practise sport in a
safe, harassment-free environment that
recognises and respects their needs and
identities’’ and that its new ‘‘principles
. . . aim to ensure that competition [in
male and female] categories is fair and
safe and that athletes are not excluded
solely on the basis of their transgender
identity or sex variations.’’ IOC
Framework at 1, 2. The IOC Framework
encourages bodies governing individual
sports—‘‘particularly those in charge of
organising elite-level competition’’—to
develop eligibility criteria for sexseparate competition that ‘‘tak[e] into
consideration the nature of each sport,’’
id. at 1, to work together to ‘‘advance
inclusion and prevent discrimination
based on gender identity and/or sex
variations,’’ id. at 2, and to ensure that
any eligibility restrictions are
‘‘evidence-based’’ and account for any
unique competitive advantage or risk
associated with a specific sport, id. at 4.
The IOC Framework also provides that
‘‘until evidence . . . determines
otherwise, athletes should not be
deemed to have an unfair or
disproportionate competitive advantage
due to their sex variations, physical
appearance and/or transgender status.’’
Id. at 4.
In response to the shift by the NCAA
and IOC to a sport-specific approach,
several sport governing bodies that set
criteria for certain non-school-based
national and international competition,
as well as postsecondary athletic
competition, have announced plans to
review their policies or have adopted or
applied new policies regarding sexrelated eligibility criteria. Governing
bodies in gymnastics, rowing, and
volleyball, for example, have announced
policies that allow athletes to
participate consistent with their gender
identity at lower or non-elite levels of
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competition, such as in competitions
where athletes are not competing for a
place on a national team to represent the
United States in international
competition, or where the rules of
international sport governing bodies
would not apply. See, e.g., USA
Gymnastics, Transgender & Non-Binary
Athlete Inclusion Policy at 2 (Apr.
2022), https://usagym.org/PDFs/About
USAGymnastics/transgender_policy.pdf
(‘‘Transgender and non-binary athletes
in levels other than Elite are permitted
to compete without restriction in the
gender category with which they
identify.’’); USRowing, Gender Identity
Policy (Feb. 13, 2023), https://
usrowing.org/documents/2022/11/28/
Gender_Identity_Policy_021323.pdf
(‘‘Athletes at the youth level (youth,
junior, high school, scholastic, [and
certain other levels, excluding collegiate
and international competition]) shall be
allowed to participate in a rowing
activity in accordance with their
expressed gender identity irrespective of
the sex listed on the athlete’s birth
certificate or student records, and
regardless of whether the athlete has
undergone any medical treatment
. . . .’’); USA Volleyball, Gender
Competition Guidelines (2022–23
Season), https://usavolleyball.org/
about/gender-guidelines (last visited
Apr. 1, 2023) (‘‘[n]o restrictions’’ for
transgender girls ages 12 and under
seeking to play on girls’ teams outside
of international competition).
In the international, non-school-based
context, some sport governing bodies
have adopted policies restricting
participation in high-level international
women’s competition to female athletes
who have not experienced male
puberty, see, e.g., International
Swimming Federation (FINA), Policy on
Eligibility for the Men’s and Women’s
Competition Categories (June 19, 2022)
(FINA Policy on Eligibility), https://
resources.fina.org/fina/document/2022/
06/19/525de003-51f4-47d3-8d5a716dac5f77c7/FINA-INCLUSIONPOLICY-AND-APPENDICES-FINAL.pdf; or restricting participation in
international events and setting of
certain recognized world records to
those who satisfy specific testosterone
suppression criteria for a set period of
time, see, e.g., Union Cycliste
Internationale, Eligibility Regulations for
Transgender Athletes (June 22, 2022)
(UCI Eligibility Regulations), https://
assets.ctfassets.net/761l7gh5x5an/
Et9v6Fyux9fWPDpKRGpY9/96949e5f
7bbc8e34d536731c504ac96f/
Modification_Transgender_Regulation_
22_Juin_2022_ENG.pdf. In addition, at
least one international governing body
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has announced plans to revisit its
existing criteria with the stated goal of
creating inclusive policies that allow for
safe participation and fairness in highlevel international competition. See,
e.g., World Lacrosse, World Lacrosse
Forms Partnership with National Center
for Transgender Equality to Create
Trans-Inclusive Participation Policy
(June 9, 2022), https://world
lacrosse.sport/article/world-lacrosseforms-partnership-with-national-centerfor-transgender-equality.
At the secondary school level, State
athletic associations have discussed
whether and how to adopt sex-related
eligibility criteria against the backdrop
of State and Federal law, schools’
experiences with transgender students’
participation in athletics, and the
context and purpose of interscholastic
athletics. See, e.g., Luke Modrovsky,
Transgender Athletes—Participation,
Equity and Competition (May 12, 2022),
https://www.nfhs.org/articles/
transgender-athletes-participationequity-and-competition. A report on
these discussions includes an
observation from a statewide athletic
official that although competition is an
integral aspect of athletics, the
opportunity to participate in athletics at
the elementary and secondary levels
also serves other educational purposes,
including learning to work as a team
and building skills. See id. (quoting the
executive director of a State athletic
association explaining that ‘‘the purpose
of interscholastic activities is meant to
be education-based and not for the sole
purpose of achieving scholarships,
championship titles and wider
recognition in the sport’’ and that
‘‘[i]nterscholastic activities remain an
opportunity to develop a connection
with teammates and the school
community, in addition to social,
emotional, physical and cognitive
development’’).
A number of State athletic
associations that oversee interscholastic
athletics at the secondary school level,
as well as school districts, have adopted
policies permitting transgender students
to participate on athletic teams
consistent with their gender identity
with minimal or no restrictions. See,
e.g., Wash. State Interscholastic
Activities Ass’n, Gender Diverse Youth
Sport Inclusivity Toolkit at 8, 11 (2021),
https://wiaa.com/ConDocs/Con1914/
GenderDiverseToolkit.pdf (‘‘All students
should have the opportunity to
participate in WIAA athletics and/or
activities in a manner that is consistent
with their gender identity. . . .
Athletes will participate in programs
[offered separately for boys and girls]
consistent with their gender identity
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. . . .’’); R.I. Interscholastic League,
Rules & Regulations at art. 3, § 3(B)
(2022), https://www.riil.org/page/3033
(‘‘The RIIL has concluded that it would
be fundamentally unjust and contrary to
applicable state and federal laws, to
preclude a student from participation on
a gender specific sports team that is
consistent with the public gender
identity of that student for all other
purposes.’’); L.A. Unified Sch. Dist.,
Policy Bulletin: Gender Identity and
Students—Ensuring Equity and
Nondiscrimination at section II.H.2
(May 17, 2019), https://
achieve.lausd.net/cms/lib/CA01000043/
Centricity/Domain/383/BUL6224.2%20Transgender%20Policy
%205%2013%2019.pdf (‘‘Participation
in competitive athletics, intramural
sports, athletic teams, competitions and
contact sports shall be facilitated in a
manner consistent with the student’s
gender identity. . . .’’). Other State
athletic associations governing
interscholastic sports at the middle
school and high school level have
adopted sex-related criteria that may
restrict some students from participating
on male or female teams consistent with
their gender identity. See, e.g., N.M.
Activities Ass’n, Eligibility Bylaws
section 6.1 (July 1, 2022), https://
www.nmact.org/file/Section_6.pdf
(‘‘Participating students are required to
compete in the gender listed on their
original or amended birth certificate.’’);
Wis. Interscholastic Athletic Ass’n,
Transgender Participation Policy (2018),
https://www.wiaawi.org/Portals/0/PDF/
Eligibility/WIAAtransgenderpolicy.pdf
(requiring, among other things, that
transgender girls undergo one year of
testosterone suppression therapy to be
eligible to participate on a female team).
The Department finds the work of
these organizations on this issue to be
informative to the extent the
organizations aim to balance important
interests, minimize harm to students
whose opportunity to participate on a
male or female team consistent with
their gender identity would be limited
or denied, and take account of the sport,
level of competition, and grade or
education level of students.
Opportunity To Participate on Male and
Female Teams Consistent With Gender
Identity
In light of the many positive benefits
of participation in school athletics
discussed above, the Department’s
proposed regulation reflects the
understanding that students may be
harmed significantly if a school denies
them the opportunity to participate in
its athletic program consistent with
their gender identity. As discussed
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elsewhere in this preamble,
participation on a team that is
inconsistent with a student’s gender
identity is not a viable option for many
students. See, e.g., A.M., 2022 WL
2951430, at * 11 (describing a policy
that prohibited students from
participating on teams consistent with
their gender identity as ‘‘punish[ing]’’
those students); Hecox, 479 F. Supp. 3d
at 977 (‘‘Participating in sports on teams
that contradict one’s gender identity is
equivalent to gender identity conversion
efforts, which every major medical
association has found to be dangerous
and unethical.’’ (internal quotation
marks and citation omitted)).
Federal and State courts also have
identified additional, specific harms to
transgender students from being
excluded from team participation
consistent with their gender identity,
which the Department recognizes are
distinct from the harms to students who
are denied the opportunity to
participate on a particular team based
on sex under the circumstances
permitted in the Department’s
longstanding athletics regulation. See,
e.g., A.M., 2022 WL 2951430, at * 6, * 12
(noting that ‘‘[p]laying softball helps to
lessen the distressing symptoms of
gender dysphoria that A.M. suffers from
and has allowed her to experience life
more fully as a girl’’ and ‘‘[s]oftball
participation has resulted in a better
self-image and confidence for A.M.’’
whereas ‘‘prohibiting A.M. from playing
on the girls’ softball team will ‘out’ her
to her classmates’’ and ‘‘undermine her
social transition’’); Hecox, 479 F. Supp.
3d at 987 (finding that a State law
preventing transgender women from
participating on women’s athletic teams
sponsored by public schools would
harm the plaintiff, a transgender
woman, by denying her the opportunity
to try out for and compete on women’s
teams, subjecting her to the State’s
moral disapproval of her identity, and
subjecting her to the possibility of
embarrassment, harassment, and
invasion of privacy through having to
verify her sex); Roe v. Utah High Sch.
Activities Ass’n, No. 220903262, 2022
WL 3907182, at * 9–10 (Utah 3d Jud.
Dist. Aug. 19, 2022) (describing
irreparable harm to mental and physical
health that the plaintiffs, three
transgender girls, ‘‘have suffered, and
will continue to suffer’’ as a result of a
Utah law banning transgender girls from
participating on girls’ athletic teams and
recognizing that ‘‘the stigma caused by
the Ban has been immediate’’).
Federal courts have also recognized
that, because of these harms, excluding
transgender students from participating
on male or female athletic teams
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consistent with their gender identity can
violate Title IX’s prohibition on sex
discrimination. See, e.g., A.M., 2022 WL
2951430, at * 11 (finding strong
likelihood of success on the merits of
the Title IX claim because prohibiting
an individual from playing on a team
consistent with their gender identity
‘‘‘punishes that individual for his or her
gender non-conformance,’ which
violates the clear language of Title IX’’
(citation omitted)); see also Hecox, 479
F. Supp. 3d at 977, 987 (in a case
involving an equal protection claim,
finding that a transgender college
student faced ‘‘irreparable harm’’ from
Idaho law categorically barring
transgender girls and women from
participating on girls’ or women’s teams
and that the law ‘‘entirely eliminates
their opportunity to participate in
school sports’’). As noted above, the
court in B.P.J. reached a different
conclusion about the permissibility
under Title IX of a ban on transgender
students participating in team sports
consistent with their gender identity,
based on its view that the current
regulation would permit such an
exclusion and that transgender girls
could try out for the boys’ teams. 2023
WL 111875, at * 9 (citing 34 CFR
106.41(b) and (c)).
Elements of the Proposed Regulation
The proposed regulation would
require that 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. The
proposed regulation would not affect a
recipient’s discretion under current
§ 106.41(b) to offer separate male and
female athletic teams when selection is
based on competitive skill or the
activity involved is a contact sport. The
following discussion separately
addresses key elements of the proposed
regulation.
Eligibility Criteria Covered by the
Proposed Regulation
The proposed regulation would
govern a narrow category of athletic
eligibility criteria: only those 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. Many schools
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have adopted criteria that govern
students’ eligibility to participate on
athletic teams that are unrelated to sex,
such as attendance or academic
standing requirements (e.g., minimum
grade-point average for all studentathletes). Criteria such as these are
outside the scope of the proposed
regulation.
By contrast, eligibility criteria would
fall within the scope of the proposed
regulation if they are sex-related (e.g.,
they relate to how a student’s sex is
determined for team-eligibility
purposes, including by imposing
eligibility requirements related to a
student’s sex characteristics) and they
would limit or deny students’ eligibility
to participate on a male or female team
consistent with their gender identity.
These criteria could include, for
example, a requirement limiting or
denying a student’s eligibility for a male
or female team based on a sex marker
on an identification document, such as
a birth certificate, passport, or driver’s
license. Criteria requiring physical
examinations or medical testing or
treatment related to a student’s sex
characteristics would also fall within
the proposed regulation’s scope if the
results of such examinations or testing
or requiring such treatment could be
used to limit or deny a student’s
eligibility to participate consistent with
their gender identity. Such criteria, like
other sex-related eligibility criteria,
would have to adhere to the proposed
regulation’s requirements, including the
requirement to minimize harms.
The proposed regulation would not
prohibit all uses of sex-related criteria;
rather, it would require that if such
criteria limit or deny a student’s
eligibility to participate on a male or
female team consistent with their
gender identity, those criteria, for each
sport, level of competition, and grade or
education level, would have to be
substantially related to the achievement
of an important educational objective
and minimize harms to students whose
opportunity to participate on a male or
female team consistent with their
gender identity would be limited or
denied.
Additionally, the proposed regulation
would apply only to those sex-related
criteria that would ‘‘limit or deny’’
students’ eligibility to participate
consistent with their gender identity.
Sex-related criteria would ‘‘limit’’
eligibility if, for example, they do not
allow transgender students to
participate fully on a male or female
team consistent with their gender
identity (e.g., by permitting a student to
participate in some but not all
competitions). Sex-related criteria
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would ‘‘deny’’ students’ eligibility to
participate consistent with gender
identity if they foreclose students’
opportunity to participate on male or
female teams consistent with their
gender identity (e.g., by requiring
transgender students to participate
consistent with their sex assigned at
birth or by prohibiting transgender girls
who have undergone endogenous
puberty from participating on girls’
teams).
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Substantially Related to the
Achievement of an Important
Educational Objective
The proposed regulation would
require that sex-related criteria be
‘‘substantially related to the
achievement of an important
educational objective’’ if those criteria
would limit or deny students’ eligibility
to participate on male or female athletic
teams consistent with their gender
identity. Proposed § 106.41(b)(2) does
not specify the objectives that a
recipient may assert and instead would
implement Title IX’s guarantee of equal
opportunity in education by, in part,
specifying that the criteria must serve an
important educational objective.
The Department’s proposed regulation
is similar to the approach in the
Department’s current Title IX regulation
governing single-sex classes, 34 CFR
106.34(b), which permits certain
recipients to offer single-sex classes
when the single-sex nature of the class
is ‘‘based on the recipient’s important
objective’’ and ‘‘substantially related to
achieving that objective.’’ That
regulation limits a recipient to one of
two specific important educational
objectives.11 Although the proposed
athletics regulation would not limit the
important educational objectives a
recipient may seek to achieve, ensuring
fairness in competition and prevention
of sports-related injury are examples of
possible important educational
objectives that recipients have asserted
and might assert in the future. As with
the single-sex classes regulation, this
proposed regulation is informed by case
law interpreting the Equal Protection
Clause, which requires public schools to
demonstrate that any sex-based
11 Specifically, § 106.34(b)(1)(i) provides that a
recipient must choose one of these two important
educational objectives: ‘‘(A) To improve
educational achievement of its students, through a
recipient’s overall established policy to provide
diverse educational opportunities, provided that the
single-sex nature of the class or extracurricular
activity is substantially related to achieving that
objective; or (B) To meet the particular, identified
educational needs of its students, provided that the
single-sex nature of the class or extracurricular
activity is substantially related to achieving that
objective.’’
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classification they seek to impose is
substantially related to the achievement
of an important governmental objective.
See Virginia, 518 U.S. at 532–33; Hecox,
479 F. Supp. 3d at 973; see also 71 FR
62533.
The Department notes that a recipient
could not satisfy the proposed
regulation’s requirement that criteria be
substantially related to achieving an
important educational objective if its
objective is communicating or codifying
disapproval of a student or a student’s
gender identity. See, e.g., Hecox, 479 F.
Supp. 3d. at 987 (describing Idaho’s
restriction as impermissibly
communicating the State’s moral
disapproval of the transgender
plaintiff’s identity); cf. Romer v. Evans,
517 U.S. 620, 634–35 (1996) (‘‘ ‘[I]f the
constitutional conception of ‘‘equal
protection of the laws’’ means anything,
it must at the very least mean that a bare
. . . desire to harm a politically
unpopular group cannot constitute a
legitimate governmental interest.’ ’’
(alterations and emphasis in original)
(quoting Dep’t of Agric. v. Moreno, 413
U.S. 528, 534 (1973))). Nor may a
recipient adopt sex-related criteria
solely for the purpose of excluding
transgender students from sports,
Hecox, 479 F. Supp. 3d at 984–85
(noting the State of Idaho failed to
identify a legitimate interest served by
the State law that State and athletic
association rules did not already
address, ‘‘other than an invalid interest
of excluding transgender women and
girls from women’s sports entirely,
regardless of their physiological
characteristics’’), or to require
adherence to sex stereotypes, Virginia,
518 U.S. at 533 (affirming that States
‘‘must not rely on overbroad
generalizations about the different
talents, capacities, or preferences of
males and females’’), or solely for the
purpose of administrative convenience.
See Wengler v. Druggists Mut. Ins. Co.,
446 U.S. 142, 151–52 (1980) (rejecting
justification for providing death benefit
to women only based on assertion that
‘‘it is more efficient to presume
[women’s] dependency [on men . . . ]
than to engage in case-to-case
determination’’); Frontiero v.
Richardson, 411 U.S. 677, 689–90
(1973).
An asserted purpose also would not
satisfy the proposed regulation if, rather
than being a genuine educational
objective of the recipient, it is a pretext
for an impermissible interest in singling
out transgender students for disapproval
or harm. See, e.g., Hecox, 479 F. Supp.
3d at 984 (noting Idaho ‘‘[l]egislature
appeared less concerned with ensuring
equality in athletics than it was with
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ensuring exclusion of transgender
athletes’’); cf. Virginia, 518 U.S. at 533
(explaining that a State’s justification for
sex-related differential treatment ‘‘must
be genuine, not hypothesized or
invented post hoc in response to
litigation’’).
Separately, interests in fairness in
competition and in preventing sportsrelated injury to students have been
advanced by some stakeholders and
discussed by Federal courts in
evaluating sex-related eligibility criteria
for limiting or denying students’
participation on male or female teams
consistent with their gender identity.
Thus, the Department anticipates that a
recipient might assert fairness in
competition or prevention of sportsrelated injury as an important
educational objective in its athletic
programs, particularly for older students
in competitive athletic programs.
The Department recognizes that
competition is an integral part of many
team sports, particularly at the high
school and collegiate level, and that
schools have an interest in ensuring
competition is fair, including that
competitors meet the relevant criteria
for competition in their league, such as
age and skill level, following applicable
rules, and otherwise engaging in fair
play. See, e.g., 2008 Dear Colleague
Letter on Title IX and Athletic Activities
(considering competition, among other
factors, when determining whether an
activity is a sport that can be counted as
part of a recipient’s athletic program for
the purpose of evaluating Title IX
compliance and noting that competitive
interscholastic and intercollegiate
athletic opportunities are generally
‘‘governed by a specific set of rules of
play . . . which include objective,
standardized criteria by which
competition must be judged’’). Likewise,
the Department recognizes that schools
have an interest in the prevention of
sports-related injury. As some
stakeholders expressed, ensuring fair
competition and prevention of sportsrelated injury does not necessarily
require schools to adopt or apply sexrelated criteria that would limit or deny
a student’s eligibility to participate on a
male or female team consistent with
their gender identity. As discussed
above, many schools do not impose
such restrictions, and some sport
governing bodies impose such
restrictions only for older students in
highly competitive settings. See, e.g.,
USRowing, Gender Identity Policy at 1;
FINA Policy on Eligibility.
Some stakeholders expressed their
views that fairness in competition
depends on having generally applicable
competition rules and cannot be
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determined based on whether a
particular student wins or loses, and
that schools and athletic associations
use various strategies to address injuryrelated concerns, recognizing that
student-athletes vary widely in size and
strength on any given team. Strategies
noted by stakeholders included
appropriate coaching and training,
requiring use of protective equipment,
and specifying rules of play, all of
which can protect against sports-related
injury without imposing sex-related
eligibility criteria that would limit or
deny student participation consistent
with their gender identity. Some of
these stakeholders thus asserted that the
goals of fair competition and prevention
of sports-related injury could be
achieved while allowing all students the
opportunity to participate on athletic
teams consistent with their gender
identity, particularly at pre-collegiate
and college club and intramural levels.
On the other hand, other stakeholders
noted that they would view eligibility
rules that permit participation by
transgender students as unfair or unsafe
and asserted that some female students
might choose not to participate on
female teams under such rules. Many of
these stakeholders focused their
comments on participation by
transgender girls and women who have
undergone endogenous puberty,
resulting in potentially unfair
advantages in size, weight, and strength
differences and potentially posing a risk
of injury to others. Other stakeholders
countered, as noted above, that there are
significant differences in size, weight,
and strength among girls and women
who are not transgender. Some of these
stakeholders also indicated that
mitigating measures would be sufficient
to address any risk of unfair advantage
in competition or risk of sports-related
injury on female teams.
Courts have found fairness in
competition to be an important
educational objective in the context of
determining whether schools could
provide sex-separate athletic teams. For
example, in Clark ex rel. Clark v.
Arizona Interscholastic Ass’n, 695 F.2d
1126, 1131 (9th Cir. 1982), the Ninth
Circuit recognized the importance of
‘‘providing equal opportunities for
women’’ athletes and agreed with the
Arizona Interscholastic Association that
male students would displace female
students in volleyball ‘‘to a substantial
extent’’ if not excluded from
competition. And, in Hecox, the court
and all parties recognized Idaho’s
important governmental interest in
promoting sex equality by providing
female athletes from elementary school
through college a fair opportunity ‘‘to
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demonstrate their skill, strength, and
athletic abilities’’ in school-sponsored
athletic competition. 479 F. Supp. 3d at
978.
The Department recognizes fairness in
competition and prevention of sportsrelated injury can be important
educational objectives. This recognition
is consistent with stakeholder feedback,
case law, and current § 106.41(b), which
permits teams to be separated by sex
where selection for such teams is based
upon competitive skill or the activity
involved is a contact sport. Although
many schools presently work to ensure
fairness in competition and prevention
of sports-related injury while allowing
all students to participate on male or
female teams consistent with their
gender identity, the proposed regulation
would permit a recipient to take a
different approach as long as the criteria
used to determine who can participate
on a particular male or female athletic
team are substantially related to
achieving that important educational
objective and comply with the proposed
regulation’s other requirements.
Substantial Relationship Requirement
Under the Department’s proposed
regulation, 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 would need to be, for
each sport, level of competition, and
grade or education level, ‘‘substantially
related’’ to achieving an important
educational objective.
As discussed above, the substantial
relationship requirement, like the
achievement of an important
educational objective, is similar to the
standard in the Department’s Title IX
regulation governing access to single-sex
classes, 34 CFR 106.34, and informed by
case law interpreting the Equal
Protection Clause. See Virginia, 518 U.S.
at 532–33; Hecox, 479 F. Supp.3d at
978. Under the proposed regulation,
consistent with courts’ equal protection
analysis, sex-related criteria would be
substantially related to achievement of
an important educational objective if
there is a ‘‘direct, substantial
relationship between’’ a recipient’s
objective and the means used to achieve
that objective, see Miss. Univ. for
Women v. Hogan, 458 U.S. 718, 724
(1982), and if the criteria do not rely on
overly broad generalizations about the
talents, capacities, or preferences of
male and female students, see, e.g.,
Virginia, 518 U.S. at 533; Hecox, 479 F.
Supp. 3d at 982 (‘‘[I]t appears the
‘absolute advantage’ between
transgender and cisgender women
athletes [claimed by defendants] is
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based on overbroad generalizations
without factual justification.’’).
Under proposed § 106.41(b)(2), for
example, a recipient would be
permitted, consistent with Title IX’s
requirement to provide overall equal
athletic opportunity for students
regardless of sex, to rely on fairness in
competition as an important educational
objective to justify its use of sex-related
criteria that would limit or deny
students’ eligibility to participate
consistent with their gender identity—
but only if those criteria are
substantially related to ensuring fairness
in competition in that particular sport at
the applicable level of competition and
grade or education level. Cf. Clark, 695
F.2d at 1127 (upholding policy
excluding boys from girls’ high school
volleyball teams to preserve
participation opportunities for girls). As
courts have noted, for example, it would
not be reasonable to assume that all
transgender girls and women are
similarly situated in their physical
abilities to cisgender boys and men. See,
e.g., Hecox, 479 F. Supp. 3d. at 978.
Therefore, criteria that assume all
transgender girls and women possess an
unfair physical advantage over
cisgender girls and women in every
sport, level of competition, and grade or
education level would rest on a
generalization that would not comply
with the Department’s proposed
regulation. The court in Hecox made a
similar point when it rejected the
premise of an Idaho law that, in every
circumstance, ‘‘transgender women and
girls have ‘an absolute advantage’ over
non-transgender girls’’ because evidence
in the record ‘‘undermine[s] this
conclusion.’’ 479 F. Supp. 3d at 980–81.
The court found that although ‘‘[t]he
Equal Protection Clause does not require
courts to disregard the physiological
differences between men and women,’’
the specific principles that support ‘‘sex
separation in sport’’ generally ‘‘do not
appear to hold true for women and girls
who are transgender.’’ Id. at 976–77
(discussing Clark, 695 F.2d at 1129,
1131). Criteria that categorically exclude
all transgender girls and women from
participating on any female athletic
teams, for example, would not satisfy
the proposed regulation because, in
taking a one-size-fits-all approach, they
rely on overbroad generalizations that
do not account for the nature of
particular sports, the level of
competition at issue, and the grade or
education level of students to which
they apply.
A State trial court in Utah observed
that ‘‘the evidence suggest[ed] that being
transgender is not ‘a legitimate accurate
proxy’ for athletic performance.’’ Utah
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High Sch. Activities Ass’n, 2022 WL
3907182, at *8 (citations omitted). That
court explained that ‘‘[m]any
transgender girls—including two of the
plaintiffs in this case—medically
transition at the onset of puberty,
thereby never gaining any potential
advantages that the increased
production of testosterone during male
puberty may create.’’ Id. The court also
noted that other transgender girls ‘‘may
simply have no discernible advantage in
any case, depending on the student’s
age, level of ability, and the sport in
which they wish to participate.’’ Id. In
short, although fairness in competition
may be an important educational
objective, the recipient’s sex-related
eligibility criteria must be substantially
related to the actual achievement of that
objective. That substantial relationship
could not be established by reliance on
overbroad generalizations based on sex.
Similarly, although some stakeholders
expressed a concern that allowing any
transgender girls and women to
participate in sports consistent with
their gender identity could displace
cisgender girls and women from
participating in sports, other
stakeholders observed that very few
female student-athletes are transgender
and, as just discussed, transgender
students do not necessarily have greater
physical or athletic ability than
cisgender students that would affect
cisgender students’ equal opportunity to
participate in a recipient’s athletic
program. Some courts have also
observed that the very small number of
transgender girls and women who are
student-athletes must be considered
when evaluating claims that those
athletes pose an outsized risk to
participation by and opportunities for
cisgender girls and women who are
student-athletes. See, e.g., Utah High
Sch. Activities Ass’n, 2022 WL 3907182,
at *8 (finding ‘‘no support for a claim
‘that allowing transgender women to
compete on women’s teams would
substantially displace female athletes’ ’’
(quoting Hecox, 479 F. Supp. 3d at 977–
78)).
The substantial relationship
requirement thus would mean that if a
recipient adopts or applies sex-related
criteria that would limit or deny
students’ eligibility to participate on a
male or female team consistent with
their gender identity, the justification
for those criteria must be based on
‘‘reasoned analysis rather than through
the mechanical application of
traditional, often inaccurate,
assumptions.’’ Miss. Univ. for Women,
458 U.S. at 726; see also, e.g., Clark, 695
F.2d at 1129 (explaining that sex-based
criteria would not be substantially
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related to promoting fairness in
competition if based on overbroad
generalizations ‘‘without factual
justification’’ (citing Schlesinger v.
Ballard, 419 U.S. 498, 508 (1975), and
Miss. Univ. for Women, 458 U.S. 718)).
If a school can achieve its objective
using means that would not limit or
deny a student’s participation consistent
with their gender identity, its use of sexrelated criteria may be pretextual rather
than substantially related to
achievement of that important
educational objective. Thus, under
proposed § 106.41(b)(2), whether the
objective could be accomplished
through alternative criteria that would
not limit or deny a student’s eligibility
to participate on a male or female team
consistent with their gender identity
would be relevant to the analysis.
Federal courts have taken a similar
approach in evaluating challenges to
sex-based classifications under the
Equal Protection Clause by considering
whether government entities could
achieve the same goal using other
means. For example, the Supreme Court
noted that it was uncontested that the
Virginia Military Institute could achieve
its goal of maintaining its adversative
training program with some adjustments
short of denying admission to all female
applicants. Virginia, 518 U.S. at 550
n.19; see also, e.g., Sessions v. MoralesSantana, 582 U.S. 47, 63 n.13 (2017)
(‘‘[O]ur decisions reject measures that
classify unnecessarily and overbroadly
by gender when more accurate and
impartial lines can be drawn.’’); Orr v.
Orr, 440 U.S. 268, 283 (1979) (rejecting
the use of gender-based classifications
where an important governmental
interest is ‘‘as well served by a genderneutral classification’’ because a genderbased classification ‘‘carries with it the
baggage of sexual stereotypes’’); Caban
v. Mohammed, 441 U.S. 380, 393 & n.13
(1970) (rejecting sex-based distinction
while noting that the State could
achieve its interests ‘‘through numerous
other mechanisms more closely attuned
to those interests’’).
The Department notes that to satisfy
the substantial relationship
requirement, a recipient would not be
permitted to rely on false assumptions
about transgender students. For
example, criteria that exclude
transgender students from participation
on a male or female team based on a
false assumption that transgender
students are more likely to engage in
inappropriate conduct than other
students would not satisfy the proposed
regulation because the criteria would
not be substantially related to achieving
an important educational objective. See,
e.g., Parents for Privacy v. Barr, 949
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F.3d 1210, 1228–29 (9th Cir. 2020)
(rejecting Title IX claim because ‘‘[t]he
use of facilities for their intended
purpose, without more, does not
constitute an act of harassment simply
because a person is transgender’’); Doe
v. Boyertown Sch. Dist., 897 F.3d 518,
534 (3d Cir. 2018) (rejecting claim that
a transgender student’s presence in sexseparate facilities violated cisgender
students’ Title IX rights and
distinguishing cases involving
voyeurism and sexual harassment as not
analogous). Moreover, nothing in Title
IX precludes a school from taking
nondiscriminatory steps to prevent
misconduct and protect privacy for all
students.
Grade or Education Level
The Department’s proposed regulation
would require that sex-related eligibility
criteria that would limit or deny a
student’s eligibility to participate on a
male or female team consistent with
their gender identity must, for each
grade or education level, be
substantially related to the achievement
of an important educational objective.
This requirement would recognize that
students of varying grades or education
levels are not necessarily similarly
situated with respect to the purposes of
team participation, the harms resulting
from exclusion from participation, their
athletic skills development, other
developmental factors, or their legal
status as a minor or adult. Thus, any
sex-related eligibility criteria must
account for those factors that affect
students in the particular grade or
education level to which the criteria
would apply.
Although competition is an aspect of
many team sports across grades and
education levels, athletic teams offered
by schools for students in earlier grades,
including those in elementary and
middle school, also present an
important opportunity to introduce
students to new activities for which
little or no prior experience is required,
acquire basic skills associated with a
particular sport, and develop
introductory skills related to physical
fitness, leadership, and teamwork. See
Kelsey Logan & Steven Cuff, Am. Acad.
Pediatrics Council on Sports Med. &
Fitness, Organized Sports for Children,
Preadolescents, and Adolescents,
Pediatrics (June 2019), https://
publications.aap.org/pediatrics/article/
143/6/e20190997/37135/OrganizedSports-for-Children-Preadolescents-and
(associating participation in organized
sports in childhood with long-term
participation in organized sports,
development of life skills, and a high
level of physical fitness later in life).
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Reinforcing this point, the Department’s
review of the publicly available athletic
association policies for all 50 States and
the District of Columbia and Puerto Rico
indicates that the overwhelming
majority of State athletic associations do
not regulate athletic competition
between elementary school teams.
Similarly, the Department’s review
found that only about half of State
athletic associations regulate athletic
activities in middle school, and many of
those that regulate make clear the
mission of athletics in those grades is to
encourage broad participation, basic
skills development, and other aspects of
student well-being. See, e.g., Wis.
Interscholastic Athletic Ass’n, Middle
Level Handbook (2022–23) at 2, https://
www.wiaawi.org/Portals/0/PDF/
Publications/jrhandbook.pdf (‘‘The
developmental characteristics of young
adolescents should provide the
foundation for the middle level athletic
programs and philosophy. . . .
Programs should promote behaviors that
include cooperation, sportsmanship and
personal improvement. Winning is not
the primary goal of the program. . . .
The program should be open to all
young adolescents and provide a
positive experience. All young
adolescents should have the
opportunity to participate, play and
experience skill improvement.’’); Iowa
High Sch. Athletic Ass’n, Junior High
Sports Manual (2021–23) at 1, https://
www.iahsaa.org/wp-content/uploads/
2022/08/2021-23-Junior-High-Manual8.17.22.pdf (‘‘The primary purpose of
the junior high school athletic program
is participation, with emphasis on the
development of skills, sportsmanship,
and citizenship of all students.’’); S.C.
High Sch. League, 2022–23 Middle
School Rules & Regulations at 1, https://
schsl.org/archives/7950 (‘‘The program
must be justified on a basis of
contribution to the desirable
development of the participants. The
welfare of the youth concerned is of
greatest importance. All other needs and
problems should be secondary.’’).
One State athletic association
explained, for example, that member
schools’ goals for offering
interscholastic athletic competition and
activities for middle school students
should encourage broad participation
for students in middle school in
recognition of the ‘‘great range of
individual differences among boys and
girls of this age (age; body build;
interest; ability; experience; health, and
the stages of physiological, emotional
and social maturity).’’ S.C. High Sch.
League, 2022–23 Middle School Rules &
Regulations at 1, https://schsl.org/
archives/7950. To that end, it directs
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schools to approach competition ‘‘from
as broad a base as possible to offer
experience to many boys and girls.’’ Id.
The Department recognizes that
recipients that offer male and female
teams to students in early grades have
a significant interest in providing all of
their students an opportunity to gain
foundational physical, emotional,
academic, and interpersonal benefits,
and other life skills associated with
team sports participation regardless of
sex. See Kelsey Logan & Steven Cuff,
Am. Acad. Pediatrics Council on Sports
Med. & Fitness, Organized Sports for
Children, Preadolescents, and
Adolescents, Pediatrics (June 2019)
(describing the many benefits of youth
participation, including children,
preadolescents, and adolescents, in
organized sports); Anne C. Fletcher et
al., Structured Leisure Activities in
Middle Childhood: Links to Well-Being,
J. Community Psychology 31–6, 641–59
(2003) (associating greater psychosocial
development with participation in sport
activities in elementary school). Barring
students from participating on teams
consistent with their gender identity
may impede them from developing an
interest in or aptitude for team sports or
for athletic activity altogether, including
into adulthood, resulting in negative
health and well-being consequences and
long-term loss of opportunity. See, e.g.,
Sandra D. Simpkins et al., Participating
in Sport and Music Activities in
Adolescence: The Role of Activity
Participation and Motivational Beliefs
During Elementary School, 39 J. Youth
Adolescence 1368 (2009), https://
link.springer.com/article/10.1007/
s10964-009-9448-2 (concluding that
elementary school children who did not
participate in sports were unlikely to
participate when they become
adolescents); cf. A.M., 2022 WL
2951430, at *11 (describing distress and
other harms associated with prohibiting
students from playing on a team
consistent with their gender identity).
Accordingly, the Department
currently believes that there would be
few, if any, sex-related eligibility criteria
applicable to students in elementary
school that could comply with the
proposed regulation, and that it would
be particularly difficult for a recipient to
comply with the proposed regulation by
excluding students immediately
following elementary school from
participating on male or female teams
consistent with their gender identity.
The Department welcomes comments
on whether any sex-related eligibility
criteria can comply with this proposed
regulation when applied to students in
these earlier grades and, if so, the types
of criteria that may comply with the
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proposed regulation. The Department
anticipates that at the high school and
college level, schools’ application or
adoption of sex-related eligibility
criteria to ensure an important
educational objective, such as fairness
in competition in their athletic
programs, may be more likely to satisfy
the proposed regulation.
Level of Competition
The proposed regulation would
specify that any sex-related criteria that
would limit or deny a student’s
eligibility to participate on a male or
female team must be substantially
related to achieving an important
educational objective for each level of
competition to which it applies.
This aspect of the proposed regulation
would recognize that school-based
athletic team offerings vary widely
across the United States. To the extent
teams are offered for students at earlier
grades and levels of education, many
schools prioritize broad participation
and teaching basic skills. These teams
are often not highly selective, including
‘‘no-cut’’ teams that allow all students to
join the team and participate, and rarely
provide elite competition opportunities,
as discussed above in Existing
Approaches to Eligibility Criteria for
Male and Female Teams. Some schools
also offer teams at lower levels of
competition that are designed to
encourage broad participation and help
students build basic skills (e.g.,
intramural, junior varsity, unified) that
often permit all or most interested
students to participate without an
expectation of high-level competition
(e.g., varsity). Other teams, more
typically for older students who have
advanced skills, including at many
postsecondary institutions, are more
selective and engage in elite
competition. See generally NCAA,
Overview, https://www.ncaa.org/sports/
2021/2/16/overview.aspx (last visited
Mar. 29, 2023) (describing levels of
intercollegiate competition for member
colleges and universities).
Some stakeholders urged the
Department to develop regulations
governing the participation of students
on male or female teams consistent with
their gender identity in a manner that
accounts for different levels of
competition. In a view expressed by
some stakeholders, a one-size-fits-all
policy approach would not be
appropriate because athletic
participation is organized differently at
various levels of competition with some
male and female teams open to all
students and some that accommodate a
larger roster of students with widely
varying skill levels. Some stakeholders
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also noted that at high levels of
competition in high school, students
may be competing with each other for
limited scholarship and recruitment
opportunities. Some stakeholders urged
that it is appropriate for sex-related
criteria that govern the participation of
athletes consistent with gender identity
to account for differences at these levels
of competition.
The Department is also aware of
distinctions that national and
international sport governing bodies
draw among athletes at different levels
of competition. In some cases, the
criteria that these organizations require
transgender athletes to meet to
participate on a male or female team
consistent with their gender identity
differ based on the level of competition.
As noted above, for example, USA
Gymnastics permits transgender athletes
to participate ‘‘without restriction’’ in
all competition activities below the elite
level. USA Gymnastics, Transgender &
Non-Binary Athlete Inclusion Policy at
2. Similarly, World Athletics, the
international governing body for track
and field events, has adopted
regulations that apply only at the World
Rankings competition level or to
athletes who wish to have their
performance at a lower competition
level recognized as a World Record.
World Athletics permits member
federations to set their own regulations
to determine eligibility to participate in
lower level competitions consistent
with an athlete’s gender identity. See
World Athletics, Rule C3.5A—Eligibility
Regulations for Transgender Athletes
(Mar. 2023) (Rules 2.1 and 2.5), https://
www.worldathletics.org/about-iaaf/
documents/book-of-rules.
In light of these examples, the
Department proposes a standard that
would specifically require a recipient
that adopts or applies sex-related
eligibility criteria for male and female
teams to account for the level of
competition at issue. As noted above,
the Department expects sex-related
eligibility criteria to be more common
and more likely to satisfy the proposed
regulation at higher grade levels,
particularly high school and
postsecondary levels.
Sport
The proposed regulation would
specify that any sex-related criteria for
eligibility to participate on a male or
female team must be substantially
related to achievement of an important
educational objective for each sport to
which it applies. This requirement is
consistent with the Javits Amendment’s
direction that the Title IX regulations
include reasonable athletics provisions
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that ‘‘consider[ ] the nature of particular
sports.’’ Education Amendments of 1974
section 844.
The Department proposes this
requirement because not all differences
among students confer a competitive
advantage or raise concerns about
sports-related injury in every sport, and
‘‘[c]lassification on strict grounds of sex,
without reference to actual skill
differentials in particular sports, would
merely echo ‘archaic and overbroad
generalizations.’ ’’ Att’y Gen. v. Mass.
Interscholastic Athletic Ass’n, 393 NE2d
284, 293 (Mass. 1979) (citations omitted)
(rejecting the athletic association’s
argument that it was justified in
imposing a complete ban on male
athletes participating on female athletic
teams because of an assertion of the
male athletes’ competitive advantage in
all sports); see also, e.g., Utah High Sch.
Activities Ass’n, 2022 WL 3907182, at
*8–9 (finding that challenged Utah law
had a substantial likelihood of violating
the State constitution because it
‘‘prevents all transgender girls from
competing on all girls’ teams, regardless
of any potentially relevant factors, such
as . . . the nature of the particular
sport’’ (emphasis in original)).
School districts and postsecondary
institutions offer a wide selection of
sports (e.g., badminton, baseball,
basketball, bowling, curling, football,
golf, gymnastics, riflery, skiing, soccer,
softball, swimming and diving, tennis,
trap shooting, volleyball, water polo).
See Nat’l Fed’n of State High Sch.
Ass’ns, High School Athletics
Participation Survey (2021–22), https://
www.nfhs.org/media/5989280/2021-22_
participation_survey.pdf. These and
other sports that schools offer each have
unique rules and prioritize varied skills
and attributes. Likewise, students on
any given team will typically vary
significantly in skills, size, strength, and
other attributes that may be relevant to
their chosen sport or position within a
sport. Thus, under the proposed
regulation, any sex-related eligibility
criteria for male or female teams that
would limit or deny participation
consistent with gender identity would
need to be substantially related to
achieving an important educational
interest in relation to the particular
sport to which the criteria apply.
Overbroad generalizations that do not
account for the nature of particular
sports would not be sufficient to comply
with the proposed regulation.
The proposed regulation also would
address issues raised in feedback the
Department received from stakeholders
who suggested that any regulations the
Department might adopt should account
for variations among sports.
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Stakeholders noted that outside the
educational setting, national and
international sport governing bodies set
rules for participation and competition
that differ by sport. As discussed above,
the NCAA and the IOC have directed
the entities that set rules for
participation and competition in
intercollegiate and international
sporting events recognized by the NCAA
and the IOC respectively to adopt a
sport-specific approach for any sexrelated eligibility criteria to participate
on male or female teams consistent with
gender identity. As the IOC explained,
sport governing bodies must ensure that
any sex-related eligibility criteria
included in their policies ‘‘tak[e] into
consideration the nature of each sport,’’
IOC Framework at 1, and account for
any sport-specific competitive
advantage or risk, id. at 4. The
Department notes, however, that the
proposed regulation would not
necessarily require schools to adopt
distinct eligibility criteria for each sport;
rather, where sex-related criteria would
limit or deny students’ eligibility to
participate consistent with their gender
identity, the criteria must satisfy the
proposed regulation as applied to that
sport.
The proposed regulation would
therefore provide that, in light of the
variation among sports, a recipient that
adopts or applies sex-related eligibility
criteria for male or female teams must
demonstrate that its criteria are
substantially related to achievement of
an important educational objective for
the particular sport to which they apply.
Harm Minimization Requirement
Proposed 106.41(b)(2) would also
require that, if a recipient adopts or
applies sex-related criteria that would
limit or deny students’ eligibility to
participate on a male or female team
consistent with their gender identity, it
must do so in a way that minimizes
harms to students whose opportunity to
participate on a male or female team
consistent with their gender identity
would be limited or denied.
As explained earlier in this preamble,
Title IX generally prohibits a recipient
from excluding students from an
education program or activity on the
basis of sex when the exclusion causes
more than de minimis harm. When
students are separated or treated
differently based on sex, a recipient
risks harming those students in a way
that would ordinarily violate Title IX.
See 34 CFR 106.31(b)(4) and (7)
(providing that, ‘‘[e]xcept as provided in
this subpart, in providing any aid,
benefit, or service to a student, a
recipient shall not, on the basis of sex
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. . . [s]ubject any person to separate or
different rules of behavior, sanctions, or
other treatment . . . [or] [o]therwise
limit any person in the enjoyment of
any right, privilege, advantage, or
opportunity’’); see also, e.g., Grimm, 972
F.3d at 617 (recognizing that school’s
imposition of different rules on
transgender students than other
students in their use of school facilities
was ‘‘sufficient to constitute harm under
Title IX’’). But see Adams, 57 F.4th at
814–15 (holding school district policy
that excludes transgender students from
restrooms that correspond to their
gender identity does not violate Title IX
regulations because of the language of
34 CFR 106.33). The July 2022 NPRM
proposed amendments to the
Department’s Title IX regulations that
would clarify that a recipient must not
separate or treat students differently in
a manner that discriminates on the basis
of sex by subjecting a person to more
than de minimis harm unless otherwise
permitted by Title IX or the
Department’s Title IX regulations. 87 FR
41534–37. Those proposed amendments
would further clarify that a policy or
practice that prevents a person from
participating in an education program or
activity consistent with their gender
identity subjects a person to more than
de minimis harm on the basis of sex. Id.
Consistent with the Javits
Amendment, the Department’s Title IX
regulations have taken a different
approach in the athletics context,
permitting a recipient to offer male and
female athletic teams to promote equal
opportunity for all athletes, even though
some harm may be caused when a
recipient offers sex-separate athletic
teams. In particular, current § 106.41(b),
in place since 1975, permits a recipient
to offer male and female athletic teams
under certain circumstances, and such
teams may in those circumstances
exclude some students on the basis of
sex. This longstanding requirement
reflects the Department’s recognition
that a recipient’s provision of male and
female teams can advance rather than
undermine overall equal opportunity in
the unique context of athletics by
creating meaningful participation
opportunities that were historically
lacking for women and girls. See 1979
Policy Interpretation, 44 FR 71421 (‘‘If
women athletes, as a class, are receiving
opportunities and benefits equal to
those of male athletes, individuals
within the class should be protected
thereby.’’).
The Department also recognizes that
overall equal opportunity does not
require identical programs for male and
female athletes, id. at 71421–22, and
thus a recipient may, and has always
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been permitted to, deny students the
opportunity to participate on a
particular male or female team based on
sex under certain circumstances. For
example, a recipient may, in some
circumstances, offer a volleyball team
for girls but not boys, and a boy who
would like to play on the school’s
volleyball team may not be able to do
so for reasons discussed above. But the
permissibility of sex-separate teams
does not exempt a recipient from its
responsibility not to otherwise
discriminate based on sex when offering
opportunities to participate on those
teams.
A school policy of separating students
on the basis of particular reproductive
or other sex-based characteristics, see,
e.g., B.P.J., 2023 WL 111875, at *2
(evaluating West Virginia’s
classification of students based on
‘‘reproductive biology and genetics at
birth’’), will not materially harm the
vast majority of students, as those sexrelated criteria permit them to
participate on athletic teams consistent
with their gender identity. But when
sex-related criteriaLGB do limit or deny
a student’s eligibility to participate on a
male or female athletic team consistent
with their gender identity, the student is
subjected to harms based on sex that are
distinct from the harms otherwise
permitted under the Department’s
longstanding athletics regulation (e.g., a
girl who is not selected for the girls’
soccer team based on her athletic skills
or a boy who is not eligible to play on
the girls’ volleyball team when the
recipient does not offer a boys’ or
coeducational volleyball team). Criteria
that limit or deny students’ eligibility to
participate in sports consistent with
their gender identity can force
individual students to disclose that they
are transgender, which can be
‘‘extremely traumatic’’ and ‘‘undermine
[a student’s] social transition,’’ A.M.,
2022 WL 2951430, at *11–12; subject
them to ‘‘embarrassment, harassment,
and invasion of privacy through having
to verify [their] sex,’’ Hecox, 479 F.
Supp. 3d at 987; and can communicate
disapproval of transgender students,
‘‘which the Constitution prohibits’’ in
the context of public schools, Hecox,
479 F. Supp. 3d at 987 (citing Lawrence
v. Texas, 539 U.S. 558, 582–83 (2003)).
Further, such sex-related exclusion
leaves affected students with no viable
opportunity to participate in athletics if
the only other option is to participate on
a team that does not align with their
gender identity. Hecox, 479 F. Supp. 3d
at 977 (citing evidence that, for
transgender students, participating on a
team that is inconsistent with their
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gender identity is equivalent to
medically harmful gender identity
conversion efforts).
The current regulations, however, do
not expressly address these distinct
harms caused by sex-related criteria that
limit or deny students’ eligibility to
participate on male or female teams
consistent with their gender identity.
Proposed § 106.41(b)(2) would account
for such harms by requiring that such
criteria be adopted and applied in a way
that minimizes the harms caused to
those students. As a result, even sexrelated criteria that are substantially
related to the achievement of an
important educational objective would
violate proposed § 106.41(b)(2) if the
recipient can reasonably adopt or apply
alternative criteria that would be a less
harmful means of achieving the
recipient’s important educational
objective. For example, a recipient
might adopt sex-related criteria that
require documentation of studentathletes’ gender identity based on its
interest in providing, consistent with
Title IX, equal athletic opportunity on
male and female teams under
§ 106.41(c). Under proposed
§ 106.41(b)(2), the recipient would need
to design those criteria to minimize the
potential harms imposed on affected
students (e.g., difficulty of obtaining
documentation, risk of invasion of
privacy or disclosure of confidential
information). If the recipient can
reasonably adopt or apply alternative
criteria that cause less harm and still
achieve its important educational
objective, the recipient would not be
permitted to adopt the more harmful
criteria.
In sum, the proposed regulation
would preclude a recipient from
implementing sex-based classifications
more broadly than is necessary to
implement the statute’s underlying
goals, consistent with Title IX’s
guarantee that ‘‘[n]o person in the
United States’’ shall be subject to
prohibited discrimination on the basis
of sex. 20 U.S.C. 1681(a) (emphasis
added). Proposed § 106.41(b)(2) would
thus provide recipients greater clarity
on how to comply with Title IX’s
nondiscrimination obligation if
recipients adopt or apply sex-related
criteria that would limit or deny a
student’s eligibility to participate on
male or female athletic teams consistent
with their gender identity.
Directed Questions
The Department continues to consider
how its Title IX regulations should
clarify the permissibility of sex-related
criteria that would limit or deny a
student’s eligibility to participate on a
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male or female athletic team consistent
with their gender identity. The
Department therefore specifically
invites further public comment on:
a. Whether any alternative approaches
to the Department’s proposed regulation
would better align with Title IX’s
requirement for a recipient to provide
equal athletic opportunity regardless of
sex in the recipient’s athletic program as
a whole;
b. What educational objectives are
sufficiently important to justify a
recipient imposing 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 and whether those
objectives should be specified in the
regulatory text;
c. Whether and how the permissibility
of particular sex-related eligibility
criteria should differ depending on the
sport, level of competition, grade or
education level, or other considerations;
d. Whether any sex-related eligibility
criteria can meet the standard set out in
the proposed regulation when applied
to students in earlier grades, and, if so,
the type of criteria that may meet the
proposed standard for those grades;
e. How a recipient can minimize
harms to students whose eligibility to
participate on a male or female athletic
team consistent with their gender
identity is limited or denied by the
recipient’s adoption or application of
sex-related criteria; and
f. Whether regulatory text in addition
to the text in the proposed regulation is
needed to provide recipients with
sufficient clarity on how to comply with
Title IX’s prohibition on sex
discrimination, including gender
identity discrimination, in the context
of male and female athletic teams,
consistent with the principles and
concerns identified in the discussion of
proposed § 106.41(b)(2).
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Regulatory Impact Analysis (RIA)
Under Executive Order 12866,12 the
Office of Management and Budget
(OMB) must determine whether this
regulatory action is ‘‘significant’’ and,
therefore, subject to the requirements of
the Executive order and subject to
review by OMB. Section 3(f) of
Executive Order 12866 defines a
‘‘significant regulatory action’’ as an
action likely to result in a rule that
may—
(1) Have an annual effect on the
economy of $100 million or more, or
adversely affect a sector of the economy,
12 Executive
Order on Regulatory Planning and
Review, Exec. Order No. 12866, 58 FR 51735 (Oct.
4, 1993).
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productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities in a material way (also
referred to as an ‘‘economically
significant’’ rule);
(2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impacts of entitlement grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
stated in the Executive order.
This proposed action is ‘‘significant’’
and, therefore, subject to review by
OMB under section 3(f)(4) of Executive
Order 12866. The Department has
assessed the potential costs and
benefits, both quantitative and
qualitative, of this proposed regulatory
action and has determined that the
benefits would justify the costs.
The Department has also reviewed
this proposed regulation under
Executive Order 13563,13 which
supplements and explicitly reaffirms the
principles, structures, and definitions
governing regulatory review established
in Executive Order 12866. To the extent
permitted by law, Executive Order
13563 requires that an agency—
(1) Propose or adopt regulations only
on a reasoned determination that their
benefits justify their costs (recognizing
that some benefits and costs are difficult
to quantify);
(2) Tailor its regulations to impose the
least burden on society, consistent with
obtaining regulatory objectives and
taking into account—among other things
and to the extent practicable—the costs
of cumulative regulations;
(3) In choosing among alternative
regulatory approaches, select those
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; distributive
impacts; and equity);
(4) To the extent feasible, specify
performance objectives, rather than the
behavior or manner of compliance a
regulated entity must adopt; and
(5) Identify and assess available
alternatives to direct regulation,
including economic incentives—such as
user fees or marketable permits—to
encourage the desired behavior, or
provide information that enables the
public to make choices.
13 Executive Order on Improving Regulation and
Regulatory Review, Exec. Order No. 13563, 76 FR
3821 (Jan. 18, 2011), https://www.govinfo.gov/
content/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
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Executive Order 13563 also requires
an agency ‘‘to use the best available
techniques to quantify anticipated
present and future benefits and costs as
accurately as possible.’’ The Office of
Information and Regulatory Affairs of
OMB has emphasized that these
techniques may include ‘‘identifying
changing future compliance costs that
might result from technological
innovation or anticipated behavioral
changes.’’
Pursuant to Executive Order 13563,
the Department believes that the
benefits of this proposed regulation
justify its costs. In choosing among
alternative regulatory approaches, the
Department selected the approach that
maximizes net benefits. Based on the
analysis that follows, the Department
believes that the proposed regulation is
consistent with the principles in
Executive Order 13563.
The Department also has
preliminarily determined that this
regulatory action would not unduly
interfere with State, local, or Tribal
governments in the exercise of their
governmental functions.
This RIA discusses the need for
regulatory action, the potential costs
and benefits, assumptions, limitations,
and data sources, as well as regulatory
alternatives considered.
1. Need for Regulatory Action
In 2021, the President directed the
Department in both Executive Order
13988 14 and Executive Order 14021 15
to review its current regulations
implementing Title IX for consistency
with Title IX’s statutory prohibition on
sex discrimination by a recipient of
Federal financial assistance in its
education program or activity.
Consistent with those Executive orders,
the Department reviewed the current
regulations based on Federal case law,
its experience in enforcement, and
feedback received by OCR from
stakeholders, including during the June
2021 Title IX Public Hearing and
listening sessions. Over 280 students,
parents, teachers, faculty members,
school staff, administrators, and other
members of the public provided live
comments during the June 2021 Title IX
Public Hearing, and OCR also received
over 30,000 written comments in
connection with the hearing. In
14 Executive Order on Preventing and Combating
Discrimination on the Basis of Gender Identity or
Sexual Orientation, Exec. Order No. 13988, 86 FR
7023 (Jan. 25, 2021).
15 Executive Order on Guaranteeing an
Educational Environment Free from Discrimination
on the Basis of Sex, Including Sexual Orientation
and Gender Identity, Exec. Order No. 14021, 86 FR
13803 (Mar. 11, 2021).
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addition, OCR conducted listening
sessions with stakeholders expressing a
variety of views, including individuals
and organizations focused on Title IX
and athletics. Among these stakeholders
were athletic associations; studentathletes; parents; organizations
representing elementary schools,
secondary schools, and postsecondary
institutions (or institutions of higher
education (IHEs)); organizations
representing teachers, administrators,
parents, and current and former studentathletes; attorneys representing students
and schools; State officials; Title IX
Coordinators and other school
administrators; and individuals who
provide Title IX training to schools.
Based on this review, the Department
proposes amending its regulations to set
out a standard 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.
The Department received feedback from
many stakeholders during the June 2021
Title IX Public Hearing and listening
sessions and through correspondence
asking the Department to clarify Title
IX’s application to students’ eligibility
to participate on male or female athletic
teams and urging adoption of a variety
of positions.
The Department proposes amending
its Title IX regulations to address
stakeholder concerns and anticipates
that the proposed regulation would
result in many benefits to recipients,
students, employees, and others,
including by providing clarity to help
ensure compliance with Title IX’s
nondiscrimination requirement by
recipients that seek to adopt or apply
sex-related criteria to determine student
eligibility to participate on male or
female teams consistent with their
gender identity.
2. Discussion of Costs, Benefits, and
Transfers
The Department has analyzed the
costs and benefits of complying with the
proposed regulation. Although many of
the associated costs and benefits are not
readily quantifiable, the Department
believes that the benefits derived from
the proposed regulation would
outweigh the associated costs. The
Department acknowledges the interest
of some stakeholders in preserving
certain recipients’ current athletic-team
policies and procedures regarding sexrelated eligibility criteria and in
avoiding potential additional costs to
comply with the proposed regulation.
However, the Department believes the
current regulations are not sufficiently
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clear to ensure Title IX’s
nondiscrimination requirement is
fulfilled if a recipient adopts or applies
sex-related criteria that would limit or
deny students’ eligibility to participate
on male or female athletic teams
consistent with their gender identity.
The Department expects that a primary
benefit of the proposed regulation
would be to provide greater clarity to
recipients and other stakeholders about
the standard that a recipient must meet
under Title IX if it adopts or applies sexrelated criteria that would limit or deny
a student’s eligibility to participate on a
male or female athletic team consistent
with their gender identity and, as a
result, to protect students’ equal
opportunity to participate on male and
female teams consistent with Title IX.
Title IX applies to approximately
18,000 local education agencies (LEAs)
and over 6,000 IHEs. Due to the number
of affected entities, the variation in
likely responses, and the limited
information available about current
practices, the Department is not able to
precisely estimate the likely costs,
benefits, and other effects of the
proposed regulation. The Department
specifically invites public comment on
data sources that would provide
additional information on the issues
that are the subject of this Athletics
NPRM, information regarding the
number of recipients operating male or
female teams in intramural or club
sports, and time estimates for the
activities described in the Developing
the Model (Section 2.B.2) discussion of
the RIA, disaggregated by type of
recipient. Despite these limitations and
based on the best available evidence as
discussed below, the Department
estimates that this proposed regulation
would result in a net cost to recipients
of between $23.4 million to $24.4
million over 10 years.
The assumptions, data, methodology,
and other relevant materials, as
applicable, on which the Department
relied in developing its estimates are
described throughout this RIA.
2.A. Benefits of the Proposed Regulation
The Department believes that the
proposed regulation would provide
numerous important benefits but also
recognizes that it is not able to quantify
these benefits at this time. Despite the
lack of quantitative data available,
however, it is the Department’s current
view that the benefits are substantial
and far outweigh the estimated costs of
the proposed regulation.
In particular, the Department’s
current view is that the proposed
regulation would benefit educational
institutions and their students and
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22879
applicants for admission by providing
greater clarity about the standard a
recipient must meet if it 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. The Department expects that
the clarity provided by the proposed
regulation would reduce the likelihood
of sex discrimination in students’
opportunities to participate on male or
female teams offered by a recipient. By
reducing the sex discrimination
resulting from confusion surrounding
the permissibility of sex-related
eligibility criteria, it is the Department’s
view that the proposed regulation
would produce a demonstrable benefit
for educational institutions and their
students. The Department anticipates
these benefits would be realized by
helping protect students’ equal
opportunity to participate on male and
female teams consistent with Title IX,
along with the associated health and
other benefits to students who are able
to participate as a result of the proposed
regulation’s clarity on Title IX’s
requirements. The Department further
anticipates that the proposed regulation
would benefit recipients by helping
recipients understand their obligations,
thereby supporting their efforts to
provide equal athletic opportunity
regardless of sex in their athletic
programs, as Title IX requires.
Youth participation in athletics is
associated with many physical,
emotional, academic, and interpersonal
benefits for students, including
increased cognitive performance and
creativity, improved educational and
occupational skills, higher academic
performance and likelihood of
graduation from a 4-year college,
improved mental health, and improved
cardiovascular and muscle fitness, as
well as reduced risk of cancer and
diabetes, and has the potential to help
students develop traits that benefit them
in school and throughout life, including
teamwork, discipline, resilience,
leadership, confidence, social skills, and
physical fitness. See President’s Council
on Sports, Fitness & Nutrition Sci. Bd.,
Benefits of Youth Sports (Sept. 17,
2020), https://health.gov/sites/default/
files/2020-09/YSS_Report_OnePager_
2020-08-31_web.pdf.
There is also evidence suggesting that
allowing transgender children to
socially transition (i.e., present
themselves in everyday life consistent
with their gender identity) is associated
with positive mental health outcomes
for those children. Kristina Olson et al.,
Mental Health of Transgender Children
Who Are Supported in Their Identities,
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137 Pediatrics 3 (March 2016), https://
publications.aap.org/pediatrics/article/
137/3/e20153223/81409/Mental-Healthof-Transgender-Children-Who-Are.
Ensuring that transgender students have
the opportunity to participate on male
or female teams consistent with their
gender identity can be part of a
transgender student’s social transition
and is thus a crucial benefit to those
students’ health and well-being.
In addition, though the data
quantifying the economic impacts of sex
discrimination are limited, the
Department recognizes that sex
discrimination causes harm to students,
including when such discrimination
results in students being limited in or
excluded from the opportunity to
participate in athletics consistent with
their gender identity and thereby
effectively deprived of the many
positive benefits of participation in team
sports. See, e.g., Hecox, 479 F. Supp. 3d
at 987 (finding State law caused harm in
that it would deny a transgender woman
the opportunity to participate on
women’s team and subject her to the
State’s moral disapproval of her
identity); Utah High Sch. Activities
Ass’n, 2022 WL 3907182, at *9 (finding
immediate harm caused by State law
banning transgender girls from
participating in sports consistent with
their gender identity).
2.B. Costs of the Proposed Regulation
The analysis below reviews the
Department’s data sources, describes the
model used for estimating the likely
costs associated with the proposed
regulation, and sets out those estimated
costs. The costs described below are not
intended to reflect the exact burden on
any given recipient, but instead
intended to reflect an average burden
across all recipients. Specific entities
may experience higher or lower costs
than those estimated below as a result
of this proposed regulation. Due to
limited quantitative data, the
Department emphasizes that the
monetary estimates reflect only the
likely costs of this proposed regulatory
action and do not seek to quantify, in
monetary terms, the costs of sex
discrimination. There are limited data
quantifying the economic impacts of sex
discrimination in athletics, and the
Department invites comment on
suggestions for any data sources that
would provide additional information.
2.B.1. Establishing a Baseline
As an initial matter, the analysis that
follows separately discusses the effects
of the proposed regulation on
elementary and secondary education
(ESE) entities and postsecondary
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education or IHE entities. For purposes
of this analysis, ESE and IHE entities
include educational institutions as well
as other entities, such as national
athletic associations and sport
governing bodies, that are involved in
the adoption or application of sexrelated eligibility criteria for students
participating on a recipient’s male or
female athletic teams. The Department
analyzes the costs associated with the
proposed regulation separately for ESE
and IHE entities and views this as the
best approach for cost analysis because
ESE and IHE entities are organized and
operate differently, and the costs the
proposed regulation would impose on
recipients are distinct at these levels, as
explained below.
Athletic competition and its
governance vary between the ESE and
IHE contexts, with most ESE
interscholastic competition governed by
State-specific athletic associations,
while much intercollegiate competition
in the United States occurs under the
auspices of only a handful of athletic
associations, the largest of which is the
NCAA. Under the proposed regulation,
a recipient would be permitted to adopt
or apply sex-related eligibility criteria
that would limit or deny a student’s
eligibility to participate on a male or
female athletic team consistent with
their gender identity if those criteria, for
each sport, level of competition, and
grade or education level (i) are
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. The Department anticipates
that the costs associated with
implementing the proposed regulation—
such as reviewing, adopting, and
implementing policies, and training
staff—would best align according to
whether an entity is an ESE or IHE
entity.
With respect to ESE entities, the
Department anticipates that the same
entities (e.g., LEAs, State education
associations, and State athletic
associations) would generally review
and respond to the regulation for
elementary school, middle school, and
high school, and, in doing so, would
likely address the full range of affected
students in any subsequent review or
revision of policies. For this reason, the
Department projects costs for ESE
entities in one category, even though an
entity may opt to adopt or apply
different eligibility criteria for sexseparate teams in high school, for
example, than for students in
elementary school and middle school.
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To separate these entities into different
categories for the purpose of projecting
costs would unduly confound estimates.
For example, there are not separate
burdens associated with the time and
effort an LEA athletic director may
spend reading and understanding the
regulation’s application to all students
in the LEA. Instead, the athletic director
would likely read and understand the
regulation in its entirety. That LEA
athletic director would then develop
policies and practices that comply with
the regulation, possibly differentiating
sex-related eligibility criteria for male
and female teams for different sports,
levels of competition, and grades or
education levels, while ensuring that
the criteria minimize harms to students.
Similarly, the Department anticipates
that a State athletic association with
membership comprised of LEAs that
serve students in grades pre-K through
12 would review the regulation as a
whole and set policies for its member
entities’ participation in interscholastic
competition that align with the
regulatory requirements.
In light of these factors, the
Department believes it is reasonable to
project costs by dividing the cost
analyses between ESE and IHE entities.
The Department notes that, in light of
how athletic competition is structured
at both the ESE and IHE levels, some
entities that would not otherwise be
subject to the proposed regulation may
nonetheless be affected by its
promulgation as a result of actions by
third parties. As noted above, most
athletic competition is organized by
State athletic associations at the ESE
level or under the auspices of the NCAA
or similar national athletic associations
at the IHE level. It is possible that a
State athletic association or relevant
governing body would require all of its
members, including a private high
school, to comply with eligibility and
participation criteria that the association
sets. The Department thus
acknowledges that the implementation
of the proposed regulation by these
athletic associations may indirectly
affect entities that are not directly
subject to the proposed regulation. The
Department does not currently have
sufficient data to estimate the likelihood
of these effects or their impact and seeks
specific public comment on these
issues.
Athletic Competition in ESE Entities
In the 2020–2021 school year,
according to data from the National
Center on Education Statistics, there
were 18,259 LEAs in the United States
with either a nonzero enrollment or at
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least one operational school.16 Of the
18,083 LEAs for which the Department
has data on the relevant variables,17
4,383 do not serve students in grades 9
through 12. Many of these are single
school LEAs, such as charter schools.
The Department assumes that these
LEAs will continue to serve only
students in elementary or middle school
moving forward. Of the remaining LEAs,
1,268 only serve students in grades 9
through 12. Most LEAs (11,661) serve
students in pre-kindergarten or
kindergarten through 12th grade.
The Department generally assumes
that, to the extent LEAs offer separate
male and female intramural athletic
teams, they generally establish
eligibility criteria for participation on
those teams at the LEA level even if the
policies differ by sport, level of
competition, or grade or education level.
For interscholastic athletic
competition, eligibility is generally
governed by State-specific athletic
associations. The Department reviewed
existing, publicly available State athletic
associations’ policies on sex-related
eligibility criteria for students’
participation on male or female teams
for each of the 50 States, Puerto Rico,
and the District of Columbia.18 This
review was conducted for the purpose
of informing this Athletics NPRM; the
Department has not evaluated these
policies to determine whether they
would comply with the proposed
regulation or current statutory or
regulatory Title IX requirements. The
Department observed that State athletic
association policies range from those
that allow all students to participate on
male or female athletic teams consistent
with their gender identity to those that
categorically exclude transgender
students from participating on male or
female athletic teams consistent with
their gender identity. The Department
further observed additional variation
16 In the 2020–2021 school year, 91 ESE entities
had nonzero enrollments and zero operational
schools. For purposes of this analysis, the
Department assumes these entities operate like
other LEAs, although several appear to be regional
education services agencies or intermediate school
districts where the named entity itself, while
enrolling students, may not directly provide
education to students. In that same year, 531 ESE
entities had operational schools either with zero
enrollment or no enrollment data available. A
number of these entities are charter schools that
may have been in the process of opening or closing,
and it is unclear whether they will serve students
in future years. Inclusion of these two groups of
entities will likely result in an over-estimate of the
potential costs of the proposed regulation.
17 This total excludes one LEA providing only
adult education services and 68 LEAs serving only
ungraded students.
18 The Department notes that State athletic
association policies on this topic continue to be
updated.
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among State athletic association policies
that establish some criteria for
determining when a student is eligible
to participate on a specific male or
female athletic team consistent with
their gender identity. For example:
• Approximately 20 percent of State
athletic association policies currently
allow students to participate on male or
female athletic teams consistent with
their gender identity without
establishing additional criteria or
eligibility requirements beyond those
that apply to all student-athletes, such
as attendance or academic achievement.
• Approximately 25 percent of State
athletic associations generally permit
participation consistent with students’
gender identity and have established
some criteria or eligibility requirements
for participation, such as various types
of documentation (examples include a
written statement from the student, their
parent or guardian, health care or
treatment provider, a community
member or teacher identifying the
student’s consistent gender identity).
• Approximately 20 percent of State
athletic associations require students
who wish to participate consistent with
their gender identity to meet additional
criteria prior to participation. Of those
athletic associations that impose
additional requirements, the vast
majority (approximately three-quarters
of this group) adopted different policies
for male and female teams—many of
which require transgender girls to
satisfy additional criteria prior to
participating on a female team
consistent with their gender identity.
• The remaining State athletic
associations have adopted a range of
policies imposing criteria that severely
limit most or all transgender students
from participating on male or female
athletic teams consistent with their
gender identity.
In addition to variations among State
athletic associations regarding the
criteria for participation on male or
female athletic teams, the Department
observed variations among State athletic
associations regarding the eligibility
decision process for participation on
male or female athletic teams. In nearly
half of States, athletic association
policies leave decisions regarding
eligibility to the school or to the school
and the student-athlete. In
approximately 30 percent of States, the
athletic association is involved in
determining eligibility, either alone or
in conjunction with the school.
In general, the Department found that
State athletic association policies are
silent on the issue of students in
elementary school. With respect to
middle school, the Department found
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22881
that about half of State athletic
associations regulate athletic
competition at that level, but only
approximately 35 percent of State
athletic associations have policies
addressing those students’ participation
in athletic competition consistent with
their gender identity. The remaining
State athletic associations are either
silent on this issue or explicitly defer to
the school or LEA for policies affecting
students in middle school.
The Department notes that most
States do not have laws prescribing sexrelated eligibility criteria for recipients’
male and female athletic teams. The
Department also notes that at least two
States have enacted laws or regulations
requiring LEAs to allow ESE students to
participate in athletics consistent with
their gender identity. Twenty States
have enacted laws that, to varying
degrees, explicitly require that studentathletes participate on male or female
athletic teams consistent with their sex
assigned at birth. The Department
anticipates athletic associations in some
States may adopt policies that align
with State law before the Department
promulgates its final regulation. The
Department further notes that some
State laws are currently subject to
litigation that may affect their continued
applicability. See, e.g., B.P.J., No. 23–
1078 (4th Cir. Feb. 22, 2023) (staying the
district court’s dissolution of
preliminary injunction barring
enforcement against plaintiff of West
Virginia law requiring students to
participate on athletic teams consistent
with ‘‘biological sex’’ pending appeal);
Hecox, 479 F. Supp. 3d at 978–85
(granting preliminary injunction barring
implementation of Idaho law that
excludes transgender girls and women
from participating in athletics consistent
with their gender identity based on
strong likelihood the law violates the
Equal Protection Clause); Barrett v.
State, Cause No. DV–21–581B (Mont.
18th Jud. Dist. Sept. 14, 2022) (finding
Montana law that restricts participation
of transgender students in public
institutions’ athletic programs violates
State constitution by infringing on
public university’s ‘‘authority to oversee
student groups and activities’’), appeal
docketed, No. DA 22–0586 (Mont. Oct.
13, 2022); Utah High Sch. Activities
Ass’n, 2022 WL 3907182, at *1, *9
(granting preliminary injunction to
enjoin enforcement of Utah law that
‘‘effectively bans transgender girls from
competing in pre-college school-related
girls sports,’’ based on strong likelihood
the law violates the State constitution).
In the absence of the clarity that the
proposed regulation would provide, the
Department assumes that States, LEAs,
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schools, and State athletic associations
would continue to implement varying
policies for students in elementary and
secondary education, with a small
subset adopting criteria that would not
limit or deny the participation of
transgender students on male or female
athletic teams consistent with their
gender identity and a small subset
adopting criteria that would
substantially limit or deny transgender
students from participating on male or
female athletic teams consistent with
their gender identity. The Department
also assumes that almost all of the
remaining States (approximately half)
would have policies that establish
minimal criteria for the participation of
transgender students in high school
athletics consistent with their gender
identity (e.g., a written statement from
the student or someone on their behalf
confirming the student’s consistent
gender identity). The Department seeks
specific public comment on the
reasonableness of this assumption.
Athletic Competition in IHE Entities
In the 2020–2021 school year,
according to data from the National
Center on Education Statistics, there
were 6,045 IHEs participating in
programs under Title IV of the Higher
Education Act of 1965, 20 U.S.C. 1001
et seq. (1965), such as Loans, Federal
Work Study, and Pell grants. Except as
described above, the Department
assumes this represents the universe of
potentially impacted IHE entities. Of
those, 1,689 IHEs offered an educational
program that was less than 2 years in
duration (i.e., below the associate’s
level), 1,602 offered a program of at least
2 but less than 4 years, and 2,754
offered a program of 4 or more years. In
total, these institutions enrolled
approximately 14.8 million full-time
equivalent (FTE) students in fall 2020.
Approximately 1 percent of students
attended less-than-2-year IHEs,
approximately 20 percent attended 2- to
4-year institutions, and approximately
79 percent attended at least 4-year
institutions (hereinafter referred to as
‘‘4-year institutions’’).
TABLE 1—INSTITUTIONS OF HIGHER EDUCATION BY LEVEL OF INSTITUTIONS AND ENROLLMENT, FALL 2020
Number of
entities
Level of institution
Total fall
FTE
enrollment
% of total
fall FTE
enrollment
Average fall
FTE
enrollment
Less-than-2-Year .............................................................................................
2- to 4-Year ......................................................................................................
4 or more Years ...............................................................................................
1,689
1,602
2,754
228,448
2,905,048
11,617,659
1
20
79
138
1,843
4,317
Total ..........................................................................................................
6,045
14,751,155
100
2,490
In general, the Department assumes
that less-than-2-year institutions, which
include many trade and technical
programs (e.g., cosmetology, HVAC
repair, dental assistant) do not engage in
interscholastic athletic competition or
operate intramural athletic programs.
The Department seeks specific public
comment on the extent to which lessthan-2-year IHEs would be impacted by
the proposed regulation.
The Department generally assumes
that approximately 50 percent of 2- to 4-
year IHEs operate intramural teams,
some or all of which are male or female
teams, and that the IHEs establish
policies governing those programs.
For intercollegiate athletic
competition, eligibility is generally
governed by national athletic
associations, as described above. For
purposes of this analysis, the
Department assumes that each athletic
association independently adopts and
applies criteria to determine the
eligibility of students to participate on
male or female teams consistent with
their gender identity. The Department
annually collects data on whether IHEs
are members of such associations. Of the
3,989 IHEs for which the Department
has data,19 1,986 were members of a
national athletic association in the
2020–2021 school year. Of those IHEs,
1,526 were 4-year institutions and 460
were 2- to 4-year institutions.
TABLE 2—SELECTED CHARACTERISTICS BY NATIONAL ATHLETIC ASSOCIATION MEMBERSHIP AND LEVEL OF INSTITUTION,
FALL 2020
Member of
National Athletic Association
Not a member of
National Athletic Association
Level of institution
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Number
Average
enrollment
Number
Average
enrollment
2- to 4-Year IHE ..............................................................................................
4-Year IHE .......................................................................................................
460
1,526
3,223
6,440
830
1,173
1,641
1,542
Total ..........................................................................................................
1,986
5,695
2,003
1,583
19 Data are not available for 312 2- to 4-year
institutions and 55 4-year institutions.
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TABLE 3—PERCENTAGE OF IHES THAT ARE MEMBERS OF NATIONAL ATHLETIC ASSOCIATIONS BY LEVEL AND CONTROL OF
INSTITUTION, FALL 2020
2- to 4-Year
IHEs
(%)
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Public ...........................................................................................................................................
Private Non-Profit ........................................................................................................................
Private For Profit ..........................................................................................................................
All Sectors ....................................................................................................................................
As part of its annual data collection,
the Department gathers information on
membership in five specific national
athletic associations (referred to below
as the ‘‘five named athletic
associations’’). IHEs reported
membership in the five named athletic
associations for the 2020–2021 school
year as follows:
• The National Collegiate Athletic
Association (NCAA)—1,108 IHEs;
• The National Association of
Intercollegiate Athletics (NAIA)—250
IHEs;
• The National Junior College
Athletic Administration (NJCAA)—498
IHEs;
• The National Small College Athletic
Association (NSCAA)—43 IHEs; and
• The National Christian College
Athletic Association (NCCAA)—89
IHEs.
Also as part of its data collection, the
Department permits IHEs to report
membership in national athletic
associations other than the five named
athletic associations. For the 2020–2021
school year, 138 IHEs reported that they
were members of an athletic association
other than the five named athletic
associations. The Department does not
have data on the specific athletic
associations to which these IHEs belong.
For purposes of this analysis, the
Department assumes two additional
national athletic associations, beyond
the five named athletic associations,
would be required to review policies
pursuant to the proposed regulation if it
were to be promulgated. The
Department seeks specific public
comment on this estimate.
As explained in the discussion of the
proposed regulation, in January 2022,
the NCAA replaced its longtime rules
for transgender student-athlete
participation and adopted a sport-bysport approach that defers to the
eligibility criteria set by national
governing bodies—e.g., USA Swimming,
USA Gymnastics—subject to review by
the NCAA’s Committee on Competitive
Safeguards and Medical Aspects of
Sports. Some of these national groups
look to international organizations such
as FINA and International Gymnastics
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Federation (FIG), which set criteria for
participation in international
competitions involving elite athletes.
See, e.g., USA Swimming, Athlete
Inclusion, Competitive Equity, and
Eligibility Policy at 4–5 (Mar. 10, 2023),
https://www.usaswimming.org/docs/
default-source/governance/governancelsc-website/rules_policies/usaswimming-policy-19.pdf (noting that
athletes who wish to compete in a
World Aquatics Competition must meet
the eligibility criteria in the World
Aquatics Policy, which ‘‘are potentially
more difficult to satisfy than’’ the USA
Swimming policy); USA Gymnastics,
Transgender & Non-Binary Athlete
Inclusion Policy at 3 (Apr. 2022),
https://www.usagym.org/PDFs/
About%20USA%20Gymnastics/
transgender_policy.pdf (noting that elite
athletes who are transgender must
satisfy requirements for participation set
by the FIG and IOC). Taking these elite
international competition criteria into
account, some national governing
bodies have developed eligibility
criteria that differ based on levels of
competition, with certain criteria
applying only to athletes who seek to
compete internationally or in nationally
recognized record-setting events. In
addition, eligibility criteria vary by
sport. Some international governing
bodies permit transgender women to
compete at elite levels if they satisfy
specific testosterone suppression
criteria. See, e.g., Union Cycliste
Internationale, UCI Eligibility
Regulations. Others exclude from elite
competition transgender women who
have experienced any aspect of male
puberty. See, e.g., FINA Policy on
Eligibility. Some sport governing bodies
have not yet updated their policies or
their criteria for determining
transgender students’ participation
remain under review. For example,
World Lacrosse announced it is
reviewing and revising its eligibility
criteria for everyone involved in the
sport, including transgender athletes, to
create a policy that ensures that
‘‘everyone has a right to safely
participate in sport while maintaining
fair competition.’’ World Lacrosse,
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55
7
0
36
4-Year IHEs
(%)
All levels
(%)
77
57
7
43
65
54
3
50
World Lacrosse Forms Partnership with
National Center for Transgender
Equality to Create Trans-Inclusive
Participation Policy (June 9, 2022),
https://worldlacrosse.sport/article/
world-lacrosse-forms-partnership-withnational-center-for-transgenderequality/. The Department generally
assumes that national and international
governing bodies will continue to revise
their policies in the coming years and
that most or all will seek to develop
policies that, in their view, maximize
athletes’ participation consistent with
gender identity while ensuring fair and
safe competition.
2.B.2. Developing the Model
Athletic Competition in ESE Entities
In general, the Department assumes
that only LEAs that offer male and
female athletic teams would be directly
affected by the proposed regulation. As
part of the 2017–2018 Civil Rights Data
Collection, schools in approximately 60
percent of LEAs submitting responses
indicated that they operated one or
more male or female athletic teams. For
purposes of this analysis, the
Department assumes approximately 60
percent of all LEAs offer sex-separate
athletic teams, for an estimated 10,849
affected LEAs.
As noted above, although recipient
LEAs would be subject to the proposed
regulation, they generally do not
independently establish requirements
for participation in interscholastic
competition. Instead, LEAs typically
participate as members in State athletic
associations, which generally establish
these requirements. Regardless, the
Department notes that recipient LEAs
must comply with Title IX and the
obligation to do so is not alleviated by
any contrary athletic association rule.
See 34 CFR 106.6(c). Because of this
obligation, the Department believes that
many LEAs, as members of State athletic
associations, would communicate with
their State’s athletic association about
the Department’s proposed regulation.
As a result, the Department believes it
is reasonable to assume that State
athletic associations would review and
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consider revising their policies on this
issue.
Also as noted above, the Department
has not evaluated existing State athletic
association policies governing
interscholastic athletics to determine
whether they would comply with the
proposed regulation. However, the
Department assumes that a range of
policies would comply with the
proposed regulation. On the other hand,
a State athletic association policy with
restrictive sex-related eligibility criteria
that complies with the proposed
regulation in the context of a particular
sport (e.g., a sport with significant
physical contact) may not comply in the
context of a different sport (e.g., one
with little or no physical contact) if, for
example, a recipient cannot demonstrate
how its sex-related criteria are
substantially related to achievement of
an important educational objective in
the context of that particular sport and
minimize harms to students whose
opportunity to participate on a male or
female team consistent with their
gender identity would be limited or
denied by the criteria. As a result, the
Department anticipates that all LEAs
and all athletic associations will
undertake at least some level of review
of their existing policies or the policies
of associations to which they belong.
The Department does not assume the
adoption, elimination, or modification
of any specific policy.
The Department believes that the
proposed regulation would render State
athletic associations that currently
prevent transgender students from
participating on male or female teams
consistent with their gender identity
more likely than others to conduct
intensive reviews of their existing
policies. The Department anticipates
this result because athletic association
policies that would limit or deny
students’ eligibility to participate on
male or female teams consistent with
their gender identity would be more
likely to raise questions from member
LEAs, student-athletes, and families
regarding compliance with Title IX. The
Department assumes many of these
State athletic associations, or their
member LEAs, would engage in some
revision to ensure their policies comply
with the regulation. By contrast, the
Department generally assumes that the
20 percent of State athletic associations
that currently allow students to
participate on male or female athletic
teams consistent with their gender
identity would be less likely to engage
in intensive review of their policies and
implement revisions than other States.
For purposes of this analysis, the
Department assumes the following:
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• All LEAs, including those that do
not offer athletic teams, will engage in
an initial review of the rule;
• In 20 percent of States, the State
athletic association and LEAs offering
athletic teams whose policies already
permit students to participate on male
or female teams consistent with their
gender identity will undertake a review
but would be unlikely to revise their
existing policies;
• In 20 percent of States, the State
athletic association and LEAs offering
athletic teams whose policies impose
requirements that enable most or all
transgender students to participate
consistent with their gender identity
will undertake a more intensive review
but would also be unlikely to revise
their existing policies; and
• In 60 percent of States, the State
athletic association and LEAs offering
athletic teams whose policies prohibit
or significantly restrict participation by
transgender students consistent with
their gender identity will undertake a
more intensive review and will revise
their existing policies.
The Department anticipates that the
60 percent of State athletic associations
and LEAs in this final category will
experience burdens associated with
revising their policies for a variety of
reasons. Some of these associations may
have more complex policy structures
than others (e.g., different policies for
different sports as opposed to a single
policy affecting all sports). Others may
have particular bureaucratic structures
(e.g., standing review panels), public
participation requirements (e.g., 45 days
of public comment), or assent
requirements (e.g., a certain percentage
of member LEAs must agree to any
policy change). The Department seeks
specific public comment on the extent
to which such structures or
requirements may exist and where, how
they would impact the estimates
included here, and whether, as a result,
it would be appropriate for the
Department to subdivide this final
category to account for variation in the
field.
The Department recognizes that LEAs
are not evenly distributed across States
and, therefore, the policies of a single
State athletic association could affect
more LEAs than the policies of multiple
other State athletic associations that
serve a smaller number of schools.
However, for purposes of this analysis,
the Department assumes that, if 45
percent of State athletic associations
implement a particular policy, 45
percent of LEAs offering athletic teams
would be affected. More specific
estimates would require the Department
to develop independent estimates for
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specific States or groups of States and
then correlate those State-specific
effects and responses to estimates of the
number of LEAs offering athletic teams
in each State. There is not enough
information available to the Department
to develop reliable estimates at this
level of granularity, and therefore the
Department assumes an equal
distribution of LEAs.
The Department also assumes that
State athletic associations engage in
periodic reviews and updates to their
policies. Although the proposed
regulation would not require such
reviews, the Department believes the
proposed regulation would likely factor
into these reviews. The Department
assumes any subsequent review of
policies in this area would be unlikely
to occur for several years after the initial
review to determine compliance with
the proposed regulation, but also
assumes that approximately five State
athletic associations would review these
policies each year thereafter. Of those,
the Department estimates approximately
one State athletic association would
engage in a policy revision each year.
The Department requests specific public
comment on the extent to which State
athletic associations are likely to engage
in a review of these policies and on
what timeline such reviews may occur.
Finally, as noted above, in the vast
majority of States, determinations
regarding eligibility of particular
student-athletes are made at the local
level (i.e., school or LEA). The
Department assumes State athletic
associations, once they have revised
their policies, will train LEA staff (e.g.,
athletic directors) to make those
determinations. LEA staff in these
positions likely already receive regular
training from the State athletic
association; therefore, the Department
assumes that any training regarding
eligibility determinations would likely
supplant other training, or time devoted
to other topics would be adjusted to
make time to train LEA staff on this
topic.
The Department also notes the
relatively low number of transgender
student-athletes relative to the overall
population of student-athletes. See, e.g.,
Hecox, 479 F. Supp. 3d at 982 (noting
the ‘‘incredibly small percentage of
transgender women athletes’’). To the
extent additional training is required
beyond the standard training to all
athletic directors and staff, the
Department anticipates that it will be
conducted on an ad hoc basis as
necessary. The Department therefore
assumes that there will be no additional
time burdens above baseline associated
with training in future years.
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Athletic Competition in IHE Entities
In general, the Department assumes
that only IHEs offering separate male
and female athletic teams would be
directly affected by the proposed
regulation. However, the Department is
unaware of any comprehensive data
source on the number of IHEs that offer
such teams, including in club and
intramural athletics. Based on the
information in Establishing a Baseline
(Section 2.B.1) above, the Department
assumes that participation varies by
entity type, including whether an
institution is public or private, and size,
among other factors. For example, the
Department assumes that less-than-2year private, for-profit IHEs, such as
those offering cosmetology or other
specific career training programs, are
less likely than 4-year IHEs to offer
athletic teams. The Department requests
specific public comment on the extent
to which any high-quality data sources
exist regarding IHE offerings of athletic
teams, beyond the data from the
National Center for Education Statistics
cited above, and the extent to which
such data can be used for this analysis.
As noted above, although all IHEs that
are recipients of Federal financial
assistance would be subject to the
proposed regulation, they generally do
not independently establish
requirements for participation in
intercollegiate competition. Instead,
IHEs typically participate as members of
one or more national athletic
associations, which generally establish
these requirements. However, the
Department notes that recipient IHEs,
like all recipients of Federal funds, must
comply with Title IX and the obligation
to do so is not alleviated by any contrary
athletic association rule. See 34 CFR
106.6(c). Because of this obligation, the
Department assumes that many IHEs
would advocate, as members of one or
more national athletic associations, to
ensure that their associations’ policies
related to students’ participation
consistent with their gender identity
comply with the Department’s
regulation. As a result, the Department
believes it is reasonable to assume that
national athletic associations would
review and, as necessary, revise their
policies to comply with the proposed
regulation on this issue.
For purposes of this analysis, the
Department has not evaluated existing
policies governing intercollegiate
athletics such as national athletic
association policies to determine
whether they would comply with the
proposed regulation. However, the
Department assumes that due to the
nature of the proposed regulation and
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the potential implications of noncompliance with Title IX for their
members, all national athletic
associations would engage in some
degree of review of their policies to
comply with the proposed regulation.
Further, the Department assumes that
all IHEs offering athletic teams would
spend time reviewing their own policies
governing athletic participation not
sponsored by a national athletic
association (e.g., intramural sports
leagues). The Department further
assumes that, upon revision of policies
by a national athletic association, a
subset of affected IHEs would conduct
an independent review of the revised
policies to independently assess
whether the policies are compliant with
the proposed regulation. The
Department assumes that these reviews
would most likely occur at larger, betterresourced IHEs, with the remainder of
IHEs assuming that the policies
promulgated or approved by their
respective athletic associations comply
with the proposed regulation without
conducting further analysis. The
Department does not assume the
adoption, elimination, or modification
of any specific policy.
For purposes of this analysis, the
Department assumes the following:
• All IHEs, including those that do
not offer athletic teams, will complete
an initial review of the proposed
regulation;
• Forty percent of IHEs (those offering
athletic teams, including intercollegiate
as well as intramural) will undertake a
more intensive review of the proposed
regulation and their existing policies;
• Twenty percent of IHEs will revise
their institution-specific policies (e.g.,
those governing intramural sports) after
conducting the more intensive review
just described;
• All five named athletic associations
and two additional athletic associations
will extensively review their policies,
and of those seven athletic associations,
four will revise their policies to comply
with the proposed regulation; and
• As a result of athletic association
policy changes, 10 percent of IHEs will
conduct a secondary review of those
new athletic association policies to
assess compliance with the proposed
regulation.
Estimating specific effects the
proposed regulation would have on
IHEs is difficult for a variety of reasons.
First, because national athletic
associations range in size and number of
member IHEs, policy revisions
undertaken by one national athletic
association may have more far-reaching
effects than those of another. Second, of
the IHEs reporting membership in an
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athletic association, 132 IHEs reported
membership in more than one
association. Each national athletic
association would likely have one or
more member IHE that is also a member
of another athletic association. As a
result, it is likely that associations
would establish policies that account for
other associations’ policies and that all
associations would have an incentive to
promote alignment, which would
reduce compliance burdens on dualmember IHEs. Depending on which
associations revise their policies, the
extent to which they do so, the timing
of their revisions, and the degree of
motivation on the part of other
associations to align their policies, there
could be widely varying effects. For
example, if the NCAA adopts a
significant policy revision based on the
proposed regulation, that revision
would directly affect more than half of
all IHEs offering athletic teams. This
revision may also prompt smaller
associations to adopt similar policies to
align with the NCAA, and as a result,
nearly all IHEs offering athletic teams
would be impacted. By contrast, if a
small association adopts a policy change
affecting only a small number of IHEs
that are not members of additional
associations, effects may be limited
because other associations may choose
not to align their policies. The
Department seeks specific public
comment on its analysis and
information on how to better evaluate
the factors that would contribute to the
effects of policy revisions by one
athletic association on the policies of
other associations.
The Department assumes that national
athletic associations periodically review
and update their policies. Although the
proposed regulation would not require
periodic reviews, the Department
believes national athletic associations
will consider the proposed regulation in
their review process. The Department
assumes national athletic associations
are unlikely to review their policies in
this area for several years after
completing their initial review, but
thereafter assumes that every year there
would be approximately two national
athletic associations that would review
these policies. The Department assumes
that most associations review their
policies on a 3-year cycle. The
Department seeks specific public
comment on whether such a timeline is
reasonable.
Of those associations that conduct a
review, the Department estimates that
approximately one athletic association
will revise its policies each year. The
Department requests specific public
comment on the extent to which athletic
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associations are likely to review their
policies and on what timeline these
reviews may occur.
The Department anticipates that IHE
entities will incur minimal additional
training costs, similar to its projections
for ESE entities, as a result of the
proposed regulation. The Department
assumes national athletic associations
provide annual training to IHE staff
(e.g., athletic directors) on a range of
policy issues, and as a result of the
proposed regulation, this annual
training would cover any new policies.
The Department assumes that there will
be no additional time burdens above
baseline associated with training in
future years. The Department seeks
specific public comment on the extent
to which these estimates and
assumptions are reasonable.
Finally, the Department recognizes
that this Athletics NPRM comes at a
time when IHEs that offer intercollegiate
athletic teams may be affected by
changes to national and international
sex-related criteria for determining
students’ eligibility to participate on
male or female teams. It is the
Department’s current view that by
regulating during a time when changes
are ongoing, the proposed regulation
may reduce costs by providing some
certainty about what regulatory
requirements must be met on this issue
to fulfill a recipient’s obligations under
Title IX; at the same time, because these
changes are ongoing, the Department
cannot predict the nature of future
eligibility criteria that may be adopted
by the NCAA or other national athletic
associations with any degree of
certainty.
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2.B.3. Cost Estimates
Athletic Competition in ESE Entities
The Department estimates that, to
comply with the proposed regulation,
all regulated entities, including those
that do not offer an athletic program,
would take time to review the regulation
to determine whether it applies to their
entity, as the Department generally
assumes that all regulated entities will
have some level of interest in the
proposed regulation. At the LEA level,
the Department assumes this initial
review, which is limited to determining
whether the regulation applies, would
take an education administrator
approximately half an hour to complete
(at $100.36/hour) 20 at 18,083 LEAs, for
a total Year 1 cost of $907,400.
20 For purposes of this regulatory impact analysis,
the Department uses wage rates from the U.S.
Bureau of Labor Statistics’ May 2021 National
Industry-Specific Occupational Employment and
Wage Estimates (NAICS 611000—Educational
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For State athletic associations and
LEAs offering athletic teams, the
Department assumes those entities in 20
percent of States will engage in a less
intensive review of their existing
policies. The Department estimates that
all LEAs would also spend time
reviewing their own policies for
intramural and other athletic activities
not otherwise governed by a State
athletic association for compliance with
the Department’s regulation. The
Department does not anticipate that this
review would be burdensome because
the Department assumes that there are
fewer activities of this type. The
Department assumes that this review
would be more burdensome for State
athletic associations given the number
of LEAs and athletic programs
implicated. The Department welcomes
comments on the accuracy of these
assumptions. At the LEA level, the
Department estimates this review would
require 2 hours each from an education
administrator 21 and management
analyst 22 ($81.56/hour) at 2,169 LEAs.
For State athletic associations, the
Department estimates that this activity
would take 4 hours for an education
administrator, 4 hours for a management
analyst, and 2 hours for an attorney
($148.76/hour) at each of 10
associations. In total, we estimate that
these activities would cost
approximately $799,420 in Year 1.
In the remaining 80 percent of States,
the Department estimates that LEAs and
State athletic associations would engage
in a more intensive review of their
policies on athletic participation
because their existing policies restrict,
to some degree, the participation of
students on male or female teams
consistent with their gender identity.
This intensive review would be used by
LEAs and State athletic associations to
determine whether existing policies are
compliant as written or whether the
policies would need to be revised to
comply with the proposed regulation.
At the LEA level, the Department
estimates that this work will take 4
hours each for an education
administrator and a management analyst
in 8,679 LEAs to complete. For State
Services), available at https://www.bls.gov/oes/
current/naics3_611000.htm. The Department uses a
loading factor of 2.0 to account for the costs of
overhead, benefits, and other non-wage expenses.
21 As used in this regulatory impact analysis, the
term ‘‘education administrator’’ is intended to
encompass staff in leadership and senior leadership
roles in an organization, such as a superintendent,
assistant superintendent, or athletic director.
22 As used in this regulatory impact analysis, the
term ‘‘management analyst’’ is intended to
encompass non-legal program and agency staff
including, but not limited to, athletic coaches,
project officers, or athletic department staff.
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athletic associations, the Department
estimates that this work would take 6
hours from an education administrator,
6 hours from a management analyst, and
2 hours for one attorney working on
behalf of each of 41 associations. In
total, the Department estimates this
activity would cost approximately
$6,372,490 in Year 1.
The Department estimates that State
athletic associations in approximately
60 percent of States would opt to revise
their existing policies upon completing
their review. The Department estimates
that some LEA staff would be involved
in this process by, for example,
commenting on draft proposals or
participating in roundtable discussions.
At State athletic associations, the
Department assumes it would take less
time to revise existing policies than to
complete the review of the proposed
regulation; the Department bases its
estimate on the assumption that many
issues to be addressed would have
already been identified during the
initial review. At the LEA level, the
Department assumes one education
administrator would spend 4 hours at
each of 6,509 LEAs on this task. At the
State athletic association level, the
Department estimates this task would
require 4 hours from an education
administrator, 20 hours from a
management analyst, and 12 hours from
an attorney. In total, the Department
estimates it would cost approximately
$2,731,320 in Year 1 for 31 State athletic
associations to revise their policies
governing students’ eligibility to
participate on male or female teams
consistent with their gender identity.
After policies have been revised, the
Department assumes that State athletic
associations would develop and deliver
updated training about their new
policies to staff in affected LEAs. The
Department further assumes that
developing the training would require
10 hours from a management analyst, 10
hours from a lawyer, and 1 hour from
an education administrator to review
and approve the training in each of 31
associations. The Department
anticipates that this training would take
an additional 30 minutes above existing
training obligations for an education
administrator in each of 6,509 LEAs. In
total, the Department estimates that
updated training would cost
approximately $401,130 in Year 1.
In future years, the Department
assumes that approximately five State
athletic associations per year would
undertake a review of their policies on
students’ participation consistent with
their gender identity. The Department
assumes this task would require 1 hour
from an education administrator, 4
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hours from a management analyst, and
2 hours from a lawyer for a total cost of
approximately $3,620 per year
beginning in Year 3.
Each year, the Department assumes
that one of those five associations will
opt to revise their policies. We estimate
that this revision would require 4 hours
from an education administrator, 16
hours from a management analyst, and
10 hours from a lawyer for a total cost
of approximately $3,190 per year
beginning in Year 3.
At the ESE level, the Department
estimates that the proposed regulation
would generate a present value
monetized cost of $10.5 to $10.9 million
over 10 years, assuming a seven percent
and three percent discount rate,
respectively.
Athletic Competition in IHE Entities
The Department estimates that to
comply with the proposed regulation,
all regulated entities, including those
that do not offer an athletic program,
would take time to review the proposed
regulation to determine whether it
applies to their entity, because the
Department generally assumes that all
regulated entities will have some level
of interest in the proposed regulation.
At the IHE level, the Department
assumes this initial review, which is
limited to determining whether the
regulation applies, would take an
education administrator approximately
1 hour to complete at each of 6,045 IHEs
for a total Year 1 cost of $607,580.
For IHEs offering athletic teams, the
Department estimates that these entities
would spend time reviewing their own
policies regarding participation in
athletics for compliance with the
proposed regulation. At the IHE level,
the Department estimates this internal
policy review would require 8 hours
from an education administrator, 8
hours from a management analyst, and
6 hours for an attorney working on
behalf of each of 2,148 IHEs. In total, the
Department estimates that these
activities would cost approximately
$5,043,330 in Year 1.
The Department further estimates that
approximately 20 percent of IHEs
would, as a result of their internal
policy review, opt to make revisions to
their policies. The Department estimates
that such revisions would require 4
hours from one education administrator,
30 hours from a management analyst,
and 16 hours from an attorney at each
of 1,210 IHEs. In total, the Department
estimates that these activities would
have a total cost of $6,326,360 in Year
1.
The Department estimates that the
five named athletic associations and two
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additional national athletic associations
would conduct a review of their policies
as a result of the proposed regulation.
The Department estimates that these
internal policy reviews would require 8
hours each from four education
administrators, 8 hours each from four
management analysts, and 6 hours each
from two attorneys. In total, we estimate
that this review would cost
approximately $53,250 in Year 1.
The Department further estimates
that, as a result of their internal policy
reviews, four national athletic
associations would choose to revise
their policies. The Department estimates
that this revision would require 15
hours each from four education
administrators, 20 hours each from four
management analysts, and 12 hours
each from two attorneys. Further, after
those revisions are finalized, the
Department assumes that approximately
10 percent of IHEs would conduct their
own review of the policies prior to
implementing them. The Department
estimates that this secondary review
would require 8 hours each from an
education administrator and
management analyst and 6 hours from
an attorney. In total, the Department
estimates these revisions would cost
approximately $1,484,960.
The Department further assumes that
each of those four athletic associations
would update training materials
consistent with their revised policies.
The Department assumes that these
revisions would require 8 hours from an
education administrator, 32 hours from
a management analyst, and 10 hours
from an attorney. The Department
further estimates that the updated
training would require an additional
hour for an education administrator at
each of 1,289 IHEs. In total, the
Department estimates that updated
training would cost approximately
$148,970 in Year 1.
The Department assumes that in
future years approximately two national
athletic associations per year would
undertake a review of their policies on
students’ participation consistent with
their gender identity. The Department
assumes this task would require 4 hours
each from four education
administrators, 8 hours each from four
management analysts, and 6 hours each
from two attorneys for a total cost of
approximately $12,000 per year
beginning in Year 3.
The Department assumes that each
year, one of those associations would
opt to revise its policies. The
Department estimates that this revision
would require 8 hours each from four
education administrators, 16 hours each
from four management analysts, and 10
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hours each from two attorneys, for a
total cost of approximately $11,410 per
year beginning in Year 3.
At the IHE level, the Department
estimates the proposed regulation
would generate total present value
monetized costs of $12.9 to $13.4
million over 10 years, assuming a seven
percent and three percent discount rate,
respectively.
3. Regulatory Alternatives Considered
The Department reviewed and
assessed various alternatives prior to
issuing the proposed regulation,
drawing from internal sources as well as
stakeholder feedback OCR received.
Specifically, the Department considered
the following actions: (1) leaving the
current regulations without amendment;
(2) addressing the issue through
guidance; (3) proposing amendments to
the regulations to specify permissible
eligibility requirements; or (4) proposing
a regulatory standard that can be
effectively implemented, consistent
with Title IX, by recipients serving
students at varying grade and education
levels in a variety of male and female
team sports at varying levels of
competition.
For the reasons described above,
Department currently believes
alternative (4) is the best option. In light
of its review of Title IX and its
regulations, stakeholder feedback, and
developments in case law and in the
sex-related eligibility criteria set by
some school districts, States and other
organizations (including athletic
associations and sport governing
bodies), it is the Department’s current
view that the proposed regulation
would better ensure fulfillment of Title
IX’s nondiscrimination guarantee and
would provide more clarity as to how
Title IX applies to sex-related criteria
that would limit or deny students’
eligibility to participate on male or
female teams consistent with their
gender identity.
For these reasons and those explained
throughout the preamble, and in light of
stakeholder feedback received in 2021
and 2022, the Department does not
believe alternative (1), which would
leave the current regulations without
amendment, is a reasonable option. The
Department rejected alternative (2),
which would address the issue through
guidance, because the Department
continues to believe it is necessary to
establish, through regulations, the legal
obligations of a recipient to ensure that
its education program or activity is free
from all forms of sex discrimination.
Guidance documents, which are not
legally binding on a recipient, would
not serve that function. The Department
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rejected alternative (3), which would
propose amendments to the regulations
to specify permissible eligibility
requirements, because it would not
allow for the Department to
appropriately assess whether a
recipient’s criteria are responsive to the
grade or education level of students, the
nature of a particular sport, the level of
competition, or other factors.
After careful consideration of these
alternatives, the Department proposes
that adopting option (4), which is to
propose the regulatory standard put
forward here, would best clarify
recipients’ legal obligations and most
appropriately implement Title IX’s
guarantee of nondiscrimination on the
basis of sex by recipients of Federal
funds in the unique context of athletic
teams offered by schools. Specifically,
the Department’s preliminary
conclusion is that alternative (4) would
help ensure that recipients understand
the standard that would govern if they
adopt or apply sex-related eligibility
criteria for determining student
participation on male or female athletic
teams, in a manner that ensures overall
equality of athletic opportunity based
on sex. The Department’s current view
is that alternative (4) also strikes the
appropriate balance between Title IX’s
guarantee that a recipient’s education
program or activity be free from sex
discrimination and the unique
considerations in the context of
athletics.
4. Accounting Statement
As required by OMB Circular A–4, the
following table is the Department’s
accounting statement showing the
classification of the expenditures
associated with the provisions of the
proposed regulation. This table provides
the Department’s best estimate of the
changes in annualized monetized costs,
benefits, and transfers because of the
proposed regulation.
Category
Benefits
Clarity for recipients and students concerning the standard for adopting and applying sex-related eligibility criteria
to participate on a particular male or female athletic team.
Protecting students’ equal opportunity to participate on male and female teams and the physical and mental health
and other benefits associated with that team participation.
Not quantified.
Not quantified.
Costs (calculated on an annual basis)
3% Discount rate
Preliminary Review of the Regulation .........................................................................................................
Review of Policies .......................................................................................................................................
Revision of Policies .....................................................................................................................................
Updated Training .........................................................................................................................................
Periodic Review of Policies .........................................................................................................................
Periodic Updating of Policies .......................................................................................................................
$172,000
1,396,000
1,200,000
63,000
12,000
11,000
$202,000
1,632,000
1,403,000
73,000
12,000
11,000
Total ......................................................................................................................................................
2,855,000
3,333,000
Clarity of the Regulations
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7% Discount rate
Executive Order 12866 and the
Presidential memorandum ‘‘Plain
Language in Government Writing’’
require each agency to write regulations
that are easy to understand. The
Secretary invites comments on how to
make the proposed regulation easier to
understand, including answers to
questions such as the following:
• Are the requirements in the
proposed regulation clearly stated?
• Does the proposed regulation
contain technical terms or other
wording that interferes with their
clarity?
• Does the format of the proposed
regulation (use of headings,
paragraphing, etc.) aid or reduce their
clarity?
• Would the proposed regulation be
easier to understand if the Department
divided it into more (but shorter)
sections? (A ‘‘section’’ is preceded by
the symbol ‘‘section’’ and a numbered
heading; for example, § 106.41
Athletics.)
• Could the description of the
proposed regulation in the
SUPPLEMENTARY INFORMATION section of
this preamble be more helpful in
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making the proposed regulation easier
to understand? If so, how?
• What else might the Department do
to make the proposed regulation easier
to understand?
To send comments that concern how
the Department could make the
proposed regulation easier to
understand, see the instructions in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act (Small
Business Impacts)
1. Introduction
This analysis, required by the
Regulatory Flexibility Act (RFA),
presents an estimate of the effect of the
proposed regulation on small entities.
The U.S. Small Business Administration
(SBA) Size Standards define
‘‘proprietary IHEs’’ as small businesses
if they are independently owned and
operated, are not dominant in their field
of operation, and have total annual
revenue below $7,000,000. ‘‘Nonprofit
institutions’’ are defined as small
entities if they are independently owned
and operated and not dominant in their
field of operation. ‘‘Public institutions
and LEAs’’ are defined as small
organizations if they are operated by a
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government overseeing a population
below 50,000.
2. Initial Regulatory Flexibility Analysis
As explained in the Establishing a
Baseline (Section 2.B.1) section of the
RIA, there is a lack of high quality,
comprehensive data about whether
particular recipients offer athletic teams,
whether intramural or interscholastic,
whether recipients are likely to revise
athletic eligibility policies as a result of
the proposed regulation, and the likely
impact of any such changes. As a result,
the Department could not definitively
conclude that burdens on small entities
would be sufficiently low to justify
certification under the RFA. If an agency
is unable to make such a certification,
it must prepare an Initial Regulatory
Flexibility Analysis (IRFA) as described
in the RFA. Based on the data available,
the Department has completed an IRFA
and requests comments from affected
small entities.
The purpose of this analysis is to
identify the number of small entities
affected, assess the economic impact of
the proposed regulation on those small
entities, and consider alternatives that
may be less burdensome to small
entities that meet the Department’s
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regulatory objectives. Specifically, the
Department estimates the number of
small entities potentially impacted by
the proposed regulation in the
discussion of Estimated Number of
Small Entities (Section 2.B), assesses the
potential economic impact of the
proposed regulation on those small
entities in the discussion of Estimate of
the Projected Burden of the Proposed
Regulation on Small Entities (Section
2.C), and examines and considers less
burdensome alternatives to the
proposed regulation for small entities in
the Discussion of Significant
Alternatives (Section 2.D). The
Department requests comment on the
extent to which the burden assumptions
described in the RIA are reasonable for
small entities (i.e., whether particular
activities are likely to take more or less
time or cost more or less than otherwise
estimated).
2.A. Reasons for Regulating
The Department proposes this
regulation to provide greater clarity to
recipients and other stakeholders about
the standard that a recipient must meet
under Title IX if it adopts or applies sexrelated criteria that would limit or deny
a student’s eligibility to participate on a
particular male or female athletic team
consistent with their gender identity.
The proposed regulation is consistent
with the current regulations’ framework
for providing equal opportunity
regardless of sex in a recipient’s athletic
program as a whole and with Congress’s
direction that the Title IX regulations
include ‘‘reasonable provisions’’ that
‘‘consider[] the nature of particular
sports.’’ Education Amendments of 1974
section 844.
2.B. Estimated Number of Small Entities
Consistent with the 2020 amendments
to the Department’s Title IX regulations
(see 85 FR 30026), for purposes of
22889
assessing the impacts on small entities,
the Department proposes defining a
‘‘small IHE’’ as a 2-year institution of
higher education with an enrollment of
fewer than 500 full time equivalent
(FTE) or a 4-year IHE with an
enrollment of fewer than 1,000 FTE
based on official 2020 FTE enrollment.
The Department also proposes defining
a ‘‘small LEA’’ as a local education
agency with annual revenues of less
than $7,000,000.
During the 2020–2021 school year,
according to the National Center for
Education Statistics, of the 6,165 Title
IV participating IHEs for which
sufficient data are available, 2,803 were
4-year institutions, 1,644 were 2-year
institutions, and 1,718 were less-than-2year institutions. Of those, 1,226 4-year
institutions, 690 2-year institutions, and
1,650 less-than-2-year institutions met
the Department’s proposed definition of
a ‘‘small IHE.’’
TABLE 1—NUMBER OF SMALL IHES, FALL 2020
4-Year
Total
Not Small .........................................................................................................
Small ................................................................................................................
1,577
1,226
954
690
68
1,650
2,599
3,566
Total ..........................................................................................................
2,803
1,644
1,718
6,165
According to data from the Integrated
Postsecondary Education Data System
(IPEDS), in FY 2019, small IHEs had, on
average, total revenues of approximately
$10,349,540. Therefore, the Department
TABLE 2—NUMBER OF SMALL LEAS, estimates that the proposed regulation
could generate a net cost for small IHEs
FALL 2018
equal to approximately 0.005 percent of
LEAs
annual revenue when they choose to
review their policies. According to data
Not Small ..............................
11,280 from IPEDS, approximately 30 IHEs had
Small .....................................
6,518 total reported nonzero annual revenues
Total ...............................
17,798 of less than $56,000, for which the costs
estimated above would potentially
2.C. Estimate of the Projected Burden of exceed 1 percent of total revenues.
Three of these IHEs reported no
the Proposed Regulation on Small
enrollment data for the Fall 2020. The
Entities
remaining IHEs enrolled, on average, 65
Based on the assumptions described
students in Fall 2020. None of these
in the RIA, an IHE that reviews and
IHEs reported membership in a national
revises its policies as a result of the
athletic association. Twenty-three of the
proposed regulation would see a net
IHEs were vocational or technical
increase in costs of approximately $560
schools and four were administrative
per year (assuming a discount rate of 3
units associated with larger college
percent). The Department notes that this systems. The Department believes it is
estimate assumes an IHE that offers
highly unlikely that these small IHEs
single-sex athletic teams. The
offer athletic teams and, if they do, that
Department believes that smaller IHEs,
they would regularly offer single-sex
such as many offering less-than-2-year
athletic teams.
programs, are less likely than other IHEs
Based on the assumptions described
to offer athletic teams and therefore
in the Cost Estimates (Section 2.B.3)
would experience no additional costs.
discussion of the RIA, an LEA that
During the 2018–2019 school year,
6,518 of the 17,798 LEAs with available
revenue data met the Department’s
proposed definition of a ‘‘small LEA.’’
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2-Year
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engages in an intensive review and
revision of its policies would see a net
increase in costs of approximately $140
per year (assuming a discount rate of 3
percent). The Department notes that
these estimates assume a small LEA that
offers athletic teams. Many small LEAs
may not be impacted by the proposed
regulation, given that they may not offer
athletic teams. The Department
estimates that small LEAs that do not
offer athletic teams would experience
no additional costs.
In 2018–2019, small LEAs had an
average total revenue of approximately
$3,450,911. Therefore, the Department
estimates that the proposed regulation
could generate a net cost for small LEAs
of approximately 0.004 percent of total
revenues. According to data from the
National Center for Education Statistics,
in 2018–2019, six small LEAs reported
nonzero total revenues of less than
$14,000, for which the estimated costs
would potentially exceed 1 percent of
total revenues. Among those, four small
LEAs had zero students enrolled during
the 2018–2019 academic year and the
reported revenues for the remaining two
would result in calculated total
revenues of less than $10 per student.
Based on this analysis, the Department
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believes that these are likely reporting
errors and, therefore, the Department
does not believe the estimated costs
would exceed 1 percent of total
revenues for any affected small LEA.
As part of the 2017–2018 CRDC,
respondents were asked about the
number of male and female athletic
teams offered at the high school level.
In analyzing the data in conjunction
with information from the National
Center on Education Statistics, small
LEAs that served students in high
school were less likely than larger LEAs
to report at least one male or female
team (30 percent of small LEAs
indicated that the item was not
applicable, compared with only 12
percent among non-small LEAs).
Further, among those that reported at
least one male or female athletic team,
small LEAs operated, on average,
approximately one-fifth as many teams
as non-small LEAs (8.7 teams on average
compared to 39.4).
The Department requests comment on
any additional burdens for small
entities.
2.D. Discussion of Significant
Alternatives
As discussed in section 3 above
(Regulatory Alternatives Considered),
the Department reviewed and assessed
various alternatives prior to issuing the
proposed regulation, drawing on
stakeholder feedback OCR received.
Specifically, the Department
considered: (1) leaving the current
regulations without amendment; (2)
addressing the issue through guidance;
(3) proposing amendments to the
regulations to specify permissible
eligibility requirements; or (4) proposing
a regulatory standard that can be
effectively implemented, consistent
with Title IX, by recipients serving
students at varying grade and education
levels in a variety of team sports at
varying levels of competition.
As the Department described in the
Regulatory Alternatives Considered
(section 3) discussion of the RIA, it
currently believes that alternative (4) is
the best option, including that it is the
Department’s current view that the
proposed regulation would better ensure
fulfillment of Title IX’s
nondiscrimination guarantee and would
provide more clarity as to how Title IX
applies to sex-related criteria that would
limit or deny students’ eligibility to
participate on male or female teams
consistent with their gender identity.
After careful consideration of the four
alternatives discussed above, the
Department proposes that adopting
option (4) would best clarify recipients’
legal obligations and most appropriately
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implement Title IX’s guarantee of
nondiscrimination on the basis of sex by
recipients of Federal funds in the
unique context of athletic teams offered
by schools. Specifically, the
Department’s preliminary conclusion is
that alternative (4) would help ensure
recipients understand the standard that
would govern if they adopt or apply sexrelated eligibility criteria for
determining student participation on
male or female athletic teams and
thereby protect students’ equal
opportunity to participate on male and
female teams consistent with Title IX.
The Department’s current view is that
alternative (4) also strikes the
appropriate balance between Title IX’s
guarantee that a recipient’s education
program or activity be free from sex
discrimination and the unique
considerations in the context of
athletics.
The Department also considered
whether proposing different
requirements for smaller-sized
recipients than for mid-sized or larger
ones would reduce any potential burden
on smaller entities. The Department
rejects this alternative at this time
because Title IX rights do not depend on
the size of a recipient, and the proposed
regulation is sufficiently adaptable so
that small entities, along with other
entities, can adopt the approach that
works best for their particular
educational environment.
Executive Order 12250 on Leadership
and Coordination of Nondiscrimination
Laws
Under Executive Order 12250, the
Attorney General has the responsibility
to ‘‘review . . . proposed rules . . . of
the Executive agencies’’ implementing
nondiscrimination statutes such as Title
IX ‘‘in order to identify those which are
inadequate, unclear or unnecessarily
inconsistent.’’ 23 The Attorney General
has delegated that function to the
Assistant Attorney General for the Civil
Rights Division for purposes of
reviewing and approving proposed
rules, 28 CFR 0.51, and the Assistant
Attorney General has reviewed and
approved this proposed rule.
Paperwork Reduction Act of 1995
This proposed regulation does not
contain any information collection
requirements.
Intergovernmental Review: This
program is not subject to Executive
Order 12372 and the regulations in 34
23 Executive Order on Leadership and
Coordination of Nondiscrimination Laws, Exec.
Order No. 12250, 45 FR 72995 (Nov. 4, 1980),
https://tile.loc.gov/storage-services/service/ll/
fedreg/fr045/fr045215/fr045215.pdf.
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CFR part 79 because it is not a program
or activity of the Department that
provides Federal financial assistance.
Assessment of Educational Impact: In
accordance with section 411 of the
General Education Provisions Act, 20
U.S.C. 1221e–4, the Secretary
particularly requests comments on
whether the proposed regulation would
require transmission of information that
any other agency or authority of the
United States gathers or makes
available.
Federalism: Executive Order 13132
requires the Department to ensure
meaningful and timely input by State
and local elected officials in the
development of regulatory policies that
have federalism implications.
‘‘Federalism implications’’ means
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. The proposed
regulation—§ 106.41(b)(2)—may have
federalism implications. We encourage
State and local elected officials to
review and provide comments on this
proposed regulation.
Accessible Format: On request to the
program contact person listed under FOR
FURTHER INFORMATION CONTACT,
individuals with disabilities can obtain
this document in an accessible format.
The Department will provide the
requestor with an accessible format that
may include Rich Text Format (RTF) or
text format (txt), a thumb drive, an MP3
file, braille, large print, audiotape, or
compact disc, or other accessible format.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. You may access the official
edition of the Federal Register and the
Code of Federal Regulations at https://
www.govinfo.gov. At this site you can
view this document, as well as all other
documents of this Department
published in the Federal Register, in
text or Adobe Portable Document
Format (PDF). To use PDF you must
have Adobe Acrobat Reader, which is
available free at the site. You may also
access documents of the Department
published in the Federal Register by
using the article search feature at
https://www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
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Authority: 20 U.S.C. 1681 et seq., unless
otherwise noted.
List of Subjects in 34 CFR Part 106
Civil rights, Education, Sex
discrimination, Youth organizations.
Miguel A. Cardona,
Secretary of Education.
For the reasons discussed in the
preamble, the Department of Education
proposes to amend 34 CFR part 106 to
read as follows:
PART 106—NONDISCRIMINATION ON
THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES
RECEIVING FEDERAL FINANCIAL
ASSISTANCE
1. The authority citation for part 106
continues to read as follows:
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■
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2. Section 106.41 is amended by:
a. Designating the text following the
heading in paragraph (b) as paragraph
(b)(1); and
■ b. Adding paragraph (b)(2).
The addition reads as follows:
■
■
§ 106.41
Athletics.
*
*
*
*
*
(b) * * *
(2) If a recipient adopts or applies sexrelated 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:
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22891
(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.
*
*
*
*
*
[FR Doc. 2023–07601 Filed 4–12–23; 8:45 am]
BILLING CODE 4000–01–P
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]]>Agencies
[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Proposed Rules]
[Pages 22860-22891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07601]
[[Page 22859]]
Vol. 88
Thursday,
No. 71
April 13, 2023
Part V
Department of Education
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34 CFR Part 106
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; Proposed Rule
Federal Register / Vol. 88, No. 71 / Thursday, April 13, 2023 /
Proposed Rules
[[Page 22860]]
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DEPARTMENT OF EDUCATION
34 CFR Part 106
[Docket ID ED-2022-OCR-0143]
RIN 1870-AA19
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
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Education (Department) proposes to
amend its regulations implementing Title IX of the Education Amendments
of 1972 (Title IX) to set out a standard 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. The
proposed regulation would clarify Title IX's application to such sex-
related criteria and the obligation of schools and other recipients of
Federal financial assistance from the Department (referred to below as
``recipients'' or ``schools'') that adopt or apply such criteria to do
so consistent with Title IX's nondiscrimination mandate.
DATES: Comments must be received on or before May 15, 2023.
ADDRESSES: Comments must be submitted via the Federal eRulemaking
Portal at https://www.regulations.gov. However, if you require an
accommodation or cannot otherwise submit your comments via https://www.regulations.gov, please contact the program contact person listed
under FOR FURTHER INFORMATION CONTACT. Comments that are not submitted
via https://www.regulations.gov will not be accepted absent such a
request. The Department will not accept comments submitted after the
comment period closes. To ensure that the Department does not receive
duplicate copies, please submit your comments only once. Additionally,
please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Please go to https://www.regulations.gov to submit your comments electronically. Information
on using https://www.regulations.gov, including instructions for
finding a rule on the site and submitting comments, is available on the
site under ``FAQ.''
Note: The Department's policy is generally to make comments
received from members of the public available for public viewing on the
Federal eRulemaking Portal at https://www.regulations.gov. Therefore,
commenters should include in their comments only information about
themselves that they wish to make publicly available. Commenters should
not include in their comments any information that identifies other
individuals or that permits readers to identify other individuals. If,
for example, your comment describes an experience of someone other than
yourself, please do not identify that individual or include information
that would allow readers to identify that individual. The Department
reserves the right to redact at any time any information in comments
that identifies other individuals, includes information that would
allow readers to identify other individuals, or includes threats of
harm to another person.
FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of
Education, 400 Maryland Ave. SW, PCP-6125, Washington, DC 20202.
Telephone: 202-245-7705. You may also email your questions to
[email protected], but as described above, comments must be
submitted via the Federal eRulemaking Portal at https://www.regulations.gov.
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Department's July 2022 Proposed Rulemaking
On July 12, 2022, the Department published in the Federal Register
a notice of proposed rulemaking to amend its regulations implementing
Title IX (July 2022 NPRM). 87 FR 41390 (July 12, 2022), https://www.federalregister.gov/documents/2022/07/12/2022-13734/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal. In the July 2022 NPRM, the Department
announced plans to issue a separate notice of proposed rulemaking to
address whether and how the Department should amend its Title IX
regulations to clarify what criteria, if any, a recipient of Federal
funding \1\ should be permitted to use to establish students'
eligibility to participate on a particular male or female athletic
team. 87 FR 41537. This notice of proposed rulemaking, referred to
below as the Athletics NPRM, addresses that issue. The comment period
for the July 2022 NPRM closed on September 12, 2022.
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\1\ The text of Title IX states that the statute applies to
``any education program or activity receiving Federal financial
assistance.'' 20 U.S.C. 1681(a). The definition of the term
``Federal financial assistance'' under the Department's Title IX
regulations is not limited to monetary assistance, but encompasses
various types of in-kind assistance, such as a grant or loan of real
or personal property, or provision of the services of Federal
personnel. See 34 CFR 106.2(g)(2) and (3). Throughout this preamble,
terms such as ``Federal funding,'' ``Federal funds,'' and
``federally funded'' are used to refer to ``Federal financial
assistance,'' and are not meant to limit application of the statute
or its implementing regulations to recipients of certain types of
Federal financial assistance.
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Purpose of This Regulatory Action
The purpose of this regulatory action, the Athletics NPRM, is 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 (referred to
below as ``sex-related criteria'' or ``sex-related eligibility
criteria''). The proposed regulation also would provide needed clarity,
in response to questions from stakeholders, on how recipients can
ensure that students have equal opportunity to participate on male and
female athletic teams as required by Title IX.
In particular, the Department proposes amending Sec. 106.41(b) of
its Title IX regulations to provide that, 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 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. As discussed below, the proposed regulation would
not prohibit a recipient's use of sex-related criteria altogether.
Instead, the proposed regulation would require that a recipient meet
this standard for any sex-related criteria that would limit or deny
students' eligibility to participate on a male or female team
consistent with their gender identity. The Department recognizes that
prevention of sports-related injury is an important educational
objective in recipients' athletic programs and that--as courts have
long recognized in cases involving
[[Page 22861]]
sex-separate athletic teams--fairness in competition may be
particularly important for recipients in some sports, grade and
education levels, and levels of competition. The Department anticipates
that some uses of sex-related eligibility criteria would satisfy the
standard in the proposed regulation in some sports, grade and education
levels, and levels of competition.
The Department makes this proposal based on an extensive review of
its regulations implementing Title IX, as well as the statute's text
and legislative history; Federal and State case law; relevant State
laws and the policies of schools and athletic associations; live and
written comments received during a nationwide virtual public hearing on
Title IX held in June 2021; and other information provided by
stakeholders. Executive Order on Regulatory Planning and Review, Exec.
Order No. 12866, 58 FR 51735 (Oct. 4, 1993), https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf.
Costs and Benefits
As further detailed below in the Regulatory Impact Analysis, the
Department estimates that the total monetary cost to recipients of the
proposed regulation over 10 years would be in the range of $23.4
million to $24.4 million, assuming a seven percent and three percent
discount rate, respectively. Because of the lack of available
quantitative data, the Department cannot fully quantify the economic
impact of the proposed regulation. The Department believes that the
benefits associated with the proposed regulation--providing a standard
to clarify Title IX obligations for recipients that adopt or apply sex-
related eligibility criteria and protecting students' equal opportunity
to participate on male and female teams consistent with Title IX--far
outweigh the costs.
In particular, the Department believes the proposed regulation
would offer greater clarity regarding how a recipient can comply with
its nondiscrimination obligation under Title IX if the recipient offers
an athletic program and 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. The
Department recognizes that there is a valuable, even if not readily
quantifiable, benefit of increasing students' equal opportunity to
participate consistent with their gender identity under sex-related
eligibility criteria that meet the proposed regulation's requirements,
which some recipients' current eligibility criteria may not provide.
The Department also recognizes that, without the proposed regulation's
requirements for a recipient's sex-related eligibility criteria, some
students may suffer harm as a result of being unable to gain the
benefits associated with equal opportunity to participate on athletic
teams at school.
Participation in team sports has been associated with many valuable
physical, emotional, academic, and interpersonal benefits for students,
and athletic participation has the potential to help students develop
skills that benefit them in school and throughout life, including
teamwork, discipline, resilience, leadership, confidence, social
skills, and physical fitness. See, e.g., Scott L. Zuckerman et al., The
Behavioral, Psychological, and Social Impacts of Team Sports: A
Systematic Review and Meta-analysis, 49 Physician & Sports Med. 246
(2021); Ryan D. Burns et al., Sports Participation Correlates with
Academic Achievement: Results From a Large Adolescent Sample Within the
2017 U.S. National Youth Risk Behavior Survey, 127 Perceptual & Motor
Skills 448 (2020); President's Council on Sports, Fitness & Nutrition
Sci. Bd., Benefits of Youth Sports (Sept. 17, 2020), https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf; Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910,
916 (7th Cir. 2012) (noting that ``[s]tudies have shown that sports
participation provides important lifetime benefits to participants''
(quoting Dionne L. Koller, Not Just One of the Boys: A Post-Feminist
Critique of Title IX's Vision for Gender Equity in Sports, 43 Conn. L.
Rev. 401, 413 (2010))).
The Department also recognizes that a recipient could incur some
costs in complying with the proposed regulation if it adopts or applies
certain sex-related eligibility criteria for participation on male or
female athletic teams. The Department acknowledges that past agency
statements on Title IX's coverage of discrimination based on gender
identity have varied, and the proposed regulation would shift away from
some of those statements. The Department believes that any costs
associated with an individual recipient's compliance would be minimal
if the proposed regulation is made final. For example, the proposed
regulation may require updating of existing policies or training
materials, but the Department does not expect that the proposed
regulation would require other types of expenditures.
Invitation to Comment: The Department invites you to submit
comments regarding the proposed regulation. To ensure that your
comments have the maximum effect on developing the final regulation,
you should identify clearly the specific part of the proposed
regulation or directed question that each of your comments addresses.
The Department also invites you to assist us in complying with the
specific requirements of Executive Orders 12866 and 13563 (explained
further below) and their overall goal of reducing the regulatory burden
that might result from the proposed regulation. Please let the
Department know of any further ways it may reduce potential costs or
increase potential benefits, while preserving the effective and
efficient administration of the Department's programs and activities.
The Department also welcomes comments on any alternative approaches to
the subjects addressed by the proposed regulation.
During and after the comment period, you may inspect public
comments about the proposed regulation by accessing Regulations.gov.
You may also inspect the comments in person. Please contact the person
listed under FOR FURTHER INFORMATION CONTACT to make arrangements to
inspect the comments in person.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: Upon request, the Department will provide an
appropriate accommodation or auxiliary aid to an individual with a
disability who needs assistance to review the comments or other
documents in the public rulemaking record for the proposed regulation.
To schedule an appointment for this type of accommodation or auxiliary
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Background
The mission of the Department's Office for Civil Rights (OCR) is to
ensure equal access to education and to promote educational excellence
through vigorous enforcement of civil rights in our Nation's schools.
One of the Federal civil rights laws that OCR enforces is Title IX,
which prohibits discrimination on the basis of sex under education
programs or activities that receive Federal financial assistance. 20
U.S.C. 1681-1688. Athletic programs have long been recognized by
Congress, the Department, and Federal courts as an integral part of a
recipient's education program or activity subject to Title IX. See,
e.g., Education Amendments of 1974, Public Law 93-380, section 844, 88
Stat. 484, 612 (Javits Amendment); see also U.S. Dep't of Health,
Educ., and
[[Page 22862]]
Welfare, Final Rule: Nondiscrimination on the Basis of Sex in Education
Programs and Activities Receiving or Benefiting from Federal Financial
Assistance, 40 FR 24128, 24134 (June 4, 1975) (citing cases); U.S.
Dep't of Health, Educ., and Welfare, Office for Civil Rights, A Policy
Interpretation: Title IX and Intercollegiate Athletics, 44 FR 71413
(Dec. 11, 1979) (1979 Policy Interpretation), https://www.govinfo.gov/content/pkg/FR-1979-12-11/pdf/FR-1979-12-11.pdf (also available at
https://www.ed.gov/ocr/docs/t9interp.html); N. Haven Bd. of Educ. v.
Bell, 456 U.S. 512, 516, 531-32, 532 n.22 (1982) (noting the broad
sweep of Title IX; that the original Title IX regulations, reviewed by
Congress, covered athletics; and that a Senate resolution disapproving
the regulations' application to athletics was introduced but not
``acted upon'').
In June 2020, the Supreme Court issued its decision in Bostock v.
Clayton County, 140 S. Ct. 1731 (2020), holding that discrimination
based on sexual orientation or gender identity is sex discrimination
under Title VII of the Civil Rights Act of 1964. In January 2021,
President Joseph R. Biden, Jr. issued Executive Order 13988 on
Preventing and Combating Discrimination on the Basis of Gender Identity
or Sexual Orientation, which set out this Administration's policy ``to
prevent and combat discrimination on the basis of gender identity or
sexual orientation, and to fully enforce Title VII [of the Civil Rights
Act of 1964] and other laws that prohibit discrimination on the basis
of gender identity or sexual orientation.'' Executive Order on
Preventing and Combating Discrimination on the Basis of Gender Identity
or Sexual Orientation, Exec. Order No. 13988, 86 FR 7023 (Jan. 25,
2021), https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf. Executive Order 13988 directed the Secretary of Education,
in consultation with the Attorney General, to ``review all existing
orders, regulations, guidance documents, policies, programs, or other
agency actions'' promulgated under any statute or regulation that
prohibits sex discrimination for their consistency with the stated
policy. Id.
The President subsequently issued Executive Order 14021 to ensure
``that all students [are] guaranteed an educational environment free
from discrimination on the basis of sex, including discrimination in
the form of sexual harassment, which encompasses sexual violence, and
including discrimination on the basis of sexual orientation or gender
identity.'' Executive Order on Guaranteeing an Educational Environment
Free from Discrimination on the Basis of Sex, Including Sexual
Orientation or Gender Identity, Exec. Order No. 14021, 86 FR 13803
(Mar. 11, 2021), https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf. This Executive Order, like Executive Order 13988,
directed the Secretary of Education, in consultation with the Attorney
General, to review all existing regulations, orders, guidance
documents, policies and any other similar agency actions for
consistency with Title IX, other governing laws, and the stated policy.
As these Executive Orders directed, the Department extensively
reviewed its Title IX regulations and policy documents for consistency
with Title IX's statutory prohibition on sex discrimination in
federally funded education programs or activities. Based on this review
and consideration of, among other things, substantial input from
stakeholders, the Department published the July 2022 NPRM to amend its
regulations implementing Title IX. 87 FR 41390.
In the course of its review, the Department also received feedback
that the current regulations do not explicitly address the criteria, if
any, a recipient may use to determine a student's eligibility to
participate on a male or female athletic team consistent with Title IX
and the Department's regulations. Based on this review and
consideration of substantial input from stakeholders, the Department
proposes amending its current regulations to address the unique
circumstances of male and female athletic teams consistent with Title
IX's prohibition on discrimination on the basis of sex. In particular,
this Athletics NPRM proposes amending the Department's Title IX
regulations to set out a standard 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 male or female athletic
teams consistent with their gender identity.
History of Title IX's Application to Athletic Programs
Enacted in 1972, Title IX provides that ``[n]o person in the United
States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a). Title IX includes several statutory exemptions and
exceptions from its coverage, including for the membership practices of
certain organizations, admissions to private undergraduate colleges,
educational institutions that train individuals for the military
services or merchant marine, and educational institutions that are
controlled by a religious organization to the extent that application
of Title IX would be inconsistent with the religious tenets of the
controlling organization. 20 U.S.C. 1681(a)(1)-(9). Title IX authorizes
and directs the Department, as well as other agencies, ``to effectuate
the provisions of section 1681 of this title with respect to such
program or activity by issuing rules, regulations, or orders of general
applicability which shall be consistent with achievement of the
objectives of the statute authorizing the financial assistance in
connection with which the action is taken.'' 20 U.S.C. 1682.
In 1974, Congress enacted the Javits Amendment in response to
concerns that Title IX would disrupt existing practices in
intercollegiate athletics. It read:
The [Department of Health, Education, and Welfare (HEW)]
Secretary shall prepare and publish, not later than 30 days after
the date of enactment of this Act, proposed regulations implementing
the provisions of title IX of the Education Amendments of 1972
relating to the prohibition of sex discrimination in federally
assisted education programs which shall include with respect to
intercollegiate athletic activities reasonable provisions
considering the nature of particular sports.
Education Amendments of 1974 section 844; see also S. Rep. No. 93-1026
(1974) (Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 4206, 4271.
In 1975, HEW, the Department's predecessor, first promulgated
regulations under Title IX \2\ after multiple congressional hearings.
121 Cong. Rec. 20467 (1975) (statement of Sen. Birch Bayh). The
regulations were subject to a statutory ``laying before'' provision,
designed to afford Congress an opportunity to examine the proposed
regulations and disapprove them by resolution within 45 days if
Congress deemed them to be inconsistent with Title IX. N. Haven Bd. of
Educ., 456 U.S. at 531-32. The Supreme Court has stated that the fact
that no such disapproval resolution was adopted
[[Page 22863]]
``strongly implies that the [Title IX] regulations accurately reflect
congressional intent.'' Grove City Coll. v. Bell, 465 U.S. 555, 568
(1984); \3\ see also N. Haven Bd. of Educ., 456 U.S. at 533-35.
---------------------------------------------------------------------------
\2\ 45 CFR part 86 (1975). In 1980, Congress created the U.S.
Department of Education. Public Law 96-88, section 201, 93 Stat.
669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 5, 1980).
By operation of law, all of HEW's determinations, rules, and
regulations continued in effect, and all functions of HEW's Office
for Civil Rights with respect to educational programs were
transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The
regulations implementing Title IX were recodified without
substantive change in 34 CFR part 106. See 45 FR 30802, 30955-65
(May 9, 1980).
\3\ The Supreme Court in NCAA v. Smith subsequently described
Grove City College as holding ``that Title IX, as originally
enacted, covered only the specific program receiving federal
funding.'' 525 U.S. 459, 466 n.4 (1999) (citing Grove City Coll.,
465 U.S. at 570-74). That part of the Court's holding was superseded
by the Civil Rights Restoration Act (CRRA), in which Congress
``correct[ed] what it considered to be an unacceptable''
interpretation by the Supreme Court of the scope of Title IX. Id.
(quoting Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 73
(1992)). The CRRA codifies Congress's interpretation of the terms
``program or activity'' and ``program'' as encompassing ``all of the
operations of * * * . . . (2)(A) a college, university, or other
postsecondary institution . . . * * * or (B) a local education
agency . . . * * * or other school system . . .* * * any part of
which is extended Federal financial assistance.'' 20 U.S.C. 1687.
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Since 1975, the Department's regulations have specified that
separate or differential treatment on the basis of sex is presumptively
a form of prohibited sex discrimination. See, e.g., 34 CFR
106.31(b)(4), (7) (``Except as provided for in this subpart, in
providing any aid, benefit, or service to a student, a recipient shall
not, on the basis of sex . . . [s]ubject any person to separate or
different rules of behavior, sanctions, or other treatment; . . . [or]
[o]therwise limit any person in the enjoyment of any right, privilege,
advantage, or opportunity.''); see also id. at 106.34(a) (``Except as
provided for in this section or otherwise in this part, a recipient
shall not provide or otherwise carry out any of its education programs
or activities separately on the basis of sex.''). These regulations
reflect the understanding that subjecting students to differential
treatment on the basis of sex in the education context is presumptively
harmful and cannot be justified by reliance on ``overbroad
generalizations about the different talents, capacities, or preferences
of males and females.'' United States v. Virginia, 518 U.S. 515, 533
(1996).
Despite the general principle reflected in the Department's
regulations that differential treatment or separation based on sex
presumptively results in prohibited sex discrimination, Congress
indicated in the Javits Amendment that a different approach to
athletics was appropriate and that the Title IX regulations should
include ``reasonable'' provisions governing intercollegiate athletic
activities in light of ``the nature of particular sports.'' Education
Amendments of 1974 section 844. HEW responded to this congressional
direction by promulgating a regulation permitting sex separation in
certain circumstances in ``any interscholastic, intercollegiate, club
or intramural athletics offered by a recipient.'' 45 CFR 86.41 (1975)
(currently codified at 34 CFR 106.41). As noted above, Congress had the
opportunity to examine and disapprove HEW's regulations, including this
athletics provision. Congress did not disapprove them, and the Title IX
regulations took effect on July 21, 1975.
The now-longstanding athletics regulation states that ``[n]o person
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, be treated differently from another person or
otherwise be discriminated against in any interscholastic,
intercollegiate, club or intramural athletics offered by a recipient,
and no recipient shall provide any such athletics separately on such
basis.'' 34 CFR 106.41(a). The regulation then provides that when
selection for an athletic team is based upon competitive skill or the
activity involved is a contact sport, a recipient may offer sex-
separate teams (though it is not required to do so). 34 CFR 106.41(b)
(``[A] recipient may operate or sponsor separate teams for members of
each sex where selection for such teams is based upon competitive skill
or the activity involved is a contact sport.''). The regulation
contemplates that in some circumstances, female students may try out
for a male team, or vice versa: ``[W]here a recipient operates or
sponsors a team in a particular sport for members of one sex but
operates or sponsors no such team for members of the other sex, and
athletic opportunities for members of that sex have previously been
limited, members of the excluded sex must be allowed to try-out for the
team offered unless the sport involved is a contact sport.'' Id. The
regulation thus recognizes that in some instances individual students
may be denied the opportunity to participate on a particular team on
the basis of sex.
Importantly, the regulation goes on to say that a recipient must
still provide equal opportunity in its athletic program as a whole. 34
CFR 106.41(c). Thus, a recipient that excludes a boy from the girls'
golf team and does not offer a boys' golf team, for example, would have
to provide equal opportunity based on sex across the totality of its
athletic program, and disparities in overall participation
opportunities in that program, including on male and female teams,
could violate Sec. 106.41(c), depending on the facts at issue. As one
court explained, ``the provisions of title IX grant flexibility to the
recipient of federal funds to organize its athletic program as it
wishes, so long as the goal of equal athletic opportunity is met.''
Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 171 (3d Cir. 1993)
(citation omitted); see also U.S. Dep't of Health, Educ., and Welfare,
Office for Civil Rights, Sex Discrimination in Athletic Programs, 40 FR
52655, 52656 (Nov. 11, 1975) (explaining that ``an institution would
not be effectively accommodating the interests and abilities of women
if it abolished all its women's teams and opened up its men's teams to
women, but only a few women were able to qualify for the men's team'').
Although the Department's Title IX regulations have never
explicitly addressed the criteria, if any, a recipient may use to
determine a student's eligibility to participate on a male or female
athletic team, OCR has previously articulated various interpretations
of current Sec. 106.41(b) as applied to transgender students (i.e.,
students whose gender identity is different from the sex they were
assigned at birth). In May 2016, OCR and the Civil Rights Division of
the U.S. Department of Justice (DOJ) issued a joint Dear Colleague
Letter stating that while a recipient may not ``adopt or adhere to
requirements that rely on overly broad generalizations or stereotypes .
. . or others' discomfort with transgender students[,] Title IX does
not prohibit age-appropriate, tailored requirements based on sound,
current, and research-based medical knowledge about the impact of the
students' participation on the competitive fairness or physical safety
of the sport.'' U.S. Dep't of Justice, Civil Rights Division, and U.S.
Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on Title
IX and Transgender Students at 3 (May 13, 2016) (rescinded in 2017)
(2016 Dear Colleague Letter on Title IX and Transgender Students)
(footnote omitted), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. In cases alleging gender
identity discrimination in sex-separate programs and activities outside
the context of athletic teams--e.g., denying students access to sex-
separate facilities consistent with their gender identity--several
Federal courts have held that the Department's interpretation of 34 CFR
106.33 of its Title IX regulations, as reflected in the 2016 Dear
Colleague Letter on Title IX and Transgender Students, was reasonable.
See, e.g., G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d
709, 723 (4th Cir. 2016) (according controlling weight to the
``Department's interpretation of its own regulation,
[[Page 22864]]
Sec. 106.33''), vacated and remanded, 137 S. Ct. 1239, 197 L. Ed. 2d
460 (2017); Bd. of Educ. of the Highland Loc. Sch. Dist. v. U.S. Dep't
of Educ., 208 F. Supp. 3d 850, 870 (S.D. Ohio 2016) (same); Whitaker v.
Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., No. 16-CV-943-PP, 2016
WL 5239829, at *3 (E.D. Wis. Sept. 22, 2016) (same), aff'd sub nom.
Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,
858 F.3d 1034 (7th Cir. 2017), abrogated on other grounds as recognized
by Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir.
2020).
In August 2016, however, a Federal district court issued an opinion
finding that the interpretation set out in the 2016 Dear Colleague
Letter on Title IX and Transgender Students did not undergo the notice-
and-comment process required by the Administrative Procedure Act and
was contrary to law. The district court granted a preliminary
injunction barring the Departments of Education and Justice from
relying on the 2016 Dear Colleague Letter on Title IX and Transgender
Students in their enforcement of Title IX with respect to access to
certain sex-separate facilities. Texas v. United States, 201 F. Supp.
3d 810, 836 (N.D. Tex. 2016); see also Texas v. United States, No.
7:16-CV-00054-O, 2016 WL 7852331, at *4 (N.D. Tex. Oct. 18, 2016)
(clarifying that the preliminary injunction is ``limited to the issue
of access to intimate facilities''). In February 2017, DOJ's Civil
Rights Division and OCR issued a letter withdrawing the statements of
policy and guidance reflected in the 2016 Dear Colleague Letter on
Title IX and Transgender Students, stating that they made this change
``in order to further and more completely consider the legal issues
involved.'' U.S. Dep't of Justice, Civil Rights Division, and U.S.
Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on
Transgender Students at 1 (Feb. 22, 2017) (under review in light of
Exec. Order No. 13988), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf. On March 3, 2017, the Federal
district court dissolved the preliminary injunction when the plaintiffs
voluntarily dismissed the lawsuit. Plaintiff's Notice of Voluntary
Dismissal, Texas v. United States, No. 7:16-cv-00054 (N.D. Tex. Mar. 3,
2017), ECF No. 128.
In the months immediately following the Supreme Court's June 2020
decision in Bostock, 140 S. Ct. 1731, OCR made several statements on
Bostock's application to Title IX. For instance, on August 31, 2020,
OCR issued a revised Letter of Impending Enforcement Action in its
investigation of the Connecticut Interscholastic Athletic Conference
(CIAC) and six school districts. OCR Case No. 01-19-4025, Conn.
Interscholastic Athletic Conf. et al. (Aug. 31, 2020) (revised letter
of impending enforcement action) (archived and marked not for reliance
in February 2021) (Revised CIAC Letter), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a2.pdf. The letter
stated that OCR was providing an update in light of Bostock and took
the position that when a recipient provides ``separate teams for
members of each sex'' under 34 C.F.R. Sec. 106.41(b), ``the recipient
must separate those teams on the basis of biological sex'' and not on
the basis of gender identity. Revised CIAC Letter at 36. The letter
departed from OCR's typical practice concerning enforcement letters by
stating that it ``constitutes a formal statement of OCR's
interpretation of Title IX and its implementing regulations and should
be relied upon, cited, and construed as such.'' Id. at 49.
In January 2021, the Department posted a memorandum from its
General Counsel's office commenting on Bostock's application to Title
IX. U.S. Dep't of Educ., Memorandum from Principal Deputy General
Counsel delegated the authority and duties of the General Counsel Reed
D. Rubinstein to Kimberly M. Richey, Acting Assistant Secretary of the
Office for Civil Rights re Bostock v. Clayton Cnty. (Jan. 8, 2021)
(archived and marked not for reliance in March 2021) (Rubinstein
Memorandum), https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf. The Rubinstein Memorandum stated
that ``if a recipient chooses to provide `separate teams for members of
each sex' under 34 C.F.R Sec. 106.41(b), then it must separate those
teams solely on the basis of biological sex, male or female, and not on
the basis of transgender status or sexual orientation, to comply with
Title IX.''
In February 2021, OCR withdrew the Revised CIAC Letter, citing its
inconsistency with Executive Order 13988 (describing Bostock) and the
fact that it was issued without following the appropriate procedures
required for issuing guidance.\4\ Similarly, in March 2021, the
Department archived the Rubinstein Memorandum and marked it ``not for
reliance,'' citing its inconsistency with Executive Order 13988 and the
fact that it was issued without the review required under the then-
applicable Department's Rulemaking and Guidance Procedures, 85 FR 62597
(Oct. 5, 2020) (rescinded effective September 29, 2021).
---------------------------------------------------------------------------
\4\ OCR Case No. 01-19-4025, Conn. Interscholastic Athletic
Conf. et al. (Feb. 23, 2021) (letter withdrawing Revised CIAC
Letter), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a5.pdf. In December 2022, in related
Federal court litigation over CIAC's athletic eligibility policy, a
panel of the U.S. Court of Appeals for the Second Circuit noted that
the policy--which permits high school students to participate on
male and female athletic teams consistent with their gender
identity--could not be said to fall ``within the scope of Title IX's
proscriptions.'' Soule by Stanescu v. Conn. Ass'n of Schs., 57 F.4th
43, 55 (2d Cir. 2022). Subsequently, the Second Circuit vacated the
panel's opinion pending rehearing en banc. See Soule by Stanescu v.
Conn. Ass'n of Schs., No. 21-1365 (2d Cir. Feb. 13, 2023).
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In June 2021, the Departments of Justice and Education filed a
Statement of Interest in a Title IX and equal protection challenge to a
State law limiting students' eligibility to participate on female
athletic teams consistent with their gender identity, emphasizing that
``[a]t its core, Title IX is about ensuring equal educational
opportunities to all students regardless of their sex.'' Statement of
Interest of the United States at 12, B.P.J. v. W. Va. State Bd. of
Educ., 550 F. Supp. 3d 347 (S.D. W. Va. 2021) (No. 2:21-cv-00316),
https://www.justice.gov/crt/case-document/file/1405541/download
(supporting the Title IX and equal protection claims raised by a
transgender girl in middle school challenging the application of a
State law prohibiting her from participating on her school's girls'
athletic teams).\5\ In April 2023, the Department of Justice filed a
brief as amicus curiae in support of plaintiff-appellant B.P.J.'s
appeal to the Fourth Circuit. See Brief for the United States as Amicus
Curiae in Support of Plaintiff-Appellant and Urging Reversal, B.P.J. v.
W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Apr.
[[Page 22865]]
3, 2023), https://www.justice.gov/crt/case-document/file/1577891/download.
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\5\ The Federal district court initially granted a preliminary
injunction barring implementation of the West Virginia law to
exclude a transgender girl in middle school from participating on
her school's girls' track and cross-country teams, B.P.J., 550 F.
Supp. 3d at 357. On January 5, 2023, the court granted a motion for
summary judgment upholding West Virginia's law, concluding that the
law does not violate the Equal Protection Clause or Title IX, and
dissolving the preliminary injunction. B.P.J. v. W. Va. State Bd. of
Educ., No. 2:21-cv-00316, 2023 WL 111875, at *8-10 (S.D. W. Va. Jan.
5, 2023), appeal docketed, No. 23-1078 (4th Cir. Jan. 24, 2023). On
February 22, 2023, a panel of the Fourth Circuit granted B.P.J.'s
Motion for Stay of the District Court's January 5, 2023, Order
dissolving the preliminary injunction pending appeal. See B.P.J. v.
W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Feb. 22, 2023). On
March 9, 2023, the Defendants-Appellees submitted an application to
the U.S. Supreme Court seeking to vacate the Fourth Circuit's
injunction pending appeal. See Application to Vacate the Injunction
Entered by the United States Court of Appeals for the Fourth
Circuit, W. Va. State Bd. of Educ. v. B.P.J., No. 22A800 (U.S. Mar.
9, 2023). The discussion below further addresses the district
court's now-dissolved January 5, 2023, Order.
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Separately, also in June 2021, in light of the Supreme Court's
decision in Bostock, the Department issued a Notice of Interpretation
to explain the Department's enforcement authority over discrimination
based on sexual orientation and gender identity under Title IX. U.S.
Dep't of Educ., Office for Civil Rights, Notice of Interpretation:
Enforcement of Title IX with Respect to Discrimination Based on Sexual
Orientation and Gender Identity in Light of Bostock v. Clayton County,
86 FR 32637 (June 22, 2021) (2021 Bostock Notice of Interpretation),
https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf.\6\ Against this backdrop and for reasons described in this
preamble, the Secretary proposes to amend the Department's Title IX
regulation in 34 CFR 106.41.
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\6\ A Federal district court preliminarily enjoined and
restrained the Department from implementing the 2021 Bostock Notice
of Interpretation against 20 States. See Tennessee v. U.S. Dep't of
Educ., No. 3:21-cv-308, 2022 WL 2791450, at *24 (E.D. Tenn. July 15,
2022), appeal docketed, No. 22-5807 (6th Cir. Sept. 13, 2022). This
Athletics NPRM is not based on the 2021 Bostock Notice of
Interpretation.
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The Department's Review of Its Title IX Regulations
On April 6, 2021, OCR issued a letter to students, educators, and
other stakeholders that informed them about the steps the Department
was taking to review its regulations, orders, guidance, policies, and
other similar agency actions under Title IX. U.S. Dep't of Educ.,
Office for Civil Rights, Letter from Acting Assistant Secretary Suzanne
B. Goldberg to Students, Educators, and other Stakeholders re Executive
Order 14021 (Apr. 6, 2021), https://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf. As directed by Executive
Order 14021, this comprehensive review included OCR's review of all
agency actions to determine whether changes to the Department's Title
IX regulations are necessary to fulfill Title IX's mandate and OCR's
commitment to ensuring equal and nondiscriminatory access to education
for students at all education levels, regardless of sex. See id. at 2.
On May 20, 2021, OCR published a notice in the Federal Register
announcing a nationwide virtual public hearing (referred to below as
the ``June 2021 Title IX Public Hearing'') to gather information for
the purpose of improving enforcement of Title IX. U.S. Dep't of Educ.,
Office for Civil Rights, Announcement of Public Hearing; Title IX of
the Education Amendments of 1972, 86 FR 27429 (May 20, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf. OCR
expressed particular interest in comments about discrimination based on
gender identity in educational environments, as well as other topics.
Id. The virtual hearing was held from June 7, 2021, to June 11, 2021,
during which time OCR received live comments through the virtual
hearing platform and written comments via email. Over 280 students,
parents, teachers, faculty members, school staff, administrators, and
other members of the public provided live comments, and OCR received
over 30,000 written comments by email. The transcript of live comments
is available at https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf, and the written comments may be
viewed at https://www2.ed.gov/about/offices/list/ocr/public-hearing.html.
In addition to soliciting live and written comments as part of the
June 2021 Title IX Public Hearing, OCR also conducted listening
sessions with stakeholders expressing a variety of views, including
individuals and organizations focused on Title IX and athletics. Among
these stakeholders were students, including current and former student-
athletes; parents; athletic associations; organizations representing
elementary schools, secondary schools, and postsecondary institutions;
organizations representing teachers, administrators, parents, and
current and former student-athletes; attorneys representing students
and schools; State officials; Title IX Coordinators and other school
administrators; and individuals who provide Title IX training to
schools.
In the June 2021 Title IX Public Hearing, in listening sessions,
and in correspondence, stakeholders posed questions and presented
concerns regarding Title IX's application to determinations of whether
a student is eligible to participate on a recipient's male or female
athletic team, particularly in light of the shifting OCR guidance on
this issue and the divergent approaches to such eligibility criteria
taken by State laws and organizations that set eligibility rules for
specific sports. Stakeholders highlighted the many benefits that
students gain from participating on athletic teams, including learning
skills that promote personal health, wellness, and leadership; being
part of a team; and fostering social relationships.
Some stakeholders asserted that allowing students to participate on
male or female athletic teams that align with their gender identity is
consistent with Title IX's guarantee of nondiscrimination on the basis
of sex. In the same vein, some stakeholders stressed that preventing
transgender students from participating on their schools' male or
female athletic teams consistent with their gender identity deprives
those students of the benefits of athletic team participation because
it is not tenable to require a transgender girl or woman to participate
on a male athletic team or a transgender boy or man to participate on a
female athletic team. Some stakeholders expressed concern that some
policies and State laws restricting athletic eligibility to a student's
sex assigned at birth may also disqualify intersex students (generally,
persons with variations in physical sex characteristics, including
variations in anatomy, hormones, chromosomes or other traits that
differ from expectations generally associated with male and female
bodies) from participating on male or female teams consistent with
their gender identity if the sex assigned to those students at birth
does not accurately reflect their gender identity. Stakeholders also
expressed concern that certain policies and State laws might preclude
nonbinary students (generally, persons who do not identify as
exclusively male or female) from participating on either male or female
teams, including in contexts in which those students' school records or
other official documents indicate a nonbinary gender marker and the
school's eligibility criteria limit participation to students with a
male or female gender marker. By contrast, other stakeholders expressed
concerns that participation of some transgender girls and women on
female athletic teams could deprive other girls and women of access to
the benefits associated with participation on athletic teams. Many
stakeholders representing a range of views urged the Department to
clarify whether and, if so, how students can participate on male or
female athletic teams that align with their gender identity while
ensuring fair and safe sports participation for all.
The Department's July 2022 NPRM proposed amendments to the
Department's Title IX regulations would clarify, among other things,
that Title IX prohibits discrimination based on gender identity and sex
characteristics in federally funded education programs and activities.
See 87 FR 41571. In addition, the proposed amendments would clarify
that (a) in the limited circumstances in which Title IX or the
Department's Title IX regulations permit different treatment or
separation on the basis of sex, a recipient must not carry out such
different treatment or
[[Page 22866]]
separation in a manner that discriminates on the basis of sex by
subjecting a person to more than de minimis harm, unless otherwise
permitted by Title IX or the Department's Title IX regulations; and (b)
a policy or practice that prevents a person from participating in an
education program or activity consistent with their gender identity
subjects a person to more than de minimis harm on the basis of sex. Id.
at 41534-37. The July 2022 NPRM also recognized that despite Title IX's
general prohibition on sex discrimination against an individual, there
are circumscribed situations, including with respect to sex-related
eligibility criteria for male or female teams, in which Title IX or its
regulations may permit a recipient to separate students on the basis of
sex, even when doing so may cause some students more than de minimis
harm. Id. at 41537. The July 2022 NPRM did not propose any changes to
the Department's Title IX regulation governing athletics, however,
instead reserving that issue for this Athletics NPRM. Id.
The Department now proposes amending its Title IX regulations to
help ensure implementation of Title IX in what Congress has recognized
as the unique context of athletics. Cf. Education Amendments of 1974
section 844 (specifying a requirement for ``reasonable provisions
considering the nature of particular sports'' in the Department's Title
IX regulations regarding intercollegiate athletics). The Department
acknowledges the interest of some stakeholders in preserving current
athletic-team policies and procedures regarding sex-related eligibility
criteria and in avoiding potential additional costs to comply with the
proposed regulation. However, the Department believes that the current
regulations are not sufficiently clear to ensure Title IX's
nondiscrimination requirement is fulfilled if a recipient adopts or
applies sex-related criteria that would limit or deny students'
eligibility to participate on male or female athletic teams consistent
with their gender identity. This clarification regarding Title IX's
application to sex-related eligibility criteria is particularly
important as some States have adopted criteria that categorically limit
transgender students' eligibility to participate on male or female
athletic teams consistent with their gender identity. See, e.g., Ind.
Code section 20-33-13-4 (2022) (``A male, based on a student's
biological sex at birth in accordance with the student's genetics and
reproductive biology, may not participate on an athletic team or sport
designated under this section as being a female, women's, or girls'
athletic team or sport.''); W. Va. Code section 18-2-25d(c)(1) (2021)
(designating participation on interscholastic, intercollegiate,
intramural, or club athletic teams sponsored by any public secondary
school or state institution of higher education as based on
``biological sex''); Idaho Code section 33-6203 (2020) (same). In so
doing, these State laws have created additional uncertainty for
stakeholders regarding what Title IX permits and requires with respect
to male and female teams.
The standard proposed in this Athletics NPRM is consistent with the
framework in the current Sec. 106.41 for providing overall equal
athletic opportunity regardless of sex for students who seek to
participate in a recipient's athletic program. Taking into account
extensive stakeholder questions about Title IX's application to sex-
related eligibility criteria for male and female athletic teams, the
Department's proposed regulation would provide that 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, be
substantially related to the achievement of an important educational
objective and minimize harms to students whose opportunity to
participate on a male or female team consistent with their gender
identity would be limited or denied. The proposed regulation would
continue to recognize, as has current Sec. 106.41(b) since its
promulgation in 1975, that some sex-related distinctions in sports are
permissible as long as a recipient ensures overall equal athletic
participation opportunity regardless of sex.
Further, it is the Department's intent that the severability
clauses set out in the relevant subparts of 34 CFR part 106 would
remain applicable to the proposed changes in this Athletics NPRM. It is
also the Department's position that the proposed regulation, if adopted
as a final rule, would serve an important purpose that is distinct from
other provisions in part 106 and would operate independently of other
regulatory provisions, such that any potential invalidity of the
proposed regulation should not affect any other provisions in part 106.
Significant Proposed Regulation:
Section 106.41 Athletics
Statute: Title IX prohibits discrimination on the basis of sex
under any education program or activity receiving Federal financial
assistance. 20 U.S.C. 1681(a). The Department has the authority to
regulate with regard to discrimination on the basis of sex in education
programs or activities receiving Federal financial assistance,
specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3
and 3474. And the Javits Amendment reflects that the Department has
discretion to tailor its regulations in the athletics context that it
might not have in other contexts and to adopt ``reasonable provisions
considering the nature of particular sports.'' Education Amendments of
1974 section 844.
Current regulations: Paragraph (a) of current Sec. 106.41
establishes a baseline rule that no person shall, on the basis of sex,
be excluded from participation in, be denied the benefits of, be
treated differently from another person, or otherwise be discriminated
against in any interscholastic, intercollegiate, club or intramural
athletics offered by a recipient, and that no recipient may provide any
such athletics separately on the basis of sex. Section 106.41(b) sets
forth an exception that permits a recipient to offer separate male and
female athletic teams when selection for such teams is based upon
competitive skill or the activity involved is a contact sport.
Paragraph (b) also states that when a recipient operates or sponsors a
team in a particular sport for members of one sex but operates or
sponsors no such team for members of the excluded sex, and athletic
opportunities for members of the excluded sex have previously been
limited, members of the excluded sex must be allowed to try out for the
team offered unless the sport involved is a contact sport. The same
paragraph lists examples of contact sports. Paragraph (c) states that
even when a recipient offers separate male and female athletic teams, a
recipient must provide overall equal athletic opportunity for the
sexes.
Proposed regulation: The Department proposes adding to Sec.
106.41(b) a standard 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 team
consistent with their gender identity. Specifically, the Department
proposes renumbering current Sec. 106.41(b) as proposed Sec.
106.41(b)(1) and adding a new paragraph as proposed Sec. 106.41(b)(2)
to state that any such criteria a recipient adopts or applies 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)
[[Page 22867]]
minimize harms to students whose opportunity to participate on a male
or female team consistent with their gender identity would be limited
or denied.
Reasons: In light of its review of Title IX and its regulations,
stakeholder feedback, and developments in case law and in the sex-
related eligibility criteria set by some school districts, States, and
other organizations (including athletic associations and sport
governing bodies), the Department proposes amending its regulations to
provide greater clarity as to the standard that applies 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 athletic team
consistent with their gender identity. The proposed regulation is
consistent with Sec. 106.41's framework for providing equal
opportunity regardless of sex in a recipient's athletic program as a
whole and with Congress's direction that the Title IX regulations
include ``reasonable provisions'' regarding athletics that ``consider[
] the nature of particular sports.'' Education Amendments of 1974
section 844.
Development of the Proposed Regulation
In listening sessions, correspondence, and through the June 2021
Title IX Public Hearing, OCR received feedback from stakeholders on the
educational and other benefits of student participation on athletic
teams and the application of Title IX's nondiscrimination mandate to
all student-athletes. The feedback also focused on how schools can
provide nondiscriminatory athletic opportunities for all students and
on factors that influence fairness in competition and prevention of
sports-related injury. Amidst this variety of views, OCR heard that
students, recipients, athletic associations, and others need clarity
from the Department about the legal standards that would apply to
ensure Title IX's nondiscrimination requirement is fulfilled if a
recipient adopts or applies sex-related criteria that would limit or
deny students' eligibility to participate on male or female athletic
teams consistent with their gender identity. In developing the proposed
regulation, the Department reviewed this stakeholder input as well as
Title IX's statutory text and purpose, Title IX's regulatory framework,
courts' interpretations of Title IX and the U.S. Constitution, and the
existing approaches to sex-related eligibility criteria taken by a wide
range of States, school districts and other organizations, including
athletic associations and sport governing bodies.\7\
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\7\ The policies of athletic associations, sport governing
bodies, State agencies, and other entities, or excerpts thereof
referenced throughout this document are examples of various
approaches that these entities have taken regarding sex-related
eligibility criteria for male and female athletic teams. The
Department includes them here to illustrate various points in this
preamble; it does not require a recipient to adopt or apply the
examples mentioned here, and their inclusion in this preamble is not
an endorsement by the Department of any policy or practice, nor does
it indicate whether the policy or practice would comply with the
standard proposed in this Athletics NPRM. Any links to websites from
outside of the Department are provided for the reader's convenience
only. The Department does not control or guarantee the accuracy,
relevance, timeliness, or completeness of this outside information.
Examples and links included in this preamble do not constitute legal
advice, create legal obligations, or impose new requirements.
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The Text and Purpose of Title IX
In developing the proposed regulation, the Department considered
Title IX's statutory text, purpose, and legislative history, as well as
the current regulatory framework and constitutional principles.
As noted above, Congress has been clear that Title IX prohibits sex
discrimination in a recipient's athletic program and, recognizing the
unique circumstances of athletics, that the Title IX regulations should
include ``reasonable provisions'' governing athletic activities that
``consider[ ] the nature of particular sports.'' Education Amendments
of 1974 section 844. The Department's now-longstanding Title IX
regulation on athletics therefore reflects the unique circumstances of
athletics, including intercollegiate athletics. The Department's
proposed regulation would similarly reflect the unique circumstances of
athletics by considering whether sex-related criteria adopted or
applied by a recipient to determine eligibility for male and female
athletic teams, for each sport, level of competition, and grade or
education level, are substantially related to the achievement of an
important educational objective and minimize harms to students whose
opportunity to participate on a male or female team consistent with
their gender identity would be limited or denied.
The proposed regulation would thus preserve and build on the
current regulatory framework the Department has long used to evaluate
whether a recipient offers its students an equal opportunity to
participate in athletics consistent with Title IX. It is also
consistent with current Sec. 106.41, which prohibits sex
discrimination in a recipient's athletic program in paragraph (a) and
recognizes in paragraph (c) that while a recipient must provide equal
opportunity regardless of sex in its athletic program as a whole, it
may, in limited and defined circumstances set out in paragraph (b),
deny individual students the opportunity to participate on a particular
male or female team on the basis of their sex. In addition, the
proposed regulation is consistent with OCR's longstanding policy of
encouraging compliance with the Department's Title IX athletics
regulation ``in a flexible manner that expands, rather than limits,
student athletic opportunities.'' See Dear Colleague Letter: Athletic
Activities Counted for Title IX Compliance (Sept. 17, 2008) (2008 Dear
Colleague Letter on Title IX and Athletic Activities), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20080917.pdf; see
also 1979 Policy Interpretation, 44 FR 71414 (noting that effectively
accommodating the interests and abilities of male and female students
in the selection of sports and levels of competition will, in most
cases, ``entail development of athletic programs that substantially
expand opportunities for women to participate and compete at all
levels'').
The proposed regulation is also informed by constitutional
principles. In particular, Federal courts' equal protection analysis
provides a helpful framework for evaluating when certain sex-based
classifications may be justified. See, e.g., 34 CFR 106.34(b) (setting
out Title IX regulatory standard for single-sex classes that reflects
certain aspects of Federal courts' equal protection framework); U.S.
Dep't of Educ., Office for Civil Rights, Final Rule: Nondiscrimination
on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 71 FR 62530, 62533 (Oct. 25, 2006)
https://www.govinfo.gov/content/pkg/FR-2006-10-25/pdf/E6-17858.pdf.
Notably, however, because the scope of Title IX differs from the scope
of the Equal Protection Clause, the Department's current and proposed
Title IX regulations, while informed by constitutional principles,
exclusively implement Title IX. See 71 FR 62533.
Court Decisions Regarding Sex-Related Eligibility Criteria
In developing the proposed regulation, the Department also reviewed
court decisions analyzing allegations that various policies governing
transgender students' eligibility to participate on male or female
athletic teams discriminate impermissibly based on sex. Several courts
have found that excluding transgender students from participating
[[Page 22868]]
on athletic teams consistent with their gender identity impermissibly
discriminates against these students based on sex. In one case, for
example, a Federal district court preliminarily enjoined a school
district from excluding a fifth-grade transgender girl from the girls'
softball team under an Indiana law that categorically precluded
transgender girls and women from being treated consistent with their
gender identity for purposes of female athletic teams. A.M. v.
Indianapolis Pub. Schs., No. 1:22-cv-01075-JMS-DLP, 2022 WL 2951430, at
*14 (S.D. Ind. July 26, 2022), vacated as moot, (S.D. Ind. Jan. 19,
2023).\8\ Adopting the Supreme Court's reasoning in Bostock and
following controlling Seventh Circuit authority, the court held that
the plaintiff had ``established a strong likelihood that she will
succeed on the merits of her Title IX claim'' that the Indiana law
discriminated against her on the basis of sex. Id. at * 11. As the
court explained, prohibiting an individual from playing on a team
consistent with their gender identity ```punishes that individual for
his or her gender non-conformance,' which violates the clear language
of Title IX.'' Id. (citations omitted). The court also stated that
under current case law, this conclusion was ``not even a close call.''
Id.
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\8\ On January 19, 2023, after the parties filed a Joint
Stipulation to Dismiss Case Because of Mootness indicating that the
plaintiff had enrolled in a charter school not operated by defendant
Indianapolis Public Schools, the Federal district court issued an
Acknowledgement of Dismissal and vacated the preliminary injunction
because of mootness. A.M., No. 1:22-cv-01075-JMS-DLP (S.D. Ind. Jan.
19, 2023). In its Acknowledgement of Dismissal, the court did not
repudiate its prior determination that the plaintiff had a strong
likelihood of success on the merits of her Title IX claim, as
discussed in this preamble.
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In another case, a Federal district court preliminarily enjoined
the State of Idaho from enforcing a state law that ``excludes
transgender women from participating on women's sports teams.'' Hecox
v. Little, 479 F. Supp. 3d 930, 943, 988 (D. Idaho 2020), appeal
argued, No. 20-35815 (9th Cir. Nov. 22, 2022). In Hecox, the court
found that, in light of ``the dearth of evidence in the record to show
excluding transgender women from women's sports supports sex equality,
provides opportunities for women, or increases access to college
scholarships,'' the transgender student plaintiff was likely to succeed
in establishing that the Idaho statute violates her right to equal
protection. Id. at 978-85. The court explained that the Idaho law,
which draws a distinction based on the quasi-suspect classifications of
sex and transgender status, must, under the Supreme Court's established
equal protection doctrine, ``serve important governmental objectives
and must be substantially related to achievement of those objectives.''
Id. at 973 (quoting Craig v. Boren, 429 U.S. 190, 197 (1976)). Although
the court recognized that ```redressing past discrimination against
women in athletics and promoting equality of athletic opportunity
between the sexes' is `a legitimate and important governmental
interest' justifying rules excluding males from participating on female
teams,'' it concluded that that interest does ``not appear to be
implicated by allowing transgender women to participate on women's
teams.'' Id. at 976 (quoting Clark ex rel. Clark v. Ariz.
Interscholastic Ass'n, 695 F.2d 1126, 1131 (9th Cir. 1982)). On this
point, the court noted both that the small population of transgender
athletes would not ``substantially displace'' cisgender female athletes
and that ``it is not clear that transgender women who suppress their
testosterone have significant physiological advantages over cisgender
women.'' Id. at 978. As the court explained, ``[t]hat the Act
essentially bars consideration of circulating testosterone illustrates
the Legislature appeared less concerned with ensuring equality in
athletics than it was with ensuring exclusion of transgender women
athletes.'' Id. at 984.
The court's equal protection analysis in Hecox is instructive and
relevant to the Department's proposed Title IX regulation in several
respects: the court examined interests commonly proffered to defend
policies denying transgender students the opportunity to participate on
male or female athletic teams consistent with their gender identity,
considered whether such policies actually advance any important
objectives, and further considered the effects of those policies on
students' equal opportunity to participate in and benefit from their
schools' education programs and activities. See, e.g., Hecox, 479 F.
Supp. 3d at 977 (``[T]he Act's categorical exclusion of transgender
women and girls entirely eliminates their opportunity to participate in
school sports. . . .'').
Conversely, another Federal district court upheld a West Virginia
law against a challenge brought by a transgender girl who, because of
the law, was excluded from participating on her middle school's girls
athletic teams, concluding that the law satisfied both equal protection
and Title IX. B.P.J., 2023 WL 111875, at * 8, * 10.\9\ The court agreed
with the plaintiff that the law classified students based on sex. It
then observed, in its equal protection analysis, that the State could
``allow transgender individuals to play on the team with which they, as
an individual, are most similarly situated at a given time,'' but
concluded that the categorical ban on participation by transgender
students consistent with their gender identity was substantially
related to the State's asserted interest in providing equal athletic
opportunity for girls and women. Id. at *8. With respect to Title IX,
the court observed that: (1) current Sec. 106.41(b) permits sex-
separate athletic teams; (2) `` `the motivation for the promulgation of
the regulation' was to increase opportunities for women and girls in
athletics''; and (3) Sec. 106.41(b)'s ``endorsement of sex separation
in sports refers to biological sex.'' Id. at *9 (citation omitted).
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\9\ As explained in Note 5 above, the district court initially
issued a preliminary injunction barring enforcement of a State law
that would ban the plaintiff from participating on girls' sports
teams at school based on the strong likelihood that the West
Virginia law violated the Equal Protection Clause and Title IX.
B.P.J., 550 F. Supp. 3d 347, 357. On January 5, 2023, the District
Court issued an order dissolving the preliminary injunction and
finding the West Virginia law did not violate the Equal Protection
Clause or Title IX. 2023 WL 111875, at *8, *10. The plaintiff
appealed and a panel of the Fourth Circuit enjoined the District
Court's January 5, 2023, Order pending the outcome of the appeal,
see B.P.J. v. W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Feb.
22, 2023), which the Defendants-Appellees have petitioned the U.S.
Supreme Court to vacate. See Application to Vacate the Injunction
Entered by the United States Court of Appeals for the Fourth
Circuit, W. Va. State Bd. of Educ. v. B.P.J., No. 22A800 (U.S. Mar.
9, 2023).
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With regard to the court's third observation, the Department notes
that current Sec. 106.41(b) permits a recipient to offer ``teams for
members of each sex,'' without defining that term, and also notes the
longstanding application of this provision to permit a recipient to
offer teams for women and men, and for girls and boys. The Department
recognizes that although the court in B.P.J. interpreted the Title IX
statute and Sec. 106.41(b) in a way that permits categorical exclusion
of transgender students from participating consistent with their gender
identity, other courts have set out a different interpretation of Title
IX and its implementing regulations governing sex-separation in
education programs and activities, see, e.g., Grimm v. Gloucester Cnty.
Sch. Bd., 972 F.3d 586, 618-19 (4th Cir.), as amended (Aug. 28, 2020),
cert. denied, 141 S. Ct. 2878 (2021); A.M., 2022 WL 2951430, at *7-11,
underscoring the value of this proposed rulemaking in clarifying the
Department's interpretation of its Title IX regulations.\10\
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\10\ A decision of the United States Court of Appeals for the
Eleventh Circuit likewise highlights the need for the Department to
clarify Title IX's application to transgender students in those
limited and discrete contexts in which Title IX or its implementing
regulations otherwise allow a recipient to separate students on the
basis of sex. See Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791
(11th Cir. 2022) (en banc). In Adams, the court determined a school
policy that excluded a transgender boy from using the male restroom
at his school did not violate the Equal Protection Clause, id. at
810-11, or Title IX, id. at 811-17. The Adams court recognized that
the school's restroom policy classified students based on sex. Id.
at 801. The court held, however, that the term ``sex'' in 34 CFR
106.33, which allows a recipient to ``provide separate toilet . . .
facilities on the basis of sex,'' should be understood to mean
``biological sex,'' see Adams, 57 F.4th at 814-15. It further
concluded that the regulation therefore permitted a recipient to
deny transgender students access to restrooms consistent with their
gender identity, without considering the distinct sex-based harms
that such students suffer from such exclusion. For the Department's
views on some of the issues raised in Adams, see En Banc Brief for
the United States as Amicus Curiae in Support of Plaintiff-Appellee
and Urging Affirmance at 22-28, Adams, 57 F.4th 791 (No. 18-13592),
https://www.justice.gov/crt/case-document/file/1458461/download.
See, e.g., id. at 22 (recognizing that the Department's Title IX
regulation allows for sex-separate restrooms, but noting that the
regulation does not speak to how it applies to transgender
students).
The claims in Adams did not involve athletics or the athletics
regulation that is the subject of this Athletics NPRM (34 CFR
106.41). The Department notes the court's statement in dicta, in
reference to the Department's current athletics regulation, that
``equating `sex' to `gender identity' or `transgender status' would
also call into question the validity of sex-separated sports
teams,'' Adams, 57 F.4th at 816-17, differs from the approach
proposed in this Athletics NPRM. As discussed above, the
Department's longstanding view is that sex-separate teams can in
some instances advance Title IX's goals, and that as a general
matter, a recipient may offer male and female athletic teams as long
as they provide overall equal athletic opportunity consistent with
Title IX's nondiscrimination guarantee. The proposed regulation
would not alter this position and instead, for reasons discussed
throughout this preamble, would provide the necessary clarity to
help ensure that recipients continue to provide equal opportunity
for students, consistent with Title IX, on their male and female
athletic teams.
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[[Page 22869]]
Courts have not addressed Title IX's application to intersex or
nonbinary student-athletes. The Department believes the proposed
regulation would provide an appropriate Title IX framework for
analyzing a recipient's adoption or application of sex-related criteria
that limit or deny an intersex student's eligibility to participate on
a male or female team consistent with their gender identity. When
applying sex-related criteria to nonbinary students, a recipient may
need to determine whether the criteria do, in fact, limit or deny a
nonbinary student's eligibility to participate on a male or female team
consistent with their gender identity to determine whether the proposed
regulation would apply.
Existing Approaches to Eligibility Criteria for Male and Female Teams
In addition to the considerations just discussed in developing this
proposed regulation, the Department considered a variety of existing
approaches to eligibility criteria for male and female teams that
affect students' opportunity to participate on such teams consistent
with their gender identity. Some States, as well as many school
districts and athletic associations, have for many years adopted or
applied eligibility criteria that do not restrict students from
participating on male or female athletic teams consistent with their
gender identity. Other States and organizations have, particularly in
recent years, adopted policies that exclude some or all transgender
students from participating on male or female athletic teams consistent
with their gender identity or have adopted eligibility criteria that
relate to birth certificates, physical examinations, or medical
treatment.
At the postsecondary level, for example, the National Collegiate
Athletic Association (NCAA) in 2022 replaced its longstanding policy
describing transgender students' eligibility to participate on a male
or female college athletic team in the NCAA with a sport-by-sport
approach. See NCAA, Transgender Student-Athlete Participation Policy
(Jan. 2022) (NCAA 2022 Policy); https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx; NCAA, 2010 NCAA Policy on
Transgender Student-Athlete Participation (2010), https://ncaaorg.s3.amazonaws.com/inclusion/lgbtq/INC_TransgenderStudentAthleteParticipationPolicy.pdf. The NCAA 2022
Policy calls for its member colleges and universities to follow the
criteria for transgender students' participation in college sports set
by national bodies governing individual sports, which are subject to
review by the NCAA's Committee on Competitive Safeguards and Medical
Aspects of Sports. In announcing these changes, the NCAA emphasized its
support for preserving transgender students' opportunity to participate
in team sports and the importance of inclusive, fair, safe, and
respectful environments for competition across college sports. See
NCAA, Board of Governors Updates Transgender Participation Policy (Jan.
19, 2022), https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy.aspx.
This change in the NCAA's policy follows a similar change by the
International Olympic Committee (IOC) regarding athletes' participation
in high-level international competition. IOC, IOC Framework on
Fairness, Inclusion, and Non-Discrimination on the Basis of Gender
Identity and Sex Variations (Nov. 2021) (IOC Framework), https://stillmed.olympics.com/media/Documents/News/2021/11/IOC-Framework-Fairness-Inclusion-Non-discrimination-2021.pdf; IOC, IOC Consensus
Meeting on Sex Reassignment and Hyperandrogenism (Nov. 2015), https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf. The IOC Framework recognizes ``the need to ensure that
everyone, irrespective of their gender identity or sex variations, can
practise sport in a safe, harassment-free environment that recognises
and respects their needs and identities'' and that its new ``principles
. . . aim to ensure that competition [in male and female] categories is
fair and safe and that athletes are not excluded solely on the basis of
their transgender identity or sex variations.'' IOC Framework at 1, 2.
The IOC Framework encourages bodies governing individual sports--
``particularly those in charge of organising elite-level
competition''--to develop eligibility criteria for sex-separate
competition that ``tak[e] into consideration the nature of each
sport,'' id. at 1, to work together to ``advance inclusion and prevent
discrimination based on gender identity and/or sex variations,'' id. at
2, and to ensure that any eligibility restrictions are ``evidence-
based'' and account for any unique competitive advantage or risk
associated with a specific sport, id. at 4. The IOC Framework also
provides that ``until evidence . . . determines otherwise, athletes
should not be deemed to have an unfair or disproportionate competitive
advantage due to their sex variations, physical appearance and/or
transgender status.'' Id. at 4.
In response to the shift by the NCAA and IOC to a sport-specific
approach, several sport governing bodies that set criteria for certain
non-school-based national and international competition, as well as
postsecondary athletic competition, have announced plans to review
their policies or have adopted or applied new policies regarding sex-
related eligibility criteria. Governing bodies in gymnastics, rowing,
and volleyball, for example, have announced policies that allow
athletes to participate consistent with their gender identity at lower
or non-elite levels of
[[Page 22870]]
competition, such as in competitions where athletes are not competing
for a place on a national team to represent the United States in
international competition, or where the rules of international sport
governing bodies would not apply. See, e.g., USA Gymnastics,
Transgender & Non-Binary Athlete Inclusion Policy at 2 (Apr. 2022),
https://usagym.org/PDFs/AboutUSAGymnastics/transgender_policy.pdf
(``Transgender and non-binary athletes in levels other than Elite are
permitted to compete without restriction in the gender category with
which they identify.''); USRowing, Gender Identity Policy (Feb. 13,
2023), https://usrowing.org/documents/2022/11/28/Gender_Identity_Policy_021323.pdf (``Athletes at the youth level
(youth, junior, high school, scholastic, [and certain other levels,
excluding collegiate and international competition]) shall be allowed
to participate in a rowing activity in accordance with their expressed
gender identity irrespective of the sex listed on the athlete's birth
certificate or student records, and regardless of whether the athlete
has undergone any medical treatment . . . .''); USA Volleyball, Gender
Competition Guidelines (2022-23 Season), https://usavolleyball.org/about/gender-guidelines (last visited Apr. 1, 2023) (``[n]o
restrictions'' for transgender girls ages 12 and under seeking to play
on girls' teams outside of international competition).
In the international, non-school-based context, some sport
governing bodies have adopted policies restricting participation in
high-level international women's competition to female athletes who
have not experienced male puberty, see, e.g., International Swimming
Federation (FINA), Policy on Eligibility for the Men's and Women's
Competition Categories (June 19, 2022) (FINA Policy on Eligibility),
https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf; or
restricting participation in international events and setting of
certain recognized world records to those who satisfy specific
testosterone suppression criteria for a set period of time, see, e.g.,
Union Cycliste Internationale, Eligibility Regulations for Transgender
Athletes (June 22, 2022) (UCI Eligibility Regulations), https://assets.ctfassets.net/761l7gh5x5an/Et9v6Fyux9fWPDpKRGpY9/96949e5f7bbc8e34d536731c504ac96f/Modification_Transgender_Regulation_22_Juin_2022_ENG.pdf. In addition,
at least one international governing body has announced plans to
revisit its existing criteria with the stated goal of creating
inclusive policies that allow for safe participation and fairness in
high-level international competition. See, e.g., World Lacrosse, World
Lacrosse Forms Partnership with National Center for Transgender
Equality to Create Trans-Inclusive Participation Policy (June 9, 2022),
https://worldlacrosse.sport/article/world-lacrosse-forms-partnership-with-national-center-for-transgender-equality.
At the secondary school level, State athletic associations have
discussed whether and how to adopt sex-related eligibility criteria
against the backdrop of State and Federal law, schools' experiences
with transgender students' participation in athletics, and the context
and purpose of interscholastic athletics. See, e.g., Luke Modrovsky,
Transgender Athletes--Participation, Equity and Competition (May 12,
2022), https://www.nfhs.org/articles/transgender-athletes-participation-equity-and-competition. A report on these discussions
includes an observation from a statewide athletic official that
although competition is an integral aspect of athletics, the
opportunity to participate in athletics at the elementary and secondary
levels also serves other educational purposes, including learning to
work as a team and building skills. See id. (quoting the executive
director of a State athletic association explaining that ``the purpose
of interscholastic activities is meant to be education-based and not
for the sole purpose of achieving scholarships, championship titles and
wider recognition in the sport'' and that ``[i]nterscholastic
activities remain an opportunity to develop a connection with teammates
and the school community, in addition to social, emotional, physical
and cognitive development'').
A number of State athletic associations that oversee
interscholastic athletics at the secondary school level, as well as
school districts, have adopted policies permitting transgender students
to participate on athletic teams consistent with their gender identity
with minimal or no restrictions. See, e.g., Wash. State Interscholastic
Activities Ass'n, Gender Diverse Youth Sport Inclusivity Toolkit at 8,
11 (2021), https://wiaa.com/ConDocs/Con1914/GenderDiverseToolkit.pdf
(``All students should have the opportunity to participate in WIAA
athletics and/or activities in a manner that is consistent with their
gender identity. . . . Athletes will participate in programs [offered
separately for boys and girls] consistent with their gender identity .
. . .''); R.I. Interscholastic League, Rules & Regulations at art. 3,
Sec. 3(B) (2022), https://www.riil.org/page/3033 (``The RIIL has
concluded that it would be fundamentally unjust and contrary to
applicable state and federal laws, to preclude a student from
participation on a gender specific sports team that is consistent with
the public gender identity of that student for all other purposes.'');
L.A. Unified Sch. Dist., Policy Bulletin: Gender Identity and
Students--Ensuring Equity and Nondiscrimination at section II.H.2 (May
17, 2019), https://achieve.lausd.net/cms/lib/CA01000043/Centricity/Domain/383/BUL-6224.2%20Transgender%20Policy%205%2013%2019.pdf
(``Participation in competitive athletics, intramural sports, athletic
teams, competitions and contact sports shall be facilitated in a manner
consistent with the student's gender identity. . . .''). Other State
athletic associations governing interscholastic sports at the middle
school and high school level have adopted sex-related criteria that may
restrict some students from participating on male or female teams
consistent with their gender identity. See, e.g., N.M. Activities
Ass'n, Eligibility Bylaws section 6.1 (July 1, 2022), https://www.nmact.org/file/Section_6.pdf (``Participating students are required
to compete in the gender listed on their original or amended birth
certificate.''); Wis. Interscholastic Athletic Ass'n, Transgender
Participation Policy (2018), https://www.wiaawi.org/Portals/0/PDF/Eligibility/WIAAtransgenderpolicy.pdf (requiring, among other things,
that transgender girls undergo one year of testosterone suppression
therapy to be eligible to participate on a female team).
The Department finds the work of these organizations on this issue
to be informative to the extent the organizations aim to balance
important interests, minimize harm to students whose opportunity to
participate on a male or female team consistent with their gender
identity would be limited or denied, and take account of the sport,
level of competition, and grade or education level of students.
Opportunity To Participate on Male and Female Teams Consistent With
Gender Identity
In light of the many positive benefits of participation in school
athletics discussed above, the Department's proposed regulation
reflects the understanding that students may be harmed significantly if
a school denies them the opportunity to participate in its athletic
program consistent with their gender identity. As discussed
[[Page 22871]]
elsewhere in this preamble, participation on a team that is
inconsistent with a student's gender identity is not a viable option
for many students. See, e.g., A.M., 2022 WL 2951430, at * 11
(describing a policy that prohibited students from participating on
teams consistent with their gender identity as ``punish[ing]'' those
students); Hecox, 479 F. Supp. 3d at 977 (``Participating in sports on
teams that contradict one's gender identity is equivalent to gender
identity conversion efforts, which every major medical association has
found to be dangerous and unethical.'' (internal quotation marks and
citation omitted)).
Federal and State courts also have identified additional, specific
harms to transgender students from being excluded from team
participation consistent with their gender identity, which the
Department recognizes are distinct from the harms to students who are
denied the opportunity to participate on a particular team based on sex
under the circumstances permitted in the Department's longstanding
athletics regulation. See, e.g., A.M., 2022 WL 2951430, at * 6, * 12
(noting that ``[p]laying softball helps to lessen the distressing
symptoms of gender dysphoria that A.M. suffers from and has allowed her
to experience life more fully as a girl'' and ``[s]oftball
participation has resulted in a better self-image and confidence for
A.M.'' whereas ``prohibiting A.M. from playing on the girls' softball
team will `out' her to her classmates'' and ``undermine her social
transition''); Hecox, 479 F. Supp. 3d at 987 (finding that a State law
preventing transgender women from participating on women's athletic
teams sponsored by public schools would harm the plaintiff, a
transgender woman, by denying her the opportunity to try out for and
compete on women's teams, subjecting her to the State's moral
disapproval of her identity, and subjecting her to the possibility of
embarrassment, harassment, and invasion of privacy through having to
verify her sex); Roe v. Utah High Sch. Activities Ass'n, No. 220903262,
2022 WL 3907182, at * 9-10 (Utah 3d Jud. Dist. Aug. 19, 2022)
(describing irreparable harm to mental and physical health that the
plaintiffs, three transgender girls, ``have suffered, and will continue
to suffer'' as a result of a Utah law banning transgender girls from
participating on girls' athletic teams and recognizing that ``the
stigma caused by the Ban has been immediate'').
Federal courts have also recognized that, because of these harms,
excluding transgender students from participating on male or female
athletic teams consistent with their gender identity can violate Title
IX's prohibition on sex discrimination. See, e.g., A.M., 2022 WL
2951430, at * 11 (finding strong likelihood of success on the merits of
the Title IX claim because prohibiting an individual from playing on a
team consistent with their gender identity ```punishes that individual
for his or her gender non-conformance,' which violates the clear
language of Title IX'' (citation omitted)); see also Hecox, 479 F.
Supp. 3d at 977, 987 (in a case involving an equal protection claim,
finding that a transgender college student faced ``irreparable harm''
from Idaho law categorically barring transgender girls and women from
participating on girls' or women's teams and that the law ``entirely
eliminates their opportunity to participate in school sports''). As
noted above, the court in B.P.J. reached a different conclusion about
the permissibility under Title IX of a ban on transgender students
participating in team sports consistent with their gender identity,
based on its view that the current regulation would permit such an
exclusion and that transgender girls could try out for the boys' teams.
2023 WL 111875, at * 9 (citing 34 CFR 106.41(b) and (c)).
Elements of the Proposed Regulation
The proposed regulation would require that 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. The proposed regulation would not affect a recipient's
discretion under current Sec. 106.41(b) to offer separate male and
female athletic teams when selection is based on competitive skill or
the activity involved is a contact sport. The following discussion
separately addresses key elements of the proposed regulation.
Eligibility Criteria Covered by the Proposed Regulation
The proposed regulation would govern a narrow category of athletic
eligibility criteria: only those 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. Many schools have adopted
criteria that govern students' eligibility to participate on athletic
teams that are unrelated to sex, such as attendance or academic
standing requirements (e.g., minimum grade-point average for all
student-athletes). Criteria such as these are outside the scope of the
proposed regulation.
By contrast, eligibility criteria would fall within the scope of
the proposed regulation if they are sex-related (e.g., they relate to
how a student's sex is determined for team-eligibility purposes,
including by imposing eligibility requirements related to a student's
sex characteristics) and they would limit or deny students' eligibility
to participate on a male or female team consistent with their gender
identity. These criteria could include, for example, a requirement
limiting or denying a student's eligibility for a male or female team
based on a sex marker on an identification document, such as a birth
certificate, passport, or driver's license. Criteria requiring physical
examinations or medical testing or treatment related to a student's sex
characteristics would also fall within the proposed regulation's scope
if the results of such examinations or testing or requiring such
treatment could be used to limit or deny a student's eligibility to
participate consistent with their gender identity. Such criteria, like
other sex-related eligibility criteria, would have to adhere to the
proposed regulation's requirements, including the requirement to
minimize harms.
The proposed regulation would not prohibit all uses of sex-related
criteria; rather, it would require that if such criteria limit or deny
a student's eligibility to participate on a male or female team
consistent with their gender identity, those criteria, for each sport,
level of competition, and grade or education level, would have to be
substantially related to the achievement of an important educational
objective and minimize harms to students whose opportunity to
participate on a male or female team consistent with their gender
identity would be limited or denied.
Additionally, the proposed regulation would apply only to those
sex-related criteria that would ``limit or deny'' students' eligibility
to participate consistent with their gender identity. Sex-related
criteria would ``limit'' eligibility if, for example, they do not allow
transgender students to participate fully on a male or female team
consistent with their gender identity (e.g., by permitting a student to
participate in some but not all competitions). Sex-related criteria
[[Page 22872]]
would ``deny'' students' eligibility to participate consistent with
gender identity if they foreclose students' opportunity to participate
on male or female teams consistent with their gender identity (e.g., by
requiring transgender students to participate consistent with their sex
assigned at birth or by prohibiting transgender girls who have
undergone endogenous puberty from participating on girls' teams).
Substantially Related to the Achievement of an Important Educational
Objective
The proposed regulation would require that sex-related criteria be
``substantially related to the achievement of an important educational
objective'' if those criteria would limit or deny students' eligibility
to participate on male or female athletic teams consistent with their
gender identity. Proposed Sec. 106.41(b)(2) does not specify the
objectives that a recipient may assert and instead would implement
Title IX's guarantee of equal opportunity in education by, in part,
specifying that the criteria must serve an important educational
objective.
The Department's proposed regulation is similar to the approach in
the Department's current Title IX regulation governing single-sex
classes, 34 CFR 106.34(b), which permits certain recipients to offer
single-sex classes when the single-sex nature of the class is ``based
on the recipient's important objective'' and ``substantially related to
achieving that objective.'' That regulation limits a recipient to one
of two specific important educational objectives.\11\ Although the
proposed athletics regulation would not limit the important educational
objectives a recipient may seek to achieve, ensuring fairness in
competition and prevention of sports-related injury are examples of
possible important educational objectives that recipients have asserted
and might assert in the future. As with the single-sex classes
regulation, this proposed regulation is informed by case law
interpreting the Equal Protection Clause, which requires public schools
to demonstrate that any sex-based classification they seek to impose is
substantially related to the achievement of an important governmental
objective. See Virginia, 518 U.S. at 532-33; Hecox, 479 F. Supp. 3d at
973; see also 71 FR 62533.
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\11\ Specifically, Sec. 106.34(b)(1)(i) provides that a
recipient must choose one of these two important educational
objectives: ``(A) To improve educational achievement of its
students, through a recipient's overall established policy to
provide diverse educational opportunities, provided that the single-
sex nature of the class or extracurricular activity is substantially
related to achieving that objective; or (B) To meet the particular,
identified educational needs of its students, provided that the
single-sex nature of the class or extracurricular activity is
substantially related to achieving that objective.''
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The Department notes that a recipient could not satisfy the
proposed regulation's requirement that criteria be substantially
related to achieving an important educational objective if its
objective is communicating or codifying disapproval of a student or a
student's gender identity. See, e.g., Hecox, 479 F. Supp. 3d. at 987
(describing Idaho's restriction as impermissibly communicating the
State's moral disapproval of the transgender plaintiff's identity); cf.
Romer v. Evans, 517 U.S. 620, 634-35 (1996) (`` `[I]f the
constitutional conception of ``equal protection of the laws'' means
anything, it must at the very least mean that a bare . . . desire to
harm a politically unpopular group cannot constitute a legitimate
governmental interest.' '' (alterations and emphasis in original)
(quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973))). Nor may
a recipient adopt sex-related criteria solely for the purpose of
excluding transgender students from sports, Hecox, 479 F. Supp. 3d at
984-85 (noting the State of Idaho failed to identify a legitimate
interest served by the State law that State and athletic association
rules did not already address, ``other than an invalid interest of
excluding transgender women and girls from women's sports entirely,
regardless of their physiological characteristics''), or to require
adherence to sex stereotypes, Virginia, 518 U.S. at 533 (affirming that
States ``must not rely on overbroad generalizations about the different
talents, capacities, or preferences of males and females''), or solely
for the purpose of administrative convenience. See Wengler v. Druggists
Mut. Ins. Co., 446 U.S. 142, 151-52 (1980) (rejecting justification for
providing death benefit to women only based on assertion that ``it is
more efficient to presume [women's] dependency [on men . . . ] than to
engage in case-to-case determination''); Frontiero v. Richardson, 411
U.S. 677, 689-90 (1973).
An asserted purpose also would not satisfy the proposed regulation
if, rather than being a genuine educational objective of the recipient,
it is a pretext for an impermissible interest in singling out
transgender students for disapproval or harm. See, e.g., Hecox, 479 F.
Supp. 3d at 984 (noting Idaho ``[l]egislature appeared less concerned
with ensuring equality in athletics than it was with ensuring exclusion
of transgender athletes''); cf. Virginia, 518 U.S. at 533 (explaining
that a State's justification for sex-related differential treatment
``must be genuine, not hypothesized or invented post hoc in response to
litigation'').
Separately, interests in fairness in competition and in preventing
sports-related injury to students have been advanced by some
stakeholders and discussed by Federal courts in evaluating sex-related
eligibility criteria for limiting or denying students' participation on
male or female teams consistent with their gender identity. Thus, the
Department anticipates that a recipient might assert fairness in
competition or prevention of sports-related injury as an important
educational objective in its athletic programs, particularly for older
students in competitive athletic programs.
The Department recognizes that competition is an integral part of
many team sports, particularly at the high school and collegiate level,
and that schools have an interest in ensuring competition is fair,
including that competitors meet the relevant criteria for competition
in their league, such as age and skill level, following applicable
rules, and otherwise engaging in fair play. See, e.g., 2008 Dear
Colleague Letter on Title IX and Athletic Activities (considering
competition, among other factors, when determining whether an activity
is a sport that can be counted as part of a recipient's athletic
program for the purpose of evaluating Title IX compliance and noting
that competitive interscholastic and intercollegiate athletic
opportunities are generally ``governed by a specific set of rules of
play . . . which include objective, standardized criteria by which
competition must be judged''). Likewise, the Department recognizes that
schools have an interest in the prevention of sports-related injury. As
some stakeholders expressed, ensuring fair competition and prevention
of sports-related injury does not necessarily require schools to adopt
or apply 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. As discussed above, many schools do not impose
such restrictions, and some sport governing bodies impose such
restrictions only for older students in highly competitive settings.
See, e.g., USRowing, Gender Identity Policy at 1; FINA Policy on
Eligibility.
Some stakeholders expressed their views that fairness in
competition depends on having generally applicable competition rules
and cannot be
[[Page 22873]]
determined based on whether a particular student wins or loses, and
that schools and athletic associations use various strategies to
address injury-related concerns, recognizing that student-athletes vary
widely in size and strength on any given team. Strategies noted by
stakeholders included appropriate coaching and training, requiring use
of protective equipment, and specifying rules of play, all of which can
protect against sports-related injury without imposing sex-related
eligibility criteria that would limit or deny student participation
consistent with their gender identity. Some of these stakeholders thus
asserted that the goals of fair competition and prevention of sports-
related injury could be achieved while allowing all students the
opportunity to participate on athletic teams consistent with their
gender identity, particularly at pre-collegiate and college club and
intramural levels.
On the other hand, other stakeholders noted that they would view
eligibility rules that permit participation by transgender students as
unfair or unsafe and asserted that some female students might choose
not to participate on female teams under such rules. Many of these
stakeholders focused their comments on participation by transgender
girls and women who have undergone endogenous puberty, resulting in
potentially unfair advantages in size, weight, and strength differences
and potentially posing a risk of injury to others. Other stakeholders
countered, as noted above, that there are significant differences in
size, weight, and strength among girls and women who are not
transgender. Some of these stakeholders also indicated that mitigating
measures would be sufficient to address any risk of unfair advantage in
competition or risk of sports-related injury on female teams.
Courts have found fairness in competition to be an important
educational objective in the context of determining whether schools
could provide sex-separate athletic teams. For example, in Clark ex
rel. Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1131 (9th
Cir. 1982), the Ninth Circuit recognized the importance of ``providing
equal opportunities for women'' athletes and agreed with the Arizona
Interscholastic Association that male students would displace female
students in volleyball ``to a substantial extent'' if not excluded from
competition. And, in Hecox, the court and all parties recognized
Idaho's important governmental interest in promoting sex equality by
providing female athletes from elementary school through college a fair
opportunity ``to demonstrate their skill, strength, and athletic
abilities'' in school-sponsored athletic competition. 479 F. Supp. 3d
at 978.
The Department recognizes fairness in competition and prevention of
sports-related injury can be important educational objectives. This
recognition is consistent with stakeholder feedback, case law, and
current Sec. 106.41(b), which permits teams to be separated by sex
where selection for such teams is based upon competitive skill or the
activity involved is a contact sport. Although many schools presently
work to ensure fairness in competition and prevention of sports-related
injury while allowing all students to participate on male or female
teams consistent with their gender identity, the proposed regulation
would permit a recipient to take a different approach as long as the
criteria used to determine who can participate on a particular male or
female athletic team are substantially related to achieving that
important educational objective and comply with the proposed
regulation's other requirements.
Substantial Relationship Requirement
Under the Department's proposed regulation, 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 would need to
be, for each sport, level of competition, and grade or education level,
``substantially related'' to achieving an important educational
objective.
As discussed above, the substantial relationship requirement, like
the achievement of an important educational objective, is similar to
the standard in the Department's Title IX regulation governing access
to single-sex classes, 34 CFR 106.34, and informed by case law
interpreting the Equal Protection Clause. See Virginia, 518 U.S. at
532-33; Hecox, 479 F. Supp.3d at 978. Under the proposed regulation,
consistent with courts' equal protection analysis, sex-related criteria
would be substantially related to achievement of an important
educational objective if there is a ``direct, substantial relationship
between'' a recipient's objective and the means used to achieve that
objective, see Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982), and if the criteria do not rely on overly broad generalizations
about the talents, capacities, or preferences of male and female
students, see, e.g., Virginia, 518 U.S. at 533; Hecox, 479 F. Supp. 3d
at 982 (``[I]t appears the `absolute advantage' between transgender and
cisgender women athletes [claimed by defendants] is based on overbroad
generalizations without factual justification.'').
Under proposed Sec. 106.41(b)(2), for example, a recipient would
be permitted, consistent with Title IX's requirement to provide overall
equal athletic opportunity for students regardless of sex, to rely on
fairness in competition as an important educational objective to
justify its use of sex-related criteria that would limit or deny
students' eligibility to participate consistent with their gender
identity--but only if those criteria are substantially related to
ensuring fairness in competition in that particular sport at the
applicable level of competition and grade or education level. Cf.
Clark, 695 F.2d at 1127 (upholding policy excluding boys from girls'
high school volleyball teams to preserve participation opportunities
for girls). As courts have noted, for example, it would not be
reasonable to assume that all transgender girls and women are similarly
situated in their physical abilities to cisgender boys and men. See,
e.g., Hecox, 479 F. Supp. 3d. at 978. Therefore, criteria that assume
all transgender girls and women possess an unfair physical advantage
over cisgender girls and women in every sport, level of competition,
and grade or education level would rest on a generalization that would
not comply with the Department's proposed regulation. The court in
Hecox made a similar point when it rejected the premise of an Idaho law
that, in every circumstance, ``transgender women and girls have `an
absolute advantage' over non-transgender girls'' because evidence in
the record ``undermine[s] this conclusion.'' 479 F. Supp. 3d at 980-81.
The court found that although ``[t]he Equal Protection Clause does not
require courts to disregard the physiological differences between men
and women,'' the specific principles that support ``sex separation in
sport'' generally ``do not appear to hold true for women and girls who
are transgender.'' Id. at 976-77 (discussing Clark, 695 F.2d at 1129,
1131). Criteria that categorically exclude all transgender girls and
women from participating on any female athletic teams, for example,
would not satisfy the proposed regulation because, in taking a one-
size-fits-all approach, they rely on overbroad generalizations that do
not account for the nature of particular sports, the level of
competition at issue, and the grade or education level of students to
which they apply.
A State trial court in Utah observed that ``the evidence
suggest[ed] that being transgender is not `a legitimate accurate proxy'
for athletic performance.'' Utah
[[Page 22874]]
High Sch. Activities Ass'n, 2022 WL 3907182, at *8 (citations omitted).
That court explained that ``[m]any transgender girls--including two of
the plaintiffs in this case--medically transition at the onset of
puberty, thereby never gaining any potential advantages that the
increased production of testosterone during male puberty may create.''
Id. The court also noted that other transgender girls ``may simply have
no discernible advantage in any case, depending on the student's age,
level of ability, and the sport in which they wish to participate.''
Id. In short, although fairness in competition may be an important
educational objective, the recipient's sex-related eligibility criteria
must be substantially related to the actual achievement of that
objective. That substantial relationship could not be established by
reliance on overbroad generalizations based on sex.
Similarly, although some stakeholders expressed a concern that
allowing any transgender girls and women to participate in sports
consistent with their gender identity could displace cisgender girls
and women from participating in sports, other stakeholders observed
that very few female student-athletes are transgender and, as just
discussed, transgender students do not necessarily have greater
physical or athletic ability than cisgender students that would affect
cisgender students' equal opportunity to participate in a recipient's
athletic program. Some courts have also observed that the very small
number of transgender girls and women who are student-athletes must be
considered when evaluating claims that those athletes pose an outsized
risk to participation by and opportunities for cisgender girls and
women who are student-athletes. See, e.g., Utah High Sch. Activities
Ass'n, 2022 WL 3907182, at *8 (finding ``no support for a claim `that
allowing transgender women to compete on women's teams would
substantially displace female athletes' '' (quoting Hecox, 479 F. Supp.
3d at 977-78)).
The substantial relationship requirement thus would mean that if a
recipient adopts or applies sex-related criteria that would limit or
deny students' eligibility to participate on a male or female team
consistent with their gender identity, the justification for those
criteria must be based on ``reasoned analysis rather than through the
mechanical application of traditional, often inaccurate, assumptions.''
Miss. Univ. for Women, 458 U.S. at 726; see also, e.g., Clark, 695 F.2d
at 1129 (explaining that sex-based criteria would not be substantially
related to promoting fairness in competition if based on overbroad
generalizations ``without factual justification'' (citing Schlesinger
v. Ballard, 419 U.S. 498, 508 (1975), and Miss. Univ. for Women, 458
U.S. 718)).
If a school can achieve its objective using means that would not
limit or deny a student's participation consistent with their gender
identity, its use of sex-related criteria may be pretextual rather than
substantially related to achievement of that important educational
objective. Thus, under proposed Sec. 106.41(b)(2), whether the
objective could be accomplished through alternative criteria that would
not limit or deny a student's eligibility to participate on a male or
female team consistent with their gender identity would be relevant to
the analysis.
Federal courts have taken a similar approach in evaluating
challenges to sex-based classifications under the Equal Protection
Clause by considering whether government entities could achieve the
same goal using other means. For example, the Supreme Court noted that
it was uncontested that the Virginia Military Institute could achieve
its goal of maintaining its adversative training program with some
adjustments short of denying admission to all female applicants.
Virginia, 518 U.S. at 550 n.19; see also, e.g., Sessions v. Morales-
Santana, 582 U.S. 47, 63 n.13 (2017) (``[O]ur decisions reject measures
that classify unnecessarily and overbroadly by gender when more
accurate and impartial lines can be drawn.''); Orr v. Orr, 440 U.S.
268, 283 (1979) (rejecting the use of gender-based classifications
where an important governmental interest is ``as well served by a
gender-neutral classification'' because a gender-based classification
``carries with it the baggage of sexual stereotypes''); Caban v.
Mohammed, 441 U.S. 380, 393 & n.13 (1970) (rejecting sex-based
distinction while noting that the State could achieve its interests
``through numerous other mechanisms more closely attuned to those
interests'').
The Department notes that to satisfy the substantial relationship
requirement, a recipient would not be permitted to rely on false
assumptions about transgender students. For example, criteria that
exclude transgender students from participation on a male or female
team based on a false assumption that transgender students are more
likely to engage in inappropriate conduct than other students would not
satisfy the proposed regulation because the criteria would not be
substantially related to achieving an important educational objective.
See, e.g., Parents for Privacy v. Barr, 949 F.3d 1210, 1228-29 (9th
Cir. 2020) (rejecting Title IX claim because ``[t]he use of facilities
for their intended purpose, without more, does not constitute an act of
harassment simply because a person is transgender''); Doe v. Boyertown
Sch. Dist., 897 F.3d 518, 534 (3d Cir. 2018) (rejecting claim that a
transgender student's presence in sex-separate facilities violated
cisgender students' Title IX rights and distinguishing cases involving
voyeurism and sexual harassment as not analogous). Moreover, nothing in
Title IX precludes a school from taking nondiscriminatory steps to
prevent misconduct and protect privacy for all students.
Grade or Education Level
The Department's proposed regulation would require that sex-related
eligibility criteria that would limit or deny a student's eligibility
to participate on a male or female team consistent with their gender
identity must, for each grade or education level, be substantially
related to the achievement of an important educational objective. This
requirement would recognize that students of varying grades or
education levels are not necessarily similarly situated with respect to
the purposes of team participation, the harms resulting from exclusion
from participation, their athletic skills development, other
developmental factors, or their legal status as a minor or adult. Thus,
any sex-related eligibility criteria must account for those factors
that affect students in the particular grade or education level to
which the criteria would apply.
Although competition is an aspect of many team sports across grades
and education levels, athletic teams offered by schools for students in
earlier grades, including those in elementary and middle school, also
present an important opportunity to introduce students to new
activities for which little or no prior experience is required, acquire
basic skills associated with a particular sport, and develop
introductory skills related to physical fitness, leadership, and
teamwork. See Kelsey Logan & Steven Cuff, Am. Acad. Pediatrics Council
on Sports Med. & Fitness, Organized Sports for Children,
Preadolescents, and Adolescents, Pediatrics (June 2019), https://publications.aap.org/pediatrics/article/143/6/e20190997/37135/Organized-Sports-for-Children-Preadolescents-and (associating
participation in organized sports in childhood with long-term
participation in organized sports, development of life skills, and a
high level of physical fitness later in life).
[[Page 22875]]
Reinforcing this point, the Department's review of the publicly
available athletic association policies for all 50 States and the
District of Columbia and Puerto Rico indicates that the overwhelming
majority of State athletic associations do not regulate athletic
competition between elementary school teams.
Similarly, the Department's review found that only about half of
State athletic associations regulate athletic activities in middle
school, and many of those that regulate make clear the mission of
athletics in those grades is to encourage broad participation, basic
skills development, and other aspects of student well-being. See, e.g.,
Wis. Interscholastic Athletic Ass'n, Middle Level Handbook (2022-23) at
2, https://www.wiaawi.org/Portals/0/PDF/Publications/jrhandbook.pdf
(``The developmental characteristics of young adolescents should
provide the foundation for the middle level athletic programs and
philosophy. . . . Programs should promote behaviors that include
cooperation, sportsmanship and personal improvement. Winning is not the
primary goal of the program. . . . The program should be open to all
young adolescents and provide a positive experience. All young
adolescents should have the opportunity to participate, play and
experience skill improvement.''); Iowa High Sch. Athletic Ass'n, Junior
High Sports Manual (2021-23) at 1, https://www.iahsaa.org/wp-content/uploads/2022/08/2021-23-Junior-High-Manual-8.17.22.pdf (``The primary
purpose of the junior high school athletic program is participation,
with emphasis on the development of skills, sportsmanship, and
citizenship of all students.''); S.C. High Sch. League, 2022-23 Middle
School Rules & Regulations at 1, https://schsl.org/archives/7950 (``The
program must be justified on a basis of contribution to the desirable
development of the participants. The welfare of the youth concerned is
of greatest importance. All other needs and problems should be
secondary.'').
One State athletic association explained, for example, that member
schools' goals for offering interscholastic athletic competition and
activities for middle school students should encourage broad
participation for students in middle school in recognition of the
``great range of individual differences among boys and girls of this
age (age; body build; interest; ability; experience; health, and the
stages of physiological, emotional and social maturity).'' S.C. High
Sch. League, 2022-23 Middle School Rules & Regulations at 1, https://schsl.org/archives/7950. To that end, it directs schools to approach
competition ``from as broad a base as possible to offer experience to
many boys and girls.'' Id.
The Department recognizes that recipients that offer male and
female teams to students in early grades have a significant interest in
providing all of their students an opportunity to gain foundational
physical, emotional, academic, and interpersonal benefits, and other
life skills associated with team sports participation regardless of
sex. See Kelsey Logan & Steven Cuff, Am. Acad. Pediatrics Council on
Sports Med. & Fitness, Organized Sports for Children, Preadolescents,
and Adolescents, Pediatrics (June 2019) (describing the many benefits
of youth participation, including children, preadolescents, and
adolescents, in organized sports); Anne C. Fletcher et al., Structured
Leisure Activities in Middle Childhood: Links to Well-Being, J.
Community Psychology 31-6, 641-59 (2003) (associating greater
psychosocial development with participation in sport activities in
elementary school). Barring students from participating on teams
consistent with their gender identity may impede them from developing
an interest in or aptitude for team sports or for athletic activity
altogether, including into adulthood, resulting in negative health and
well-being consequences and long-term loss of opportunity. See, e.g.,
Sandra D. Simpkins et al., Participating in Sport and Music Activities
in Adolescence: The Role of Activity Participation and Motivational
Beliefs During Elementary School, 39 J. Youth Adolescence 1368 (2009),
https://link.springer.com/article/10.1007/s10964-009-9448-2 (concluding
that elementary school children who did not participate in sports were
unlikely to participate when they become adolescents); cf. A.M., 2022
WL 2951430, at *11 (describing distress and other harms associated with
prohibiting students from playing on a team consistent with their
gender identity).
Accordingly, the Department currently believes that there would be
few, if any, sex-related eligibility criteria applicable to students in
elementary school that could comply with the proposed regulation, and
that it would be particularly difficult for a recipient to comply with
the proposed regulation by excluding students immediately following
elementary school from participating on male or female teams consistent
with their gender identity. The Department welcomes comments on whether
any sex-related eligibility criteria can comply with this proposed
regulation when applied to students in these earlier grades and, if so,
the types of criteria that may comply with the proposed regulation. The
Department anticipates that at the high school and college level,
schools' application or adoption of sex-related eligibility criteria to
ensure an important educational objective, such as fairness in
competition in their athletic programs, may be more likely to satisfy
the proposed regulation.
Level of Competition
The proposed regulation would specify that any sex-related criteria
that would limit or deny a student's eligibility to participate on a
male or female team must be substantially related to achieving an
important educational objective for each level of competition to which
it applies.
This aspect of the proposed regulation would recognize that school-
based athletic team offerings vary widely across the United States. To
the extent teams are offered for students at earlier grades and levels
of education, many schools prioritize broad participation and teaching
basic skills. These teams are often not highly selective, including
``no-cut'' teams that allow all students to join the team and
participate, and rarely provide elite competition opportunities, as
discussed above in Existing Approaches to Eligibility Criteria for Male
and Female Teams. Some schools also offer teams at lower levels of
competition that are designed to encourage broad participation and help
students build basic skills (e.g., intramural, junior varsity, unified)
that often permit all or most interested students to participate
without an expectation of high-level competition (e.g., varsity). Other
teams, more typically for older students who have advanced skills,
including at many postsecondary institutions, are more selective and
engage in elite competition. See generally NCAA, Overview, https://www.ncaa.org/sports/2021/2/16/overview.aspx (last visited Mar. 29,
2023) (describing levels of intercollegiate competition for member
colleges and universities).
Some stakeholders urged the Department to develop regulations
governing the participation of students on male or female teams
consistent with their gender identity in a manner that accounts for
different levels of competition. In a view expressed by some
stakeholders, a one-size-fits-all policy approach would not be
appropriate because athletic participation is organized differently at
various levels of competition with some male and female teams open to
all students and some that accommodate a larger roster of students with
widely varying skill levels. Some stakeholders
[[Page 22876]]
also noted that at high levels of competition in high school, students
may be competing with each other for limited scholarship and
recruitment opportunities. Some stakeholders urged that it is
appropriate for sex-related criteria that govern the participation of
athletes consistent with gender identity to account for differences at
these levels of competition.
The Department is also aware of distinctions that national and
international sport governing bodies draw among athletes at different
levels of competition. In some cases, the criteria that these
organizations require transgender athletes to meet to participate on a
male or female team consistent with their gender identity differ based
on the level of competition. As noted above, for example, USA
Gymnastics permits transgender athletes to participate ``without
restriction'' in all competition activities below the elite level. USA
Gymnastics, Transgender & Non-Binary Athlete Inclusion Policy at 2.
Similarly, World Athletics, the international governing body for track
and field events, has adopted regulations that apply only at the World
Rankings competition level or to athletes who wish to have their
performance at a lower competition level recognized as a World Record.
World Athletics permits member federations to set their own regulations
to determine eligibility to participate in lower level competitions
consistent with an athlete's gender identity. See World Athletics, Rule
C3.5A--Eligibility Regulations for Transgender Athletes (Mar. 2023)
(Rules 2.1 and 2.5), https://www.worldathletics.org/about-iaaf/documents/book-of-rules.
In light of these examples, the Department proposes a standard that
would specifically require a recipient that adopts or applies sex-
related eligibility criteria for male and female teams to account for
the level of competition at issue. As noted above, the Department
expects sex-related eligibility criteria to be more common and more
likely to satisfy the proposed regulation at higher grade levels,
particularly high school and postsecondary levels.
Sport
The proposed regulation would specify that any sex-related criteria
for eligibility to participate on a male or female team must be
substantially related to achievement of an important educational
objective for each sport to which it applies. This requirement is
consistent with the Javits Amendment's direction that the Title IX
regulations include reasonable athletics provisions that ``consider[ ]
the nature of particular sports.'' Education Amendments of 1974 section
844.
The Department proposes this requirement because not all
differences among students confer a competitive advantage or raise
concerns about sports-related injury in every sport, and
``[c]lassification on strict grounds of sex, without reference to
actual skill differentials in particular sports, would merely echo
`archaic and overbroad generalizations.' '' Att'y Gen. v. Mass.
Interscholastic Athletic Ass'n, 393 NE2d 284, 293 (Mass. 1979)
(citations omitted) (rejecting the athletic association's argument that
it was justified in imposing a complete ban on male athletes
participating on female athletic teams because of an assertion of the
male athletes' competitive advantage in all sports); see also, e.g.,
Utah High Sch. Activities Ass'n, 2022 WL 3907182, at *8-9 (finding that
challenged Utah law had a substantial likelihood of violating the State
constitution because it ``prevents all transgender girls from competing
on all girls' teams, regardless of any potentially relevant factors,
such as . . . the nature of the particular sport'' (emphasis in
original)).
School districts and postsecondary institutions offer a wide
selection of sports (e.g., badminton, baseball, basketball, bowling,
curling, football, golf, gymnastics, riflery, skiing, soccer, softball,
swimming and diving, tennis, trap shooting, volleyball, water polo).
See Nat'l Fed'n of State High Sch. Ass'ns, High School Athletics
Participation Survey (2021-22), https://www.nfhs.org/media/5989280/2021-22_participation_survey.pdf. These and other sports that schools
offer each have unique rules and prioritize varied skills and
attributes. Likewise, students on any given team will typically vary
significantly in skills, size, strength, and other attributes that may
be relevant to their chosen sport or position within a sport. Thus,
under the proposed regulation, any sex-related eligibility criteria for
male or female teams that would limit or deny participation consistent
with gender identity would need to be substantially related to
achieving an important educational interest in relation to the
particular sport to which the criteria apply. Overbroad generalizations
that do not account for the nature of particular sports would not be
sufficient to comply with the proposed regulation.
The proposed regulation also would address issues raised in
feedback the Department received from stakeholders who suggested that
any regulations the Department might adopt should account for
variations among sports. Stakeholders noted that outside the
educational setting, national and international sport governing bodies
set rules for participation and competition that differ by sport. As
discussed above, the NCAA and the IOC have directed the entities that
set rules for participation and competition in intercollegiate and
international sporting events recognized by the NCAA and the IOC
respectively to adopt a sport-specific approach for any sex-related
eligibility criteria to participate on male or female teams consistent
with gender identity. As the IOC explained, sport governing bodies must
ensure that any sex-related eligibility criteria included in their
policies ``tak[e] into consideration the nature of each sport,'' IOC
Framework at 1, and account for any sport-specific competitive
advantage or risk, id. at 4. The Department notes, however, that the
proposed regulation would not necessarily require schools to adopt
distinct eligibility criteria for each sport; rather, where sex-related
criteria would limit or deny students' eligibility to participate
consistent with their gender identity, the criteria must satisfy the
proposed regulation as applied to that sport.
The proposed regulation would therefore provide that, in light of
the variation among sports, a recipient that adopts or applies sex-
related eligibility criteria for male or female teams must demonstrate
that its criteria are substantially related to achievement of an
important educational objective for the particular sport to which they
apply.
Harm Minimization Requirement
Proposed 106.41(b)(2) would also require that, if a recipient
adopts or applies sex-related criteria that would limit or deny
students' eligibility to participate on a male or female team
consistent with their gender identity, it must do so in a way that
minimizes harms to students whose opportunity to participate on a male
or female team consistent with their gender identity would be limited
or denied.
As explained earlier in this preamble, Title IX generally prohibits
a recipient from excluding students from an education program or
activity on the basis of sex when the exclusion causes more than de
minimis harm. When students are separated or treated differently based
on sex, a recipient risks harming those students in a way that would
ordinarily violate Title IX. See 34 CFR 106.31(b)(4) and (7) (providing
that, ``[e]xcept as provided in this subpart, in providing any aid,
benefit, or service to a student, a recipient shall not, on the basis
of sex
[[Page 22877]]
. . . [s]ubject any person to separate or different rules of behavior,
sanctions, or other treatment . . . [or] [o]therwise limit any person
in the enjoyment of any right, privilege, advantage, or opportunity'');
see also, e.g., Grimm, 972 F.3d at 617 (recognizing that school's
imposition of different rules on transgender students than other
students in their use of school facilities was ``sufficient to
constitute harm under Title IX''). But see Adams, 57 F.4th at 814-15
(holding school district policy that excludes transgender students from
restrooms that correspond to their gender identity does not violate
Title IX regulations because of the language of 34 CFR 106.33). The
July 2022 NPRM proposed amendments to the Department's Title IX
regulations that would clarify that a recipient must not separate or
treat students differently in a manner that discriminates on the basis
of sex by subjecting a person to more than de minimis harm unless
otherwise permitted by Title IX or the Department's Title IX
regulations. 87 FR 41534-37. Those proposed amendments would further
clarify that a policy or practice that prevents a person from
participating in an education program or activity consistent with their
gender identity subjects a person to more than de minimis harm on the
basis of sex. Id.
Consistent with the Javits Amendment, the Department's Title IX
regulations have taken a different approach in the athletics context,
permitting a recipient to offer male and female athletic teams to
promote equal opportunity for all athletes, even though some harm may
be caused when a recipient offers sex-separate athletic teams. In
particular, current Sec. 106.41(b), in place since 1975, permits a
recipient to offer male and female athletic teams under certain
circumstances, and such teams may in those circumstances exclude some
students on the basis of sex. This longstanding requirement reflects
the Department's recognition that a recipient's provision of male and
female teams can advance rather than undermine overall equal
opportunity in the unique context of athletics by creating meaningful
participation opportunities that were historically lacking for women
and girls. See 1979 Policy Interpretation, 44 FR 71421 (``If women
athletes, as a class, are receiving opportunities and benefits equal to
those of male athletes, individuals within the class should be
protected thereby.'').
The Department also recognizes that overall equal opportunity does
not require identical programs for male and female athletes, id. at
71421-22, and thus a recipient may, and has always been permitted to,
deny students the opportunity to participate on a particular male or
female team based on sex under certain circumstances. For example, a
recipient may, in some circumstances, offer a volleyball team for girls
but not boys, and a boy who would like to play on the school's
volleyball team may not be able to do so for reasons discussed above.
But the permissibility of sex-separate teams does not exempt a
recipient from its responsibility not to otherwise discriminate based
on sex when offering opportunities to participate on those teams.
A school policy of separating students on the basis of particular
reproductive or other sex-based characteristics, see, e.g., B.P.J.,
2023 WL 111875, at *2 (evaluating West Virginia's classification of
students based on ``reproductive biology and genetics at birth''), will
not materially harm the vast majority of students, as those sex-related
criteria permit them to participate on athletic teams consistent with
their gender identity. But when sex-related criteriaLGB do limit or
deny a student's eligibility to participate on a male or female
athletic team consistent with their gender identity, the student is
subjected to harms based on sex that are distinct from the harms
otherwise permitted under the Department's longstanding athletics
regulation (e.g., a girl who is not selected for the girls' soccer team
based on her athletic skills or a boy who is not eligible to play on
the girls' volleyball team when the recipient does not offer a boys' or
coeducational volleyball team). Criteria that limit or deny students'
eligibility to participate in sports consistent with their gender
identity can force individual students to disclose that they are
transgender, which can be ``extremely traumatic'' and ``undermine [a
student's] social transition,'' A.M., 2022 WL 2951430, at *11-12;
subject them to ``embarrassment, harassment, and invasion of privacy
through having to verify [their] sex,'' Hecox, 479 F. Supp. 3d at 987;
and can communicate disapproval of transgender students, ``which the
Constitution prohibits'' in the context of public schools, Hecox, 479
F. Supp. 3d at 987 (citing Lawrence v. Texas, 539 U.S. 558, 582-83
(2003)). Further, such sex-related exclusion leaves affected students
with no viable opportunity to participate in athletics if the only
other option is to participate on a team that does not align with their
gender identity. Hecox, 479 F. Supp. 3d at 977 (citing evidence that,
for transgender students, participating on a team that is inconsistent
with their gender identity is equivalent to medically harmful gender
identity conversion efforts).
The current regulations, however, do not expressly address these
distinct harms caused by sex-related criteria that limit or deny
students' eligibility to participate on male or female teams consistent
with their gender identity. Proposed Sec. 106.41(b)(2) would account
for such harms by requiring that such criteria be adopted and applied
in a way that minimizes the harms caused to those students. As a
result, even sex-related criteria that are substantially related to the
achievement of an important educational objective would violate
proposed Sec. 106.41(b)(2) if the recipient can reasonably adopt or
apply alternative criteria that would be a less harmful means of
achieving the recipient's important educational objective. For example,
a recipient might adopt sex-related criteria that require documentation
of student-athletes' gender identity based on its interest in
providing, consistent with Title IX, equal athletic opportunity on male
and female teams under Sec. 106.41(c). Under proposed Sec.
106.41(b)(2), the recipient would need to design those criteria to
minimize the potential harms imposed on affected students (e.g.,
difficulty of obtaining documentation, risk of invasion of privacy or
disclosure of confidential information). If the recipient can
reasonably adopt or apply alternative criteria that cause less harm and
still achieve its important educational objective, the recipient would
not be permitted to adopt the more harmful criteria.
In sum, the proposed regulation would preclude a recipient from
implementing sex-based classifications more broadly than is necessary
to implement the statute's underlying goals, consistent with Title IX's
guarantee that ``[n]o person in the United States'' shall be subject to
prohibited discrimination on the basis of sex. 20 U.S.C. 1681(a)
(emphasis added). Proposed Sec. 106.41(b)(2) would thus provide
recipients greater clarity on how to comply with Title IX's
nondiscrimination obligation if recipients adopt or apply sex-related
criteria that would limit or deny a student's eligibility to
participate on male or female athletic teams consistent with their
gender identity.
Directed Questions
The Department continues to consider how its Title IX regulations
should clarify the permissibility of sex-related criteria that would
limit or deny a student's eligibility to participate on a
[[Page 22878]]
male or female athletic team consistent with their gender identity. The
Department therefore specifically invites further public comment on:
a. Whether any alternative approaches to the Department's proposed
regulation would better align with Title IX's requirement for a
recipient to provide equal athletic opportunity regardless of sex in
the recipient's athletic program as a whole;
b. What educational objectives are sufficiently important to
justify a recipient imposing 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 and whether those
objectives should be specified in the regulatory text;
c. Whether and how the permissibility of particular sex-related
eligibility criteria should differ depending on the sport, level of
competition, grade or education level, or other considerations;
d. Whether any sex-related eligibility criteria can meet the
standard set out in the proposed regulation when applied to students in
earlier grades, and, if so, the type of criteria that may meet the
proposed standard for those grades;
e. How a recipient can minimize harms to students whose eligibility
to participate on a male or female athletic team consistent with their
gender identity is limited or denied by the recipient's adoption or
application of sex-related criteria; and
f. Whether regulatory text in addition to the text in the proposed
regulation is needed to provide recipients with sufficient clarity on
how to comply with Title IX's prohibition on sex discrimination,
including gender identity discrimination, in the context of male and
female athletic teams, consistent with the principles and concerns
identified in the discussion of proposed Sec. 106.41(b)(2).
Regulatory Impact Analysis (RIA)
Under Executive Order 12866,\12\ the Office of Management and
Budget (OMB) must determine whether this regulatory action is
``significant'' and, therefore, subject to the requirements of the
Executive order and subject to review by OMB. Section 3(f) of Executive
Order 12866 defines a ``significant regulatory action'' as an action
likely to result in a rule that may--
---------------------------------------------------------------------------
\12\ Executive Order on Regulatory Planning and Review, Exec.
Order No. 12866, 58 FR 51735 (Oct. 4, 1993).
---------------------------------------------------------------------------
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This proposed action is ``significant'' and, therefore, subject to
review by OMB under section 3(f)(4) of Executive Order 12866. The
Department has assessed the potential costs and benefits, both
quantitative and qualitative, of this proposed regulatory action and
has determined that the benefits would justify the costs.
The Department has also reviewed this proposed regulation under
Executive Order 13563,\13\ which supplements and explicitly reaffirms
the principles, structures, and definitions governing regulatory review
established in Executive Order 12866. To the extent permitted by law,
Executive Order 13563 requires that an agency--
---------------------------------------------------------------------------
\13\ Executive Order on Improving Regulation and Regulatory
Review, Exec. Order No. 13563, 76 FR 3821 (Jan. 18, 2011), https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
---------------------------------------------------------------------------
(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
Pursuant to Executive Order 13563, the Department believes that the
benefits of this proposed regulation justify its costs. In choosing
among alternative regulatory approaches, the Department selected the
approach that maximizes net benefits. Based on the analysis that
follows, the Department believes that the proposed regulation is
consistent with the principles in Executive Order 13563.
The Department also has preliminarily determined that this
regulatory action would not unduly interfere with State, local, or
Tribal governments in the exercise of their governmental functions.
This RIA discusses the need for regulatory action, the potential
costs and benefits, assumptions, limitations, and data sources, as well
as regulatory alternatives considered.
1. Need for Regulatory Action
In 2021, the President directed the Department in both Executive
Order 13988 \14\ and Executive Order 14021 \15\ to review its current
regulations implementing Title IX for consistency with Title IX's
statutory prohibition on sex discrimination by a recipient of Federal
financial assistance in its education program or activity. Consistent
with those Executive orders, the Department reviewed the current
regulations based on Federal case law, its experience in enforcement,
and feedback received by OCR from stakeholders, including during the
June 2021 Title IX Public Hearing and listening sessions. Over 280
students, parents, teachers, faculty members, school staff,
administrators, and other members of the public provided live comments
during the June 2021 Title IX Public Hearing, and OCR also received
over 30,000 written comments in connection with the hearing. In
[[Page 22879]]
addition, OCR conducted listening sessions with stakeholders expressing
a variety of views, including individuals and organizations focused on
Title IX and athletics. Among these stakeholders were athletic
associations; student-athletes; parents; organizations representing
elementary schools, secondary schools, and postsecondary institutions
(or institutions of higher education (IHEs)); organizations
representing teachers, administrators, parents, and current and former
student-athletes; attorneys representing students and schools; State
officials; Title IX Coordinators and other school administrators; and
individuals who provide Title IX training to schools.
---------------------------------------------------------------------------
\14\ Executive Order on Preventing and Combating Discrimination
on the Basis of Gender Identity or Sexual Orientation, Exec. Order
No. 13988, 86 FR 7023 (Jan. 25, 2021).
\15\ Executive Order on Guaranteeing an Educational Environment
Free from Discrimination on the Basis of Sex, Including Sexual
Orientation and Gender Identity, Exec. Order No. 14021, 86 FR 13803
(Mar. 11, 2021).
---------------------------------------------------------------------------
Based on this review, the Department proposes amending its
regulations to set out a standard 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. The Department
received feedback from many stakeholders during the June 2021 Title IX
Public Hearing and listening sessions and through correspondence asking
the Department to clarify Title IX's application to students'
eligibility to participate on male or female athletic teams and urging
adoption of a variety of positions.
The Department proposes amending its Title IX regulations to
address stakeholder concerns and anticipates that the proposed
regulation would result in many benefits to recipients, students,
employees, and others, including by providing clarity to help ensure
compliance with Title IX's nondiscrimination requirement by recipients
that seek to adopt or apply sex-related criteria to determine student
eligibility to participate on male or female teams consistent with
their gender identity.
2. Discussion of Costs, Benefits, and Transfers
The Department has analyzed the costs and benefits of complying
with the proposed regulation. Although many of the associated costs and
benefits are not readily quantifiable, the Department believes that the
benefits derived from the proposed regulation would outweigh the
associated costs. The Department acknowledges the interest of some
stakeholders in preserving certain recipients' current athletic-team
policies and procedures regarding sex-related eligibility criteria and
in avoiding potential additional costs to comply with the proposed
regulation. However, the Department believes the current regulations
are not sufficiently clear to ensure Title IX's nondiscrimination
requirement is fulfilled if a recipient adopts or applies sex-related
criteria that would limit or deny students' eligibility to participate
on male or female athletic teams consistent with their gender identity.
The Department expects that a primary benefit of the proposed
regulation would be to provide greater clarity to recipients and other
stakeholders about the standard that a recipient must meet under Title
IX if it 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 and, as a result,
to protect students' equal opportunity to participate on male and
female teams consistent with Title IX.
Title IX applies to approximately 18,000 local education agencies
(LEAs) and over 6,000 IHEs. Due to the number of affected entities, the
variation in likely responses, and the limited information available
about current practices, the Department is not able to precisely
estimate the likely costs, benefits, and other effects of the proposed
regulation. The Department specifically invites public comment on data
sources that would provide additional information on the issues that
are the subject of this Athletics NPRM, information regarding the
number of recipients operating male or female teams in intramural or
club sports, and time estimates for the activities described in the
Developing the Model (Section 2.B.2) discussion of the RIA,
disaggregated by type of recipient. Despite these limitations and based
on the best available evidence as discussed below, the Department
estimates that this proposed regulation would result in a net cost to
recipients of between $23.4 million to $24.4 million over 10 years.
The assumptions, data, methodology, and other relevant materials,
as applicable, on which the Department relied in developing its
estimates are described throughout this RIA.
2.A. Benefits of the Proposed Regulation
The Department believes that the proposed regulation would provide
numerous important benefits but also recognizes that it is not able to
quantify these benefits at this time. Despite the lack of quantitative
data available, however, it is the Department's current view that the
benefits are substantial and far outweigh the estimated costs of the
proposed regulation.
In particular, the Department's current view is that the proposed
regulation would benefit educational institutions and their students
and applicants for admission by providing greater clarity about the
standard a recipient must meet if it 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. The Department expects that the clarity provided by
the proposed regulation would reduce the likelihood of sex
discrimination in students' opportunities to participate on male or
female teams offered by a recipient. By reducing the sex discrimination
resulting from confusion surrounding the permissibility of sex-related
eligibility criteria, it is the Department's view that the proposed
regulation would produce a demonstrable benefit for educational
institutions and their students. The Department anticipates these
benefits would be realized by helping protect students' equal
opportunity to participate on male and female teams consistent with
Title IX, along with the associated health and other benefits to
students who are able to participate as a result of the proposed
regulation's clarity on Title IX's requirements. The Department further
anticipates that the proposed regulation would benefit recipients by
helping recipients understand their obligations, thereby supporting
their efforts to provide equal athletic opportunity regardless of sex
in their athletic programs, as Title IX requires.
Youth participation in athletics is associated with many physical,
emotional, academic, and interpersonal benefits for students, including
increased cognitive performance and creativity, improved educational
and occupational skills, higher academic performance and likelihood of
graduation from a 4-year college, improved mental health, and improved
cardiovascular and muscle fitness, as well as reduced risk of cancer
and diabetes, and has the potential to help students develop traits
that benefit them in school and throughout life, including teamwork,
discipline, resilience, leadership, confidence, social skills, and
physical fitness. See President's Council on Sports, Fitness &
Nutrition Sci. Bd., Benefits of Youth Sports (Sept. 17, 2020), https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf.
There is also evidence suggesting that allowing transgender
children to socially transition (i.e., present themselves in everyday
life consistent with their gender identity) is associated with positive
mental health outcomes for those children. Kristina Olson et al.,
Mental Health of Transgender Children Who Are Supported in Their
Identities,
[[Page 22880]]
137 Pediatrics 3 (March 2016), https://publications.aap.org/pediatrics/article/137/3/e20153223/81409/Mental-Health-of-Transgender-Children-Who-Are. Ensuring that transgender students have the opportunity to
participate on male or female teams consistent with their gender
identity can be part of a transgender student's social transition and
is thus a crucial benefit to those students' health and well-being.
In addition, though the data quantifying the economic impacts of
sex discrimination are limited, the Department recognizes that sex
discrimination causes harm to students, including when such
discrimination results in students being limited in or excluded from
the opportunity to participate in athletics consistent with their
gender identity and thereby effectively deprived of the many positive
benefits of participation in team sports. See, e.g., Hecox, 479 F.
Supp. 3d at 987 (finding State law caused harm in that it would deny a
transgender woman the opportunity to participate on women's team and
subject her to the State's moral disapproval of her identity); Utah
High Sch. Activities Ass'n, 2022 WL 3907182, at *9 (finding immediate
harm caused by State law banning transgender girls from participating
in sports consistent with their gender identity).
2.B. Costs of the Proposed Regulation
The analysis below reviews the Department's data sources, describes
the model used for estimating the likely costs associated with the
proposed regulation, and sets out those estimated costs. The costs
described below are not intended to reflect the exact burden on any
given recipient, but instead intended to reflect an average burden
across all recipients. Specific entities may experience higher or lower
costs than those estimated below as a result of this proposed
regulation. Due to limited quantitative data, the Department emphasizes
that the monetary estimates reflect only the likely costs of this
proposed regulatory action and do not seek to quantify, in monetary
terms, the costs of sex discrimination. There are limited data
quantifying the economic impacts of sex discrimination in athletics,
and the Department invites comment on suggestions for any data sources
that would provide additional information.
2.B.1. Establishing a Baseline
As an initial matter, the analysis that follows separately
discusses the effects of the proposed regulation on elementary and
secondary education (ESE) entities and postsecondary education or IHE
entities. For purposes of this analysis, ESE and IHE entities include
educational institutions as well as other entities, such as national
athletic associations and sport governing bodies, that are involved in
the adoption or application of sex-related eligibility criteria for
students participating on a recipient's male or female athletic teams.
The Department analyzes the costs associated with the proposed
regulation separately for ESE and IHE entities and views this as the
best approach for cost analysis because ESE and IHE entities are
organized and operate differently, and the costs the proposed
regulation would impose on recipients are distinct at these levels, as
explained below.
Athletic competition and its governance vary between the ESE and
IHE contexts, with most ESE interscholastic competition governed by
State-specific athletic associations, while much intercollegiate
competition in the United States occurs under the auspices of only a
handful of athletic associations, the largest of which is the NCAA.
Under the proposed regulation, a recipient would be permitted to adopt
or apply sex-related eligibility criteria that would limit or deny a
student's eligibility to participate on a male or female athletic team
consistent with their gender identity if those criteria, for each
sport, level of competition, and grade or education level (i) are
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. The Department anticipates that
the costs associated with implementing the proposed regulation--such as
reviewing, adopting, and implementing policies, and training staff--
would best align according to whether an entity is an ESE or IHE
entity.
With respect to ESE entities, the Department anticipates that the
same entities (e.g., LEAs, State education associations, and State
athletic associations) would generally review and respond to the
regulation for elementary school, middle school, and high school, and,
in doing so, would likely address the full range of affected students
in any subsequent review or revision of policies. For this reason, the
Department projects costs for ESE entities in one category, even though
an entity may opt to adopt or apply different eligibility criteria for
sex-separate teams in high school, for example, than for students in
elementary school and middle school. To separate these entities into
different categories for the purpose of projecting costs would unduly
confound estimates. For example, there are not separate burdens
associated with the time and effort an LEA athletic director may spend
reading and understanding the regulation's application to all students
in the LEA. Instead, the athletic director would likely read and
understand the regulation in its entirety. That LEA athletic director
would then develop policies and practices that comply with the
regulation, possibly differentiating sex-related eligibility criteria
for male and female teams for different sports, levels of competition,
and grades or education levels, while ensuring that the criteria
minimize harms to students. Similarly, the Department anticipates that
a State athletic association with membership comprised of LEAs that
serve students in grades pre-K through 12 would review the regulation
as a whole and set policies for its member entities' participation in
interscholastic competition that align with the regulatory
requirements.
In light of these factors, the Department believes it is reasonable
to project costs by dividing the cost analyses between ESE and IHE
entities. The Department notes that, in light of how athletic
competition is structured at both the ESE and IHE levels, some entities
that would not otherwise be subject to the proposed regulation may
nonetheless be affected by its promulgation as a result of actions by
third parties. As noted above, most athletic competition is organized
by State athletic associations at the ESE level or under the auspices
of the NCAA or similar national athletic associations at the IHE level.
It is possible that a State athletic association or relevant governing
body would require all of its members, including a private high school,
to comply with eligibility and participation criteria that the
association sets. The Department thus acknowledges that the
implementation of the proposed regulation by these athletic
associations may indirectly affect entities that are not directly
subject to the proposed regulation. The Department does not currently
have sufficient data to estimate the likelihood of these effects or
their impact and seeks specific public comment on these issues.
Athletic Competition in ESE Entities
In the 2020-2021 school year, according to data from the National
Center on Education Statistics, there were 18,259 LEAs in the United
States with either a nonzero enrollment or at
[[Page 22881]]
least one operational school.\16\ Of the 18,083 LEAs for which the
Department has data on the relevant variables,\17\ 4,383 do not serve
students in grades 9 through 12. Many of these are single school LEAs,
such as charter schools. The Department assumes that these LEAs will
continue to serve only students in elementary or middle school moving
forward. Of the remaining LEAs, 1,268 only serve students in grades 9
through 12. Most LEAs (11,661) serve students in pre-kindergarten or
kindergarten through 12th grade.
---------------------------------------------------------------------------
\16\ In the 2020-2021 school year, 91 ESE entities had nonzero
enrollments and zero operational schools. For purposes of this
analysis, the Department assumes these entities operate like other
LEAs, although several appear to be regional education services
agencies or intermediate school districts where the named entity
itself, while enrolling students, may not directly provide education
to students. In that same year, 531 ESE entities had operational
schools either with zero enrollment or no enrollment data available.
A number of these entities are charter schools that may have been in
the process of opening or closing, and it is unclear whether they
will serve students in future years. Inclusion of these two groups
of entities will likely result in an over-estimate of the potential
costs of the proposed regulation.
\17\ This total excludes one LEA providing only adult education
services and 68 LEAs serving only ungraded students.
---------------------------------------------------------------------------
The Department generally assumes that, to the extent LEAs offer
separate male and female intramural athletic teams, they generally
establish eligibility criteria for participation on those teams at the
LEA level even if the policies differ by sport, level of competition,
or grade or education level.
For interscholastic athletic competition, eligibility is generally
governed by State-specific athletic associations. The Department
reviewed existing, publicly available State athletic associations'
policies on sex-related eligibility criteria for students'
participation on male or female teams for each of the 50 States, Puerto
Rico, and the District of Columbia.\18\ This review was conducted for
the purpose of informing this Athletics NPRM; the Department has not
evaluated these policies to determine whether they would comply with
the proposed regulation or current statutory or regulatory Title IX
requirements. The Department observed that State athletic association
policies range from those that allow all students to participate on
male or female athletic teams consistent with their gender identity to
those that categorically exclude transgender students from
participating on male or female athletic teams consistent with their
gender identity. The Department further observed additional variation
among State athletic association policies that establish some criteria
for determining when a student is eligible to participate on a specific
male or female athletic team consistent with their gender identity. For
example:
---------------------------------------------------------------------------
\18\ The Department notes that State athletic association
policies on this topic continue to be updated.
---------------------------------------------------------------------------
Approximately 20 percent of State athletic association
policies currently allow students to participate on male or female
athletic teams consistent with their gender identity without
establishing additional criteria or eligibility requirements beyond
those that apply to all student-athletes, such as attendance or
academic achievement.
Approximately 25 percent of State athletic associations
generally permit participation consistent with students' gender
identity and have established some criteria or eligibility requirements
for participation, such as various types of documentation (examples
include a written statement from the student, their parent or guardian,
health care or treatment provider, a community member or teacher
identifying the student's consistent gender identity).
Approximately 20 percent of State athletic associations
require students who wish to participate consistent with their gender
identity to meet additional criteria prior to participation. Of those
athletic associations that impose additional requirements, the vast
majority (approximately three-quarters of this group) adopted different
policies for male and female teams--many of which require transgender
girls to satisfy additional criteria prior to participating on a female
team consistent with their gender identity.
The remaining State athletic associations have adopted a
range of policies imposing criteria that severely limit most or all
transgender students from participating on male or female athletic
teams consistent with their gender identity.
In addition to variations among State athletic associations
regarding the criteria for participation on male or female athletic
teams, the Department observed variations among State athletic
associations regarding the eligibility decision process for
participation on male or female athletic teams. In nearly half of
States, athletic association policies leave decisions regarding
eligibility to the school or to the school and the student-athlete. In
approximately 30 percent of States, the athletic association is
involved in determining eligibility, either alone or in conjunction
with the school.
In general, the Department found that State athletic association
policies are silent on the issue of students in elementary school. With
respect to middle school, the Department found that about half of State
athletic associations regulate athletic competition at that level, but
only approximately 35 percent of State athletic associations have
policies addressing those students' participation in athletic
competition consistent with their gender identity. The remaining State
athletic associations are either silent on this issue or explicitly
defer to the school or LEA for policies affecting students in middle
school.
The Department notes that most States do not have laws prescribing
sex-related eligibility criteria for recipients' male and female
athletic teams. The Department also notes that at least two States have
enacted laws or regulations requiring LEAs to allow ESE students to
participate in athletics consistent with their gender identity. Twenty
States have enacted laws that, to varying degrees, explicitly require
that student-athletes participate on male or female athletic teams
consistent with their sex assigned at birth. The Department anticipates
athletic associations in some States may adopt policies that align with
State law before the Department promulgates its final regulation. The
Department further notes that some State laws are currently subject to
litigation that may affect their continued applicability. See, e.g.,
B.P.J., No. 23-1078 (4th Cir. Feb. 22, 2023) (staying the district
court's dissolution of preliminary injunction barring enforcement
against plaintiff of West Virginia law requiring students to
participate on athletic teams consistent with ``biological sex''
pending appeal); Hecox, 479 F. Supp. 3d at 978-85 (granting preliminary
injunction barring implementation of Idaho law that excludes
transgender girls and women from participating in athletics consistent
with their gender identity based on strong likelihood the law violates
the Equal Protection Clause); Barrett v. State, Cause No. DV-21-581B
(Mont. 18th Jud. Dist. Sept. 14, 2022) (finding Montana law that
restricts participation of transgender students in public institutions'
athletic programs violates State constitution by infringing on public
university's ``authority to oversee student groups and activities''),
appeal docketed, No. DA 22-0586 (Mont. Oct. 13, 2022); Utah High Sch.
Activities Ass'n, 2022 WL 3907182, at *1, *9 (granting preliminary
injunction to enjoin enforcement of Utah law that ``effectively bans
transgender girls from competing in pre-college school-related girls
sports,'' based on strong likelihood the law violates the State
constitution).
In the absence of the clarity that the proposed regulation would
provide, the Department assumes that States, LEAs,
[[Page 22882]]
schools, and State athletic associations would continue to implement
varying policies for students in elementary and secondary education,
with a small subset adopting criteria that would not limit or deny the
participation of transgender students on male or female athletic teams
consistent with their gender identity and a small subset adopting
criteria that would substantially limit or deny transgender students
from participating on male or female athletic teams consistent with
their gender identity. The Department also assumes that almost all of
the remaining States (approximately half) would have policies that
establish minimal criteria for the participation of transgender
students in high school athletics consistent with their gender identity
(e.g., a written statement from the student or someone on their behalf
confirming the student's consistent gender identity). The Department
seeks specific public comment on the reasonableness of this assumption.
Athletic Competition in IHE Entities
In the 2020-2021 school year, according to data from the National
Center on Education Statistics, there were 6,045 IHEs participating in
programs under Title IV of the Higher Education Act of 1965, 20 U.S.C.
1001 et seq. (1965), such as Loans, Federal Work Study, and Pell
grants. Except as described above, the Department assumes this
represents the universe of potentially impacted IHE entities. Of those,
1,689 IHEs offered an educational program that was less than 2 years in
duration (i.e., below the associate's level), 1,602 offered a program
of at least 2 but less than 4 years, and 2,754 offered a program of 4
or more years. In total, these institutions enrolled approximately 14.8
million full-time equivalent (FTE) students in fall 2020. Approximately
1 percent of students attended less-than-2-year IHEs, approximately 20
percent attended 2- to 4-year institutions, and approximately 79
percent attended at least 4-year institutions (hereinafter referred to
as ``4-year institutions'').
Table 1--Institutions of Higher Education by Level of Institutions and Enrollment, Fall 2020
----------------------------------------------------------------------------------------------------------------
% of total
Level of institution Number of Total fall FTE fall FTE Average fall
entities enrollment enrollment FTE enrollment
----------------------------------------------------------------------------------------------------------------
Less-than-2-Year................................ 1,689 228,448 1 138
2- to 4-Year.................................... 1,602 2,905,048 20 1,843
4 or more Years................................. 2,754 11,617,659 79 4,317
---------------------------------------------------------------
Total....................................... 6,045 14,751,155 100 2,490
----------------------------------------------------------------------------------------------------------------
In general, the Department assumes that less-than-2-year
institutions, which include many trade and technical programs (e.g.,
cosmetology, HVAC repair, dental assistant) do not engage in
interscholastic athletic competition or operate intramural athletic
programs. The Department seeks specific public comment on the extent to
which less-than-2-year IHEs would be impacted by the proposed
regulation.
The Department generally assumes that approximately 50 percent of
2- to 4-year IHEs operate intramural teams, some or all of which are
male or female teams, and that the IHEs establish policies governing
those programs.
For intercollegiate athletic competition, eligibility is generally
governed by national athletic associations, as described above. For
purposes of this analysis, the Department assumes that each athletic
association independently adopts and applies criteria to determine the
eligibility of students to participate on male or female teams
consistent with their gender identity. The Department annually collects
data on whether IHEs are members of such associations. Of the 3,989
IHEs for which the Department has data,\19\ 1,986 were members of a
national athletic association in the 2020-2021 school year. Of those
IHEs, 1,526 were 4-year institutions and 460 were 2- to 4-year
institutions.
---------------------------------------------------------------------------
\19\ Data are not available for 312 2- to 4-year institutions
and 55 4-year institutions.
Table 2--Selected Characteristics by National Athletic Association Membership and Level of Institution, Fall
2020
----------------------------------------------------------------------------------------------------------------
Member of National Athletic Not a member of National
Association Athletic Association
Level of institution ---------------------------------------------------------------
Average Average
Number enrollment Number enrollment
----------------------------------------------------------------------------------------------------------------
2- to 4-Year IHE................................ 460 3,223 830 1,641
4-Year IHE...................................... 1,526 6,440 1,173 1,542
---------------------------------------------------------------
Total....................................... 1,986 5,695 2,003 1,583
----------------------------------------------------------------------------------------------------------------
[[Page 22883]]
Table 3--Percentage of IHEs That are Members of National Athletic Associations by Level and Control of
Institution, Fall 2020
----------------------------------------------------------------------------------------------------------------
2- to 4-Year 4-Year IHEs
IHEs (%) (%) All levels (%)
----------------------------------------------------------------------------------------------------------------
Public.......................................................... 55 77 65
Private Non-Profit.............................................. 7 57 54
Private For Profit.............................................. 0 7 3
All Sectors..................................................... 36 43 50
----------------------------------------------------------------------------------------------------------------
As part of its annual data collection, the Department gathers
information on membership in five specific national athletic
associations (referred to below as the ``five named athletic
associations''). IHEs reported membership in the five named athletic
associations for the 2020-2021 school year as follows:
The National Collegiate Athletic Association (NCAA)--1,108
IHEs;
The National Association of Intercollegiate Athletics
(NAIA)--250 IHEs;
The National Junior College Athletic Administration
(NJCAA)--498 IHEs;
The National Small College Athletic Association (NSCAA)--
43 IHEs; and
The National Christian College Athletic Association
(NCCAA)--89 IHEs.
Also as part of its data collection, the Department permits IHEs to
report membership in national athletic associations other than the five
named athletic associations. For the 2020-2021 school year, 138 IHEs
reported that they were members of an athletic association other than
the five named athletic associations. The Department does not have data
on the specific athletic associations to which these IHEs belong. For
purposes of this analysis, the Department assumes two additional
national athletic associations, beyond the five named athletic
associations, would be required to review policies pursuant to the
proposed regulation if it were to be promulgated. The Department seeks
specific public comment on this estimate.
As explained in the discussion of the proposed regulation, in
January 2022, the NCAA replaced its longtime rules for transgender
student-athlete participation and adopted a sport-by-sport approach
that defers to the eligibility criteria set by national governing
bodies--e.g., USA Swimming, USA Gymnastics--subject to review by the
NCAA's Committee on Competitive Safeguards and Medical Aspects of
Sports. Some of these national groups look to international
organizations such as FINA and International Gymnastics Federation
(FIG), which set criteria for participation in international
competitions involving elite athletes. See, e.g., USA Swimming, Athlete
Inclusion, Competitive Equity, and Eligibility Policy at 4-5 (Mar. 10,
2023), https://www.usaswimming.org/docs/default-source/governance/governance-lsc-website/rules_policies/usa-swimming-policy-19.pdf
(noting that athletes who wish to compete in a World Aquatics
Competition must meet the eligibility criteria in the World Aquatics
Policy, which ``are potentially more difficult to satisfy than'' the
USA Swimming policy); USA Gymnastics, Transgender & Non-Binary Athlete
Inclusion Policy at 3 (Apr. 2022), https://www.usagym.org/PDFs/About%20USA%20Gymnastics/transgender_policy.pdf (noting that elite
athletes who are transgender must satisfy requirements for
participation set by the FIG and IOC). Taking these elite international
competition criteria into account, some national governing bodies have
developed eligibility criteria that differ based on levels of
competition, with certain criteria applying only to athletes who seek
to compete internationally or in nationally recognized record-setting
events. In addition, eligibility criteria vary by sport. Some
international governing bodies permit transgender women to compete at
elite levels if they satisfy specific testosterone suppression
criteria. See, e.g., Union Cycliste Internationale, UCI Eligibility
Regulations. Others exclude from elite competition transgender women
who have experienced any aspect of male puberty. See, e.g., FINA Policy
on Eligibility. Some sport governing bodies have not yet updated their
policies or their criteria for determining transgender students'
participation remain under review. For example, World Lacrosse
announced it is reviewing and revising its eligibility criteria for
everyone involved in the sport, including transgender athletes, to
create a policy that ensures that ``everyone has a right to safely
participate in sport while maintaining fair competition.'' World
Lacrosse, World Lacrosse Forms Partnership with National Center for
Transgender Equality to Create Trans-Inclusive Participation Policy
(June 9, 2022), https://worldlacrosse.sport/article/world-lacrosse-forms-partnership-with-national-center-for-transgender-equality/. The
Department generally assumes that national and international governing
bodies will continue to revise their policies in the coming years and
that most or all will seek to develop policies that, in their view,
maximize athletes' participation consistent with gender identity while
ensuring fair and safe competition.
2.B.2. Developing the Model
Athletic Competition in ESE Entities
In general, the Department assumes that only LEAs that offer male
and female athletic teams would be directly affected by the proposed
regulation. As part of the 2017-2018 Civil Rights Data Collection,
schools in approximately 60 percent of LEAs submitting responses
indicated that they operated one or more male or female athletic teams.
For purposes of this analysis, the Department assumes approximately 60
percent of all LEAs offer sex-separate athletic teams, for an estimated
10,849 affected LEAs.
As noted above, although recipient LEAs would be subject to the
proposed regulation, they generally do not independently establish
requirements for participation in interscholastic competition. Instead,
LEAs typically participate as members in State athletic associations,
which generally establish these requirements. Regardless, the
Department notes that recipient LEAs must comply with Title IX and the
obligation to do so is not alleviated by any contrary athletic
association rule. See 34 CFR 106.6(c). Because of this obligation, the
Department believes that many LEAs, as members of State athletic
associations, would communicate with their State's athletic association
about the Department's proposed regulation. As a result, the Department
believes it is reasonable to assume that State athletic associations
would review and
[[Page 22884]]
consider revising their policies on this issue.
Also as noted above, the Department has not evaluated existing
State athletic association policies governing interscholastic athletics
to determine whether they would comply with the proposed regulation.
However, the Department assumes that a range of policies would comply
with the proposed regulation. On the other hand, a State athletic
association policy with restrictive sex-related eligibility criteria
that complies with the proposed regulation in the context of a
particular sport (e.g., a sport with significant physical contact) may
not comply in the context of a different sport (e.g., one with little
or no physical contact) if, for example, a recipient cannot demonstrate
how its sex-related criteria are substantially related to achievement
of an important educational objective in the context of that particular
sport and minimize harms to students whose opportunity to participate
on a male or female team consistent with their gender identity would be
limited or denied by the criteria. As a result, the Department
anticipates that all LEAs and all athletic associations will undertake
at least some level of review of their existing policies or the
policies of associations to which they belong. The Department does not
assume the adoption, elimination, or modification of any specific
policy.
The Department believes that the proposed regulation would render
State athletic associations that currently prevent transgender students
from participating on male or female teams consistent with their gender
identity more likely than others to conduct intensive reviews of their
existing policies. The Department anticipates this result because
athletic association policies that would limit or deny students'
eligibility to participate on male or female teams consistent with
their gender identity would be more likely to raise questions from
member LEAs, student-athletes, and families regarding compliance with
Title IX. The Department assumes many of these State athletic
associations, or their member LEAs, would engage in some revision to
ensure their policies comply with the regulation. By contrast, the
Department generally assumes that the 20 percent of State athletic
associations that currently allow students to participate on male or
female athletic teams consistent with their gender identity would be
less likely to engage in intensive review of their policies and
implement revisions than other States. For purposes of this analysis,
the Department assumes the following:
All LEAs, including those that do not offer athletic
teams, will engage in an initial review of the rule;
In 20 percent of States, the State athletic association
and LEAs offering athletic teams whose policies already permit students
to participate on male or female teams consistent with their gender
identity will undertake a review but would be unlikely to revise their
existing policies;
In 20 percent of States, the State athletic association
and LEAs offering athletic teams whose policies impose requirements
that enable most or all transgender students to participate consistent
with their gender identity will undertake a more intensive review but
would also be unlikely to revise their existing policies; and
In 60 percent of States, the State athletic association
and LEAs offering athletic teams whose policies prohibit or
significantly restrict participation by transgender students consistent
with their gender identity will undertake a more intensive review and
will revise their existing policies.
The Department anticipates that the 60 percent of State athletic
associations and LEAs in this final category will experience burdens
associated with revising their policies for a variety of reasons. Some
of these associations may have more complex policy structures than
others (e.g., different policies for different sports as opposed to a
single policy affecting all sports). Others may have particular
bureaucratic structures (e.g., standing review panels), public
participation requirements (e.g., 45 days of public comment), or assent
requirements (e.g., a certain percentage of member LEAs must agree to
any policy change). The Department seeks specific public comment on the
extent to which such structures or requirements may exist and where,
how they would impact the estimates included here, and whether, as a
result, it would be appropriate for the Department to subdivide this
final category to account for variation in the field.
The Department recognizes that LEAs are not evenly distributed
across States and, therefore, the policies of a single State athletic
association could affect more LEAs than the policies of multiple other
State athletic associations that serve a smaller number of schools.
However, for purposes of this analysis, the Department assumes that, if
45 percent of State athletic associations implement a particular
policy, 45 percent of LEAs offering athletic teams would be affected.
More specific estimates would require the Department to develop
independent estimates for specific States or groups of States and then
correlate those State-specific effects and responses to estimates of
the number of LEAs offering athletic teams in each State. There is not
enough information available to the Department to develop reliable
estimates at this level of granularity, and therefore the Department
assumes an equal distribution of LEAs.
The Department also assumes that State athletic associations engage
in periodic reviews and updates to their policies. Although the
proposed regulation would not require such reviews, the Department
believes the proposed regulation would likely factor into these
reviews. The Department assumes any subsequent review of policies in
this area would be unlikely to occur for several years after the
initial review to determine compliance with the proposed regulation,
but also assumes that approximately five State athletic associations
would review these policies each year thereafter. Of those, the
Department estimates approximately one State athletic association would
engage in a policy revision each year. The Department requests specific
public comment on the extent to which State athletic associations are
likely to engage in a review of these policies and on what timeline
such reviews may occur.
Finally, as noted above, in the vast majority of States,
determinations regarding eligibility of particular student-athletes are
made at the local level (i.e., school or LEA). The Department assumes
State athletic associations, once they have revised their policies,
will train LEA staff (e.g., athletic directors) to make those
determinations. LEA staff in these positions likely already receive
regular training from the State athletic association; therefore, the
Department assumes that any training regarding eligibility
determinations would likely supplant other training, or time devoted to
other topics would be adjusted to make time to train LEA staff on this
topic.
The Department also notes the relatively low number of transgender
student-athletes relative to the overall population of student-
athletes. See, e.g., Hecox, 479 F. Supp. 3d at 982 (noting the
``incredibly small percentage of transgender women athletes''). To the
extent additional training is required beyond the standard training to
all athletic directors and staff, the Department anticipates that it
will be conducted on an ad hoc basis as necessary. The Department
therefore assumes that there will be no additional time burdens above
baseline associated with training in future years.
[[Page 22885]]
Athletic Competition in IHE Entities
In general, the Department assumes that only IHEs offering separate
male and female athletic teams would be directly affected by the
proposed regulation. However, the Department is unaware of any
comprehensive data source on the number of IHEs that offer such teams,
including in club and intramural athletics. Based on the information in
Establishing a Baseline (Section 2.B.1) above, the Department assumes
that participation varies by entity type, including whether an
institution is public or private, and size, among other factors. For
example, the Department assumes that less-than-2-year private, for-
profit IHEs, such as those offering cosmetology or other specific
career training programs, are less likely than 4-year IHEs to offer
athletic teams. The Department requests specific public comment on the
extent to which any high-quality data sources exist regarding IHE
offerings of athletic teams, beyond the data from the National Center
for Education Statistics cited above, and the extent to which such data
can be used for this analysis.
As noted above, although all IHEs that are recipients of Federal
financial assistance would be subject to the proposed regulation, they
generally do not independently establish requirements for participation
in intercollegiate competition. Instead, IHEs typically participate as
members of one or more national athletic associations, which generally
establish these requirements. However, the Department notes that
recipient IHEs, like all recipients of Federal funds, must comply with
Title IX and the obligation to do so is not alleviated by any contrary
athletic association rule. See 34 CFR 106.6(c). Because of this
obligation, the Department assumes that many IHEs would advocate, as
members of one or more national athletic associations, to ensure that
their associations' policies related to students' participation
consistent with their gender identity comply with the Department's
regulation. As a result, the Department believes it is reasonable to
assume that national athletic associations would review and, as
necessary, revise their policies to comply with the proposed regulation
on this issue.
For purposes of this analysis, the Department has not evaluated
existing policies governing intercollegiate athletics such as national
athletic association policies to determine whether they would comply
with the proposed regulation. However, the Department assumes that due
to the nature of the proposed regulation and the potential implications
of non-compliance with Title IX for their members, all national
athletic associations would engage in some degree of review of their
policies to comply with the proposed regulation. Further, the
Department assumes that all IHEs offering athletic teams would spend
time reviewing their own policies governing athletic participation not
sponsored by a national athletic association (e.g., intramural sports
leagues). The Department further assumes that, upon revision of
policies by a national athletic association, a subset of affected IHEs
would conduct an independent review of the revised policies to
independently assess whether the policies are compliant with the
proposed regulation. The Department assumes that these reviews would
most likely occur at larger, better-resourced IHEs, with the remainder
of IHEs assuming that the policies promulgated or approved by their
respective athletic associations comply with the proposed regulation
without conducting further analysis. The Department does not assume the
adoption, elimination, or modification of any specific policy.
For purposes of this analysis, the Department assumes the
following:
All IHEs, including those that do not offer athletic
teams, will complete an initial review of the proposed regulation;
Forty percent of IHEs (those offering athletic teams,
including intercollegiate as well as intramural) will undertake a more
intensive review of the proposed regulation and their existing
policies;
Twenty percent of IHEs will revise their institution-
specific policies (e.g., those governing intramural sports) after
conducting the more intensive review just described;
All five named athletic associations and two additional
athletic associations will extensively review their policies, and of
those seven athletic associations, four will revise their policies to
comply with the proposed regulation; and
As a result of athletic association policy changes, 10
percent of IHEs will conduct a secondary review of those new athletic
association policies to assess compliance with the proposed regulation.
Estimating specific effects the proposed regulation would have on
IHEs is difficult for a variety of reasons. First, because national
athletic associations range in size and number of member IHEs, policy
revisions undertaken by one national athletic association may have more
far-reaching effects than those of another. Second, of the IHEs
reporting membership in an athletic association, 132 IHEs reported
membership in more than one association. Each national athletic
association would likely have one or more member IHE that is also a
member of another athletic association. As a result, it is likely that
associations would establish policies that account for other
associations' policies and that all associations would have an
incentive to promote alignment, which would reduce compliance burdens
on dual-member IHEs. Depending on which associations revise their
policies, the extent to which they do so, the timing of their
revisions, and the degree of motivation on the part of other
associations to align their policies, there could be widely varying
effects. For example, if the NCAA adopts a significant policy revision
based on the proposed regulation, that revision would directly affect
more than half of all IHEs offering athletic teams. This revision may
also prompt smaller associations to adopt similar policies to align
with the NCAA, and as a result, nearly all IHEs offering athletic teams
would be impacted. By contrast, if a small association adopts a policy
change affecting only a small number of IHEs that are not members of
additional associations, effects may be limited because other
associations may choose not to align their policies. The Department
seeks specific public comment on its analysis and information on how to
better evaluate the factors that would contribute to the effects of
policy revisions by one athletic association on the policies of other
associations.
The Department assumes that national athletic associations
periodically review and update their policies. Although the proposed
regulation would not require periodic reviews, the Department believes
national athletic associations will consider the proposed regulation in
their review process. The Department assumes national athletic
associations are unlikely to review their policies in this area for
several years after completing their initial review, but thereafter
assumes that every year there would be approximately two national
athletic associations that would review these policies. The Department
assumes that most associations review their policies on a 3-year cycle.
The Department seeks specific public comment on whether such a timeline
is reasonable.
Of those associations that conduct a review, the Department
estimates that approximately one athletic association will revise its
policies each year. The Department requests specific public comment on
the extent to which athletic
[[Page 22886]]
associations are likely to review their policies and on what timeline
these reviews may occur.
The Department anticipates that IHE entities will incur minimal
additional training costs, similar to its projections for ESE entities,
as a result of the proposed regulation. The Department assumes national
athletic associations provide annual training to IHE staff (e.g.,
athletic directors) on a range of policy issues, and as a result of the
proposed regulation, this annual training would cover any new policies.
The Department assumes that there will be no additional time burdens
above baseline associated with training in future years. The Department
seeks specific public comment on the extent to which these estimates
and assumptions are reasonable.
Finally, the Department recognizes that this Athletics NPRM comes
at a time when IHEs that offer intercollegiate athletic teams may be
affected by changes to national and international sex-related criteria
for determining students' eligibility to participate on male or female
teams. It is the Department's current view that by regulating during a
time when changes are ongoing, the proposed regulation may reduce costs
by providing some certainty about what regulatory requirements must be
met on this issue to fulfill a recipient's obligations under Title IX;
at the same time, because these changes are ongoing, the Department
cannot predict the nature of future eligibility criteria that may be
adopted by the NCAA or other national athletic associations with any
degree of certainty.
2.B.3. Cost Estimates
Athletic Competition in ESE Entities
The Department estimates that, to comply with the proposed
regulation, all regulated entities, including those that do not offer
an athletic program, would take time to review the regulation to
determine whether it applies to their entity, as the Department
generally assumes that all regulated entities will have some level of
interest in the proposed regulation. At the LEA level, the Department
assumes this initial review, which is limited to determining whether
the regulation applies, would take an education administrator
approximately half an hour to complete (at $100.36/hour) \20\ at 18,083
LEAs, for a total Year 1 cost of $907,400.
---------------------------------------------------------------------------
\20\ For purposes of this regulatory impact analysis, the
Department uses wage rates from the U.S. Bureau of Labor Statistics'
May 2021 National Industry-Specific Occupational Employment and Wage
Estimates (NAICS 611000--Educational Services), available at https://www.bls.gov/oes/current/naics3_611000.htm. The Department uses a
loading factor of 2.0 to account for the costs of overhead,
benefits, and other non-wage expenses.
---------------------------------------------------------------------------
For State athletic associations and LEAs offering athletic teams,
the Department assumes those entities in 20 percent of States will
engage in a less intensive review of their existing policies. The
Department estimates that all LEAs would also spend time reviewing
their own policies for intramural and other athletic activities not
otherwise governed by a State athletic association for compliance with
the Department's regulation. The Department does not anticipate that
this review would be burdensome because the Department assumes that
there are fewer activities of this type. The Department assumes that
this review would be more burdensome for State athletic associations
given the number of LEAs and athletic programs implicated. The
Department welcomes comments on the accuracy of these assumptions. At
the LEA level, the Department estimates this review would require 2
hours each from an education administrator \21\ and management analyst
\22\ ($81.56/hour) at 2,169 LEAs. For State athletic associations, the
Department estimates that this activity would take 4 hours for an
education administrator, 4 hours for a management analyst, and 2 hours
for an attorney ($148.76/hour) at each of 10 associations. In total, we
estimate that these activities would cost approximately $799,420 in
Year 1.
---------------------------------------------------------------------------
\21\ As used in this regulatory impact analysis, the term
``education administrator'' is intended to encompass staff in
leadership and senior leadership roles in an organization, such as a
superintendent, assistant superintendent, or athletic director.
\22\ As used in this regulatory impact analysis, the term
``management analyst'' is intended to encompass non-legal program
and agency staff including, but not limited to, athletic coaches,
project officers, or athletic department staff.
---------------------------------------------------------------------------
In the remaining 80 percent of States, the Department estimates
that LEAs and State athletic associations would engage in a more
intensive review of their policies on athletic participation because
their existing policies restrict, to some degree, the participation of
students on male or female teams consistent with their gender identity.
This intensive review would be used by LEAs and State athletic
associations to determine whether existing policies are compliant as
written or whether the policies would need to be revised to comply with
the proposed regulation. At the LEA level, the Department estimates
that this work will take 4 hours each for an education administrator
and a management analyst in 8,679 LEAs to complete. For State athletic
associations, the Department estimates that this work would take 6
hours from an education administrator, 6 hours from a management
analyst, and 2 hours for one attorney working on behalf of each of 41
associations. In total, the Department estimates this activity would
cost approximately $6,372,490 in Year 1.
The Department estimates that State athletic associations in
approximately 60 percent of States would opt to revise their existing
policies upon completing their review. The Department estimates that
some LEA staff would be involved in this process by, for example,
commenting on draft proposals or participating in roundtable
discussions. At State athletic associations, the Department assumes it
would take less time to revise existing policies than to complete the
review of the proposed regulation; the Department bases its estimate on
the assumption that many issues to be addressed would have already been
identified during the initial review. At the LEA level, the Department
assumes one education administrator would spend 4 hours at each of
6,509 LEAs on this task. At the State athletic association level, the
Department estimates this task would require 4 hours from an education
administrator, 20 hours from a management analyst, and 12 hours from an
attorney. In total, the Department estimates it would cost
approximately $2,731,320 in Year 1 for 31 State athletic associations
to revise their policies governing students' eligibility to participate
on male or female teams consistent with their gender identity.
After policies have been revised, the Department assumes that State
athletic associations would develop and deliver updated training about
their new policies to staff in affected LEAs. The Department further
assumes that developing the training would require 10 hours from a
management analyst, 10 hours from a lawyer, and 1 hour from an
education administrator to review and approve the training in each of
31 associations. The Department anticipates that this training would
take an additional 30 minutes above existing training obligations for
an education administrator in each of 6,509 LEAs. In total, the
Department estimates that updated training would cost approximately
$401,130 in Year 1.
In future years, the Department assumes that approximately five
State athletic associations per year would undertake a review of their
policies on students' participation consistent with their gender
identity. The Department assumes this task would require 1 hour from an
education administrator, 4
[[Page 22887]]
hours from a management analyst, and 2 hours from a lawyer for a total
cost of approximately $3,620 per year beginning in Year 3.
Each year, the Department assumes that one of those five
associations will opt to revise their policies. We estimate that this
revision would require 4 hours from an education administrator, 16
hours from a management analyst, and 10 hours from a lawyer for a total
cost of approximately $3,190 per year beginning in Year 3.
At the ESE level, the Department estimates that the proposed
regulation would generate a present value monetized cost of $10.5 to
$10.9 million over 10 years, assuming a seven percent and three percent
discount rate, respectively.
Athletic Competition in IHE Entities
The Department estimates that to comply with the proposed
regulation, all regulated entities, including those that do not offer
an athletic program, would take time to review the proposed regulation
to determine whether it applies to their entity, because the Department
generally assumes that all regulated entities will have some level of
interest in the proposed regulation. At the IHE level, the Department
assumes this initial review, which is limited to determining whether
the regulation applies, would take an education administrator
approximately 1 hour to complete at each of 6,045 IHEs for a total Year
1 cost of $607,580.
For IHEs offering athletic teams, the Department estimates that
these entities would spend time reviewing their own policies regarding
participation in athletics for compliance with the proposed regulation.
At the IHE level, the Department estimates this internal policy review
would require 8 hours from an education administrator, 8 hours from a
management analyst, and 6 hours for an attorney working on behalf of
each of 2,148 IHEs. In total, the Department estimates that these
activities would cost approximately $5,043,330 in Year 1.
The Department further estimates that approximately 20 percent of
IHEs would, as a result of their internal policy review, opt to make
revisions to their policies. The Department estimates that such
revisions would require 4 hours from one education administrator, 30
hours from a management analyst, and 16 hours from an attorney at each
of 1,210 IHEs. In total, the Department estimates that these activities
would have a total cost of $6,326,360 in Year 1.
The Department estimates that the five named athletic associations
and two additional national athletic associations would conduct a
review of their policies as a result of the proposed regulation. The
Department estimates that these internal policy reviews would require 8
hours each from four education administrators, 8 hours each from four
management analysts, and 6 hours each from two attorneys. In total, we
estimate that this review would cost approximately $53,250 in Year 1.
The Department further estimates that, as a result of their
internal policy reviews, four national athletic associations would
choose to revise their policies. The Department estimates that this
revision would require 15 hours each from four education
administrators, 20 hours each from four management analysts, and 12
hours each from two attorneys. Further, after those revisions are
finalized, the Department assumes that approximately 10 percent of IHEs
would conduct their own review of the policies prior to implementing
them. The Department estimates that this secondary review would require
8 hours each from an education administrator and management analyst and
6 hours from an attorney. In total, the Department estimates these
revisions would cost approximately $1,484,960.
The Department further assumes that each of those four athletic
associations would update training materials consistent with their
revised policies. The Department assumes that these revisions would
require 8 hours from an education administrator, 32 hours from a
management analyst, and 10 hours from an attorney. The Department
further estimates that the updated training would require an additional
hour for an education administrator at each of 1,289 IHEs. In total,
the Department estimates that updated training would cost approximately
$148,970 in Year 1.
The Department assumes that in future years approximately two
national athletic associations per year would undertake a review of
their policies on students' participation consistent with their gender
identity. The Department assumes this task would require 4 hours each
from four education administrators, 8 hours each from four management
analysts, and 6 hours each from two attorneys for a total cost of
approximately $12,000 per year beginning in Year 3.
The Department assumes that each year, one of those associations
would opt to revise its policies. The Department estimates that this
revision would require 8 hours each from four education administrators,
16 hours each from four management analysts, and 10 hours each from two
attorneys, for a total cost of approximately $11,410 per year beginning
in Year 3.
At the IHE level, the Department estimates the proposed regulation
would generate total present value monetized costs of $12.9 to $13.4
million over 10 years, assuming a seven percent and three percent
discount rate, respectively.
3. Regulatory Alternatives Considered
The Department reviewed and assessed various alternatives prior to
issuing the proposed regulation, drawing from internal sources as well
as stakeholder feedback OCR received. Specifically, the Department
considered the following actions: (1) leaving the current regulations
without amendment; (2) addressing the issue through guidance; (3)
proposing amendments to the regulations to specify permissible
eligibility requirements; or (4) proposing a regulatory standard that
can be effectively implemented, consistent with Title IX, by recipients
serving students at varying grade and education levels in a variety of
male and female team sports at varying levels of competition.
For the reasons described above, Department currently believes
alternative (4) is the best option. In light of its review of Title IX
and its regulations, stakeholder feedback, and developments in case law
and in the sex-related eligibility criteria set by some school
districts, States and other organizations (including athletic
associations and sport governing bodies), it is the Department's
current view that the proposed regulation would better ensure
fulfillment of Title IX's nondiscrimination guarantee and would provide
more clarity as to how Title IX applies to sex-related criteria that
would limit or deny students' eligibility to participate on male or
female teams consistent with their gender identity.
For these reasons and those explained throughout the preamble, and
in light of stakeholder feedback received in 2021 and 2022, the
Department does not believe alternative (1), which would leave the
current regulations without amendment, is a reasonable option. The
Department rejected alternative (2), which would address the issue
through guidance, because the Department continues to believe it is
necessary to establish, through regulations, the legal obligations of a
recipient to ensure that its education program or activity is free from
all forms of sex discrimination. Guidance documents, which are not
legally binding on a recipient, would not serve that function. The
Department
[[Page 22888]]
rejected alternative (3), which would propose amendments to the
regulations to specify permissible eligibility requirements, because it
would not allow for the Department to appropriately assess whether a
recipient's criteria are responsive to the grade or education level of
students, the nature of a particular sport, the level of competition,
or other factors.
After careful consideration of these alternatives, the Department
proposes that adopting option (4), which is to propose the regulatory
standard put forward here, would best clarify recipients' legal
obligations and most appropriately implement Title IX's guarantee of
nondiscrimination on the basis of sex by recipients of Federal funds in
the unique context of athletic teams offered by schools. Specifically,
the Department's preliminary conclusion is that alternative (4) would
help ensure that recipients understand the standard that would govern
if they adopt or apply sex-related eligibility criteria for determining
student participation on male or female athletic teams, in a manner
that ensures overall equality of athletic opportunity based on sex. The
Department's current view is that alternative (4) also strikes the
appropriate balance between Title IX's guarantee that a recipient's
education program or activity be free from sex discrimination and the
unique considerations in the context of athletics.
4. Accounting Statement
As required by OMB Circular A-4, the following table is the
Department's accounting statement showing the classification of the
expenditures associated with the provisions of the proposed regulation.
This table provides the Department's best estimate of the changes in
annualized monetized costs, benefits, and transfers because of the
proposed regulation.
------------------------------------------------------------------------
Category Benefits
------------------------------------------------------------------------
Clarity for recipients and Not quantified.
students concerning the standard
for adopting and applying sex-
related eligibility criteria to
participate on a particular male
or female athletic team.
Protecting students' equal Not quantified.
opportunity to participate on
male and female teams and the
physical and mental health and
other benefits associated with
that team participation.
------------------------------------------------------------------------
Costs (calculated on an annual
basis)
-------------------------------------
3% Discount rate 7% Discount rate
------------------------------------------------------------------------
Preliminary Review of the $172,000 $202,000
Regulation.......................
Review of Policies................ 1,396,000 1,632,000
Revision of Policies.............. 1,200,000 1,403,000
Updated Training.................. 63,000 73,000
Periodic Review of Policies....... 12,000 12,000
Periodic Updating of Policies..... 11,000 11,000
-------------------------------------
Total......................... 2,855,000 3,333,000
------------------------------------------------------------------------
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand. The Secretary invites comments
on how to make the proposed regulation easier to understand, including
answers to questions such as the following:
Are the requirements in the proposed regulation clearly
stated?
Does the proposed regulation contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulation (use of
headings, paragraphing, etc.) aid or reduce their clarity?
Would the proposed regulation be easier to understand if
the Department divided it into more (but shorter) sections? (A
``section'' is preceded by the symbol ``section'' and a numbered
heading; for example, Sec. 106.41 Athletics.)
Could the description of the proposed regulation in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulation easier to understand? If so, how?
What else might the Department do to make the proposed
regulation easier to understand?
To send comments that concern how the Department could make the
proposed regulation easier to understand, see the instructions in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act (Small Business Impacts)
1. Introduction
This analysis, required by the Regulatory Flexibility Act (RFA),
presents an estimate of the effect of the proposed regulation on small
entities. The U.S. Small Business Administration (SBA) Size Standards
define ``proprietary IHEs'' as small businesses if they are
independently owned and operated, are not dominant in their field of
operation, and have total annual revenue below $7,000,000. ``Nonprofit
institutions'' are defined as small entities if they are independently
owned and operated and not dominant in their field of operation.
``Public institutions and LEAs'' are defined as small organizations if
they are operated by a government overseeing a population below 50,000.
2. Initial Regulatory Flexibility Analysis
As explained in the Establishing a Baseline (Section 2.B.1) section
of the RIA, there is a lack of high quality, comprehensive data about
whether particular recipients offer athletic teams, whether intramural
or interscholastic, whether recipients are likely to revise athletic
eligibility policies as a result of the proposed regulation, and the
likely impact of any such changes. As a result, the Department could
not definitively conclude that burdens on small entities would be
sufficiently low to justify certification under the RFA. If an agency
is unable to make such a certification, it must prepare an Initial
Regulatory Flexibility Analysis (IRFA) as described in the RFA. Based
on the data available, the Department has completed an IRFA and
requests comments from affected small entities.
The purpose of this analysis is to identify the number of small
entities affected, assess the economic impact of the proposed
regulation on those small entities, and consider alternatives that may
be less burdensome to small entities that meet the Department's
[[Page 22889]]
regulatory objectives. Specifically, the Department estimates the
number of small entities potentially impacted by the proposed
regulation in the discussion of Estimated Number of Small Entities
(Section 2.B), assesses the potential economic impact of the proposed
regulation on those small entities in the discussion of Estimate of the
Projected Burden of the Proposed Regulation on Small Entities (Section
2.C), and examines and considers less burdensome alternatives to the
proposed regulation for small entities in the Discussion of Significant
Alternatives (Section 2.D). The Department requests comment on the
extent to which the burden assumptions described in the RIA are
reasonable for small entities (i.e., whether particular activities are
likely to take more or less time or cost more or less than otherwise
estimated).
2.A. Reasons for Regulating
The Department proposes this regulation to provide greater clarity
to recipients and other stakeholders about the standard that a
recipient must meet under Title IX if it adopts or applies sex-related
criteria that would limit or deny a student's eligibility to
participate on a particular male or female athletic team consistent
with their gender identity. The proposed regulation is consistent with
the current regulations' framework for providing equal opportunity
regardless of sex in a recipient's athletic program as a whole and with
Congress's direction that the Title IX regulations include ``reasonable
provisions'' that ``consider[] the nature of particular sports.''
Education Amendments of 1974 section 844.
2.B. Estimated Number of Small Entities
Consistent with the 2020 amendments to the Department's Title IX
regulations (see 85 FR 30026), for purposes of assessing the impacts on
small entities, the Department proposes defining a ``small IHE'' as a
2-year institution of higher education with an enrollment of fewer than
500 full time equivalent (FTE) or a 4-year IHE with an enrollment of
fewer than 1,000 FTE based on official 2020 FTE enrollment. The
Department also proposes defining a ``small LEA'' as a local education
agency with annual revenues of less than $7,000,000.
During the 2020-2021 school year, according to the National Center
for Education Statistics, of the 6,165 Title IV participating IHEs for
which sufficient data are available, 2,803 were 4-year institutions,
1,644 were 2-year institutions, and 1,718 were less-than-2-year
institutions. Of those, 1,226 4-year institutions, 690 2-year
institutions, and 1,650 less-than-2-year institutions met the
Department's proposed definition of a ``small IHE.''
Table 1--Number of Small IHES, Fall 2020
----------------------------------------------------------------------------------------------------------------
Less than 2-
4-Year 2-Year year Total
----------------------------------------------------------------------------------------------------------------
Not Small....................................... 1,577 954 68 2,599
Small........................................... 1,226 690 1,650 3,566
---------------------------------------------------------------
Total....................................... 2,803 1,644 1,718 6,165
----------------------------------------------------------------------------------------------------------------
During the 2018-2019 school year, 6,518 of the 17,798 LEAs with
available revenue data met the Department's proposed definition of a
``small LEA.''
Table 2--Number of Small LEAs, Fall 2018
------------------------------------------------------------------------
LEAs
------------------------------------------------------------------------
Not Small............................................... 11,280
Small................................................... 6,518
---------------
Total............................................... 17,798
------------------------------------------------------------------------
2.C. Estimate of the Projected Burden of the Proposed Regulation on
Small Entities
Based on the assumptions described in the RIA, an IHE that reviews
and revises its policies as a result of the proposed regulation would
see a net increase in costs of approximately $560 per year (assuming a
discount rate of 3 percent). The Department notes that this estimate
assumes an IHE that offers single-sex athletic teams. The Department
believes that smaller IHEs, such as many offering less-than-2-year
programs, are less likely than other IHEs to offer athletic teams and
therefore would experience no additional costs.
According to data from the Integrated Postsecondary Education Data
System (IPEDS), in FY 2019, small IHEs had, on average, total revenues
of approximately $10,349,540. Therefore, the Department estimates that
the proposed regulation could generate a net cost for small IHEs equal
to approximately 0.005 percent of annual revenue when they choose to
review their policies. According to data from IPEDS, approximately 30
IHEs had total reported nonzero annual revenues of less than $56,000,
for which the costs estimated above would potentially exceed 1 percent
of total revenues. Three of these IHEs reported no enrollment data for
the Fall 2020. The remaining IHEs enrolled, on average, 65 students in
Fall 2020. None of these IHEs reported membership in a national
athletic association. Twenty-three of the IHEs were vocational or
technical schools and four were administrative units associated with
larger college systems. The Department believes it is highly unlikely
that these small IHEs offer athletic teams and, if they do, that they
would regularly offer single-sex athletic teams.
Based on the assumptions described in the Cost Estimates (Section
2.B.3) discussion of the RIA, an LEA that engages in an intensive
review and revision of its policies would see a net increase in costs
of approximately $140 per year (assuming a discount rate of 3 percent).
The Department notes that these estimates assume a small LEA that
offers athletic teams. Many small LEAs may not be impacted by the
proposed regulation, given that they may not offer athletic teams. The
Department estimates that small LEAs that do not offer athletic teams
would experience no additional costs.
In 2018-2019, small LEAs had an average total revenue of
approximately $3,450,911. Therefore, the Department estimates that the
proposed regulation could generate a net cost for small LEAs of
approximately 0.004 percent of total revenues. According to data from
the National Center for Education Statistics, in 2018-2019, six small
LEAs reported nonzero total revenues of less than $14,000, for which
the estimated costs would potentially exceed 1 percent of total
revenues. Among those, four small LEAs had zero students enrolled
during the 2018-2019 academic year and the reported revenues for the
remaining two would result in calculated total revenues of less than
$10 per student. Based on this analysis, the Department
[[Page 22890]]
believes that these are likely reporting errors and, therefore, the
Department does not believe the estimated costs would exceed 1 percent
of total revenues for any affected small LEA.
As part of the 2017-2018 CRDC, respondents were asked about the
number of male and female athletic teams offered at the high school
level. In analyzing the data in conjunction with information from the
National Center on Education Statistics, small LEAs that served
students in high school were less likely than larger LEAs to report at
least one male or female team (30 percent of small LEAs indicated that
the item was not applicable, compared with only 12 percent among non-
small LEAs). Further, among those that reported at least one male or
female athletic team, small LEAs operated, on average, approximately
one-fifth as many teams as non-small LEAs (8.7 teams on average
compared to 39.4).
The Department requests comment on any additional burdens for small
entities.
2.D. Discussion of Significant Alternatives
As discussed in section 3 above (Regulatory Alternatives
Considered), the Department reviewed and assessed various alternatives
prior to issuing the proposed regulation, drawing on stakeholder
feedback OCR received. Specifically, the Department considered: (1)
leaving the current regulations without amendment; (2) addressing the
issue through guidance; (3) proposing amendments to the regulations to
specify permissible eligibility requirements; or (4) proposing a
regulatory standard that can be effectively implemented, consistent
with Title IX, by recipients serving students at varying grade and
education levels in a variety of team sports at varying levels of
competition.
As the Department described in the Regulatory Alternatives
Considered (section 3) discussion of the RIA, it currently believes
that alternative (4) is the best option, including that it is the
Department's current view that the proposed regulation would better
ensure fulfillment of Title IX's nondiscrimination guarantee and would
provide more clarity as to how Title IX applies to sex-related criteria
that would limit or deny students' eligibility to participate on male
or female teams consistent with their gender identity.
After careful consideration of the four alternatives discussed
above, the Department proposes that adopting option (4) would best
clarify recipients' legal obligations and most appropriately implement
Title IX's guarantee of nondiscrimination on the basis of sex by
recipients of Federal funds in the unique context of athletic teams
offered by schools. Specifically, the Department's preliminary
conclusion is that alternative (4) would help ensure recipients
understand the standard that would govern if they adopt or apply sex-
related eligibility criteria for determining student participation on
male or female athletic teams and thereby protect students' equal
opportunity to participate on male and female teams consistent with
Title IX. The Department's current view is that alternative (4) also
strikes the appropriate balance between Title IX's guarantee that a
recipient's education program or activity be free from sex
discrimination and the unique considerations in the context of
athletics.
The Department also considered whether proposing different
requirements for smaller-sized recipients than for mid-sized or larger
ones would reduce any potential burden on smaller entities. The
Department rejects this alternative at this time because Title IX
rights do not depend on the size of a recipient, and the proposed
regulation is sufficiently adaptable so that small entities, along with
other entities, can adopt the approach that works best for their
particular educational environment.
Executive Order 12250 on Leadership and Coordination of
Nondiscrimination Laws
Under Executive Order 12250, the Attorney General has the
responsibility to ``review . . . proposed rules . . . of the Executive
agencies'' implementing nondiscrimination statutes such as Title IX
``in order to identify those which are inadequate, unclear or
unnecessarily inconsistent.'' \23\ The Attorney General has delegated
that function to the Assistant Attorney General for the Civil Rights
Division for purposes of reviewing and approving proposed rules, 28 CFR
0.51, and the Assistant Attorney General has reviewed and approved this
proposed rule.
---------------------------------------------------------------------------
\23\ Executive Order on Leadership and Coordination of
Nondiscrimination Laws, Exec. Order No. 12250, 45 FR 72995 (Nov. 4,
1980), https://tile.loc.gov/storage-services/service/ll/fedreg/fr045/fr045215/fr045215.pdf.
---------------------------------------------------------------------------
Paperwork Reduction Act of 1995
This proposed regulation does not contain any information
collection requirements.
Intergovernmental Review: This program is not subject to Executive
Order 12372 and the regulations in 34 CFR part 79 because it is not a
program or activity of the Department that provides Federal financial
assistance.
Assessment of Educational Impact: In accordance with section 411 of
the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary
particularly requests comments on whether the proposed regulation would
require transmission of information that any other agency or authority
of the United States gathers or makes available.
Federalism: Executive Order 13132 requires the Department to ensure
meaningful and timely input by State and local elected officials in the
development of regulatory policies that have federalism implications.
``Federalism implications'' means substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The proposed regulation--Sec.
106.41(b)(2)--may have federalism implications. We encourage State and
local elected officials to review and provide comments on this proposed
regulation.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document in an accessible format. The Department will
provide the requestor with an accessible format that may include Rich
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file,
braille, large print, audiotape, or compact disc, or other accessible
format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at https://www.govinfo.gov. At this site you can
view this document, as well as all other documents of this Department
published in the Federal Register, in text or Adobe Portable Document
Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is
available free at the site. You may also access documents of the
Department published in the Federal Register by using the article
search feature at https://www.federalregister.gov. Specifically,
through the advanced search feature at this site, you can limit your
search to documents published by the Department.
[[Page 22891]]
List of Subjects in 34 CFR Part 106
Civil rights, Education, Sex discrimination, Youth organizations.
Miguel A. Cardona,
Secretary of Education.
For the reasons discussed in the preamble, the Department of
Education proposes to amend 34 CFR part 106 to read as follows:
PART 106--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
0
1. The authority citation for part 106 continues to read as follows:
Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.
0
2. Section 106.41 is amended by:
0
a. Designating the text following the heading in paragraph (b) as
paragraph (b)(1); and
0
b. Adding paragraph (b)(2).
The addition reads as follows:
Sec. 106.41 Athletics.
* * * * *
(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.
* * * * *
[FR Doc. 2023-07601 Filed 4-12-23; 8:45 am]
BILLING CODE 4000-01-P
