The Biden administration has proposed changes to Title IX regulations that would eliminate bans on transgender athletes’ participation in school sports, nationwide. These regulations could affect 19 states that have enacted some form of legislative ban upon trans athletes’ participation in school sports. Although the proposed changes would eliminate these outright legislative “bans,” the proposed regulations retain a carveout that could permit schools to restrict trans athletes’ participation in certain competitions.
When Would Restrictions be Permitted?
The Department of Education has advised that schools seeking to restrict trans athletes’ participation in sports would be required to consider the ages of students and the level of the competition at issue. Schools seeking to impose restrictions on trans student participants would only be permitted to do so if the proposed restrictions support “important educational objectives,” such as reducing injury, for example. Under the proposed regulations, elementary school students would more likely be permitted to participate on any teams consistent with their gender identities, while more competitive teams at the high school and collegiate level could add more restrictions. The Department did not offer examples of acceptable limits that can be placed on school sports, but it has clarified that restrictions may not be directed at trans students only. Schools that choose to impose the permissible “limits” on athletic participation must do so in a manner that will “minimize harms” to students who subsequently lose out on athletics opportunities, the proposal says. In practice, “minimizing harm” could mean schools offering co-ed sports options or providing discrete levels of competitive play in contact sports. If a school can achieve objectives like fairness and injury reduction in ways that do not single out trans students specifically, then the school could be deemed to be in violation of Title IX. The proposal must undergo a period of public comment before enactment. The precise way the proposed changes would be enforced, if enacted, remains to be seen.
Sport-by-Sport Approach
The NCAA, college sports’ governing body, has previously adopted a sport-by-sport approach to transgender student athletics in January of 2022. The NCAA policy changes were intended to bring the organization into conformity with the U.S. and International Olympic committees. National sports organizations have been utterly inconsistent in their policies surrounding transgender athletes’ participation in various competitions. NCAA policies punt the responsibility for determining policies to each sport’s national governing body “subject to ongoing review and recommendation by the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports to the Board of Governors.” The NCAA further:
“Urge[s] the divisions to provide flexibility to allow for additional eligibility if a transgender student-athlete loses eligibility based on the policy change provided they meet the newly adopted standards.”
These policies are at best unclear and could leave athletes excluded from participation with little recourse to challenge their exclusions. The proposed Title IX regulations could place greater enforcement power in the hands of students.
The attorneys in KJK’s Student and Athlete Defense practice group are closely monitoring these changes in the law and related policies affecting students. For more information or to discuss further, please contact Susan Stone (SCS@kjk.com; 216.736.7220), Kristina Supler (KWS@kjk.com; 216.736.7217), or Anna Bullock (AEB@kjk.com; 216.736.7223).