Title IX Proposed Rulemaking Addresses Athletic Participation Consistent with California Law

05.04.2023

Following two years of outreach, on April 6, 2023, the U.S. Department of Education released a notice of proposed rulemaking to address athletic eligibility under Title IX with the purpose of “advancing Title IX’s longstanding goal of ensuring equal opportunity in athletics.”[1] The new proposed regulation is designed, in part, to address uncertainty faced by education institutions and coaches in addressing sports participation of students whose gender identity is different from the sex they were assigned at birth (i.e. transgender students). The proposed regulation attempts to provide clarity, particularly in light of state laws which may lead to questions for practitioners.

The proposed regulation change would include the following language in the Title IX regulations at section 106.41(b)(2):

If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level:

(i) be substantially related to the achievement of an important educational objective, and

(ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

As identified by the U.S. Department of Education, the proposed regulation does not modify that education institutions can offer separate men’s/boy’s and women’s/girl’s teams in certain circumstances, nor does it modify the longstanding requirements that women and girls be afforded equal athletic opportunities. The proposed regulation continues to support Title IX’s nondiscrimination requirements, but provides flexibility to education institutions in how they achieve educational objectives through athletics. The newly proposed language permits criteria to be put in place to restrict transgender students from participating on teams in a way that would be inconsistent with the students’ gender identity only if the educational institution considers multiple factors such as sports, level of competition, grade, and education level..

The proposed regulations do not support a “one-size-fits-all” policy that categorically prohibits or bans transgender students from participating in athletics consistent with their gender identity. Instead, any restriction must account for differences among students across grades, education levels, levels of competitions (e.g., no-cut teams that let all students participate), and different types of sports.

The proposed addition to the Title IX regulations aligns with California’s law applicable to K-12 schools, which requires that students be permitted to participate in the sport or athletic team aligning with their gender identity. Currently, California K-12 schools are guided by the Sex Equity in Education Act, found at Education Code section 221.5(f), which requires that:

“A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

The California Interscholastic Federation’s (“CIF”) rules similarly provide students with the right to participate in athletics consistent with the student’s gender identity. The CIF rules also define procedures to challenge the student’s eligibility if a party believes the student’s participation is in error or done for improper purposes (e.g., solely to gain competitive advantage).

For postsecondary educational institutions, the proposed Title IX rule changes align with changes recently made by the National Collegiate Athletic Association (“NCAA”) and the International Olympic Committee (“IOC”). More specifically, in 2022 the NCAA updated its Transgender Participation Policy[2] to state that transgender student-athlete participation should be determined sport-by-sport pursuant to the policy for the national governing body of that sport 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 policy includes sport-by-sport testosterone level requirements. At this time, the California Community College Athletic Association does not have a similar sport-by-sport testosterone level requirement or bylaw but does include a restriction against participation in female athletics for transgender female student athletes not taking hormone treatment.[3]

Public comment on the proposed regulation is open for 30 days from the date of publication of the proposed regulation in the Federal Register. The proposed regulation was published on April 15, 2023, thus comments must be received on or before May 15, 2023, and must be submitted via the Federal Rulemaking Portal at https://www.regulations.gov. Upon receipt of public comment, the government generally responds to select comments in the process of finalizing the regulation language, conducting internal agency review, and then publishing the final rule.

AALRR will continue to monitor the proposed rulemaking process. For further information regarding student athletics under Title IX, please contact your AALRR attorney or the authors of this Alert.