Title IX and Transgender Student Athlete Regulation

In the November 2022, issue of Trends, Topics and Views, we included an article discussing the U.S. Department of Education’s (DOE) issuance of proposed new administrative rules pertaining to Title IXⁱ and grievance procedures for complaints alleging sexual harassment and assault in schools receiving federal funds.ⁱⁱ Those rules addressed transgender students by interpreting Title IX prohibitions against sex discrimination as covering discrimination based on gender identity. At that time, however, the DOE advised that a separate rule would follow addressing the issue of transgender students’ participation in school sponsored athletic programs. That day arrived on April 6, 2023, with the DOE’s issuance of the long-awaited proposed rule that is the first policy stand taken by the Administration on this contentious issue.

According to the proposed rule, applicable only to sports teams sponsored by schools covered by Title IX (those schools receiving federal funds), schools may prevent transgender athletes from participating on school sports teams aligned with their gender identity in some instances, but blanket denials of such participation are in violation of Title IX. The only occasions in which a school may deny a student’s request to participate on the sports team aligned with his or her gender identity are those presenting issues of physicality and fairness, according to the proposed rule. Generally, elementary school students would always be allowed to participate on sports teams aligned with a student’s gender identity but as students get older and grow larger in stature, schools will be required under the rule to conduct a multipronged assessment to determine if the student should be allowed to participate on her gender aligned team. The rule’s criteria for use in making this assessment include the age of the student, the level of the fairness and the nature of the sport. In applying these criteria, for example, the decisions may well be different for a wrestling team than a badminton team.ⁱⁱⁱ

Reactions to the rule were mixed. Many Democrats and LGBTQ activists expressed concerns that it would increase opportunities for further discrimination against transgender student athletes.^iv Republicans and athletes who argue against including transgender women in women’s organized sports worry that the rule may undermine Title IX’s protections for women’s sports.^v Others applauded the DOE as having adopted a “nuanced approach” that strikes a balance between acknowledging that biological sex is a factor in many school athletic settings while at the same time maximizing opportunities for transgender athletes “by recognizing that sex differences emerge over time and matter less in certain educational environments, sports, and levels of competition.”^vi

On the same day that the DOE proposed its transgender student athlete rule, the U.S. Supreme Court entered an order refusing to intervene to enforce a 2021 West Virginia law that barred male transgender students from competing on girls’ sports teams in public schools.^vii The law requires that students participate on sports teams composed of students of their “biological sex,” defined as an individual’s physical form as a male or female based solely on the individual’s reproductive biology and genetics at birth.” The state had filed an emergency appeal to the Supreme Court seeking its reversal of a court of appeals decision enjoining enforcement of the state law since the injunction operated to allow the plaintiff, a 12-year-old middle school student track and field athlete, to continue competing on the girls’ team while her case is pending on appeal from an adverse lower court ruling.^viii The Supreme Court’s refusal to reverse the court of appeals means that the West Virginia law may not be enforced until or unless the case is finally decided in the state’s favor on the merits.