On April 6, 2023, the Department of Education (DOE) released a Notice of Proposed Rulemaking (NPRM), which provides schools with a framework for developing eligibility criteria for students who seek participation in athletic opportunities. The proposed framework allows schools to create their own participation policies.
The proposed regulation would be added to section 106.41(b)(2) and states:
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.
According to the DOE, the proposed regulation would not permit schools to adopt or apply a “one-size-fits-all policy” banning transgender students from participating on teams consistent with their gender identity. The DOE explains that this approach would allow schools flexibility to develop team eligibility criteria that ensure competition fairness or prevent sports-related injury, for example. The requirements would also have to account for the sport, level of competition, and grade or education level to which they apply. Additionally, the proposed regulation would not include a presumption to disapprove of transgender students or a desire to harm a particular student.
When applied to elementary schools, the DOE expects the proposed regulation will allow students to participate in school sports teams consistent with their gender identity. Moreover, the proposed regulation would make it difficult for a school to justify excluding students following elementary school from participating in teams consistent with their gender identity. For older students at the high school and college level, sex-related criteria that limit the participation of some transgender students may be permitted when they enable the school to achieve an important educational objective, such as fairness in competition, and meet the proposed regulation’s other requirements.
The DOE’s proposed changes will be open for public comment for 30 days from publication.