On Dec. 26, 2024, the U.S. Department of Education withdrew its proposed rulemaking regarding the application of sex-related criteria to participation on athletic teams under Title IX.
The Department published a notice of proposed rulemaking regarding limiting or denying a student’s ability to participate on an athletic team consistent with their gender identity on April 13, 2023. The Department’s proposed rule provided that if a recipient adopted or applied sex-related criteria that would limit or deny a student’s eligibility to participate on a team consistent with their gender identity, such criteria must be substantially related to the achievement of an important educational objective and minimize harms to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.
The Department received more than 150,000 responses during the 30-day public comment period for the proposed rulemaking. The comments included general support for the proposed regulation, requests for the regulation to provide for more students to participate on a sex-separate athletic team consistent with their gender identity and opposition to the regulation in its entirety. Recognizing that there also were multiple pending lawsuits related to Title IX’s application to athletic eligibility criteria, the Department withdrew its proposed rulemaking and terminated the rulemaking proceeding.
As a result, the Department will continue to apply the longstanding legal standards set forth in 34 CFR 106.41 when it receives complaints of discrimination regarding an alleged failure to provide equal opportunity to participate in athletics regardless of sex. That framework prohibits a recipient from discriminating on the basis of sex with respect to providing athletic programs or activities, permits a recipient to provide sex-segregated teams for competitive activities or contact sports, and obligates a recipient to provide equal athletic opportunity for members of both sexes.
In January 2021, the Office of the General Counsel of the Department under the Trump administration issued guidance related to the U.S. Supreme Court’s decision in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020). The guidance stated that, based on the statutory text and regulatory history of 34 C.F.R. § 106.41, it “seem[ed] clear that if a recipient chooses to provide ‘separate teams for members of each sex … 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.” With Trump set to return to office this month, that guidance may be reinstated.
Additionally, on Jan. 3, 2025, the U.S. Congress agreed to a rules package that included fast-tracking a bill to ban transgender athletes from competing in women’s sports. The proposed bill would add language to Title IX stating that it would be a violation for a recipient to “permit a person whose sex is male to participate in an athletic program or activity that is designated for women,” adding that “sex” can be solely defined as “a person’s reproductive biology and genetics at birth.”
McGuireWoods will continue to monitor developments in this area. For additional information or questions about the information contained in this legal alert, please contact the authors.