The United States Department of Education (DOE) has issued a proposed amendment to the regulations implementing Title IX and athletics. The proposed rule reads as follows:
If a recipient [of federal funds] 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 to denied.
34 CFR 106.41(b)(2) (Proposed)
Assuming the proposed rule is adopted, schools that receive federal funding will no longer be able to separate athletes into teams based on biological sex without carefully and correctly analyzing whether such separation is permitted under the new regulation. For example, it may be acceptable to have separate basketball teams for men and women; but only if the separation is “substantially related to the achievement of an important educational objective” and “minimizes the harm” to biological males who identify as females and wish to participate on the women’s (or formerly-women’s) basketball team.
The proposed rule, if it takes effect, will make nearly impossible for a public school district (or a private school that receives federal funds) to segregate sports teams by biological sex without incurring potential liability or, at a minimum, substantial litigation risk. On the other hand, a school district that fielded only one team (e.g., basketball, volleyball, swimming, track, cheer, etc.) and invited all students to participate, regardless of biological sex or gender identity, would be in the clear as far as liability or litigation risk under Title IX. Even though, in practice, a single team might make it extremely difficult for male or female students to successfully compete. Arguably, the opposite of what Congress intended when it enacted Title IX in 1972.
Covered schools (i.e., those who receive federal funds) that wish to continue segregating sports teams based on biological sex will be required, under the proposed rule, to consider each sport offered at each grade or educational level and, if challenged, be in a position to carry the burden of proving that biological sex segregation is “substantially related to the achievement of an important education objective” and “minimizes harms to students whose opportunity to participate on the opposite-sex or opposite-identity team is limited to denied.” Those with litigation experience might well conclude it may be a challenge to predict how the DOE (depending on the administration) or a court (depending on judicial philosophy) will apply this two-part standard studded, as it is, with imprecise words such as “substantial,” “important,” and “minimal.”