On April 6, 2023, the U.S. Department of Education released a Notice of Proposed Rulemaking (“NPRM”) regarding eligibility and participation for transgender students in scholastic athletic programs.  The proposed rule would prohibit school districts from categorically preventing transgender students from participating on sports teams consistent with their gender identities.

Instead, the proposed rule provides school districts a flexible framework to develop eligibility criteria based upon various factors such as sport and age level.  The text of the proposed rule, in its entirety, is as follows:

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.

In a Fact Sheet accompanying the NPRM, the Department of Education indicates that the proposed rule recognizes that differences in grade and education level, level of competition, and type of sport.  For example, the Fact Sheet suggests that teams for younger age groups should permit increased participation for transgender students consistent with their gender identities.  Additionally, teams with lower levels of competition, such as “no-cut” or junior varsity squads, should allow increased participation as well.  However, teams for older age groups or more advanced levels of competition may justifiably exclude transgender students without discriminating in violation of Title IX.

The proposed rule comes at the federal level while House Bill 6, otherwise known as the “Save Women's Sports Act,” remains pending before the Ohio Legislature.  If enacted, H.B. 6 would prevent school districts and interscholastic athletic associations from allowing “biological males” to participate on female sports teams – precisely the type of categorical ban prohibited by the Department's proposed rule.  Should both the proposed rule and H.B. 6 succeed, school districts will be faced with an impossible task to remain in compliance with both.

It is highly encouraged that districts considering implementing policies to address athletic participation by transgender athletes consult legal counsel, especially while the proposed rule undergoes the formal rulemaking process.  PKM attorneys continue to monitor the situation as it develops and will release further updates as appropriate.