Department of Education & Supreme Court Weigh in on Transgender Athletes in School Sports

Types : Alerts

On April 6, 2023, the United States Supreme Court rejected West Virginia’s request to enforce, pending appeal, the state’s newly issued law prohibiting transgender student athletes from competing in public high school and collegiate athletics.

As if on cue, the Department of Education (“DOE”) just a few hours later released its long-awaited proposed rule change to Title IX on the issue of transgender athletes’ participation in sports. The announcement, which was reportedly under deliberation by the Biden Administration for more than two years, comes at a time when state legislatures across the country debate whether to enact laws banning transgender student-athletes from participating in youth and amateur athletics.

To date, sixteen (16) states have laws on the books prohibiting transgender participation in athletics at least at the high school level. Three (3) other states have had such laws temporarily blocked by local courts. And just a day earlier, on April 5, 2023, the Kansas state legislature overrode the third veto of Governor Laura Kelly against a bill which targeted transgender female athletes from competing at the youth and collegiate level.

The DOE’s proposed rule—applicable to all public K-12 schools and colleges/universities and other schools receiving federal funding—would prohibit schools from categorically banning transgender student-athletes from competing against their identified gender. The rule would not, however, prohibit schools from banning transgender athletes altogether, instead requiring schools to implement a “sex-related eligibility criteria” and, effectively, decide on a case-by-case or sport-by-sport basis when transgender students would be barred from competing against the gender with which they identify.

The DOE specified in its announcement that a school’s eligibility criteria would have to consider a host of factors before issuing any ban, including the type of sport, level of competition, and age of the student-athletes. Any ban affecting a student athlete’s eligibility based upon sex must also (1) be substantially related to the achievement of an important educational objective and (2) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

The DOE noted that “important educational objectives” may include the prevention of sports-related injury and fairness in competition in some sports and education levels. The DOE clarified that, in practice, the interest in fairness would apply more so to older grade levels, particularly at the high school and/or collegiate sports level, due to the increased intensity of competition and focus on winning. The interest in competition, according to the DOE, becomes less of a priority in younger grades, where the scale tips in favor of teaching the sport and developing intangible qualities, such as teamwork. If the proposed rule were to go into effect, schools seeking to ban transgender athletes from competing against their identified gender would thus likely have a greater likelihood of success—if met by a Title IX challenge—if the ban is narrowly tailored to the high school and collegiate level.

Equally important is the second prong of the test, which instructs schools to “minimize harms” to potentially affected students. The DOE did not articulate this rule as thoroughly as it did for the “important educational objective” prong, but it did caution schools that it should be careful in enforcing its policy as to not subject the affected students to an “invasion of privacy or disclosure of confidential information.” The DOE further instructed that if the school can enforce its sex-based criteria in an alternative way that causes “less harm” to the student while achieving its educational objective, it must adopt the alternative plan or risk violating federal law.

In anticipation of the proposed rule going into effect, schools should develop a criterion which articulates the school’s position on sex-based eligibility as to each sport and corresponding grade level. Any eligibility policy should explain both the “important educational objective” it is seeking to achieve and the methodology it employs to enforce the policy in a manner that causes the least amount of harm to impacted student-athletes.

This alert was authored by Ashley Lynam, Kacie Kergides, and Patrick Smith.