The Department of Education issued a notice of proposed rulemaking to address school policies regarding the eligibility of transgender students to participate on athletic teams consistent with their gender identity. 

The proposed rules would establish a new test for evaluating school policies that establish eligibility criteria for transgender athletes. Under the new test, educational institutions would be permitted to bar such students from participating on teams that match their gender identity under limited circumstances, but categorical bans would violate the regulations.

Specifically, the new test would require that school policies that would limit or deny a student’s eligibility to participate on a sex-segregated team consistent with their gender identity must:

• Be designed for each sport, level of competition, and grade or education level;
• Be substantially related to the achievement of an important educational objective; and 
• Minimize harms to trans students whose athletic opportunities would be limited or denied.  

In the preamble to the proposed rules, the Department noted that factors such as fairness in competition or prevention of sports-related injuries may provide a rationale that would pass muster under the new test. However, the agency stated that policies that single out transgender students for disapproval or harm would violate the proposed regulations. 

The proposed rules on transgender athletes are separate from the general regulations on Title IX sex discrimination that the Department is expected to issue as early as next month. When those regulations were announced last year, the Department declined to address how Title IX should be applied in the context of athletics, stating that the agency would instead engage in a separate rulemaking on criteria regarding transgender student’s eligibility to participate on sex-segregated athletic teams, as it did this week.