[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Proposed Rules]
[Pages 22860-22891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07601]



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Vol. 88

Thursday,

No. 71

April 13, 2023

Part V





Department of Education





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34 CFR Part 106





Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance: Sex-Related 
Eligibility Criteria for Male and Female Athletic Teams; Proposed Rule

  Federal Register / Vol. 88, No. 71 / Thursday, April 13, 2023 / 
Proposed Rules  

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DEPARTMENT OF EDUCATION

34 CFR Part 106

[Docket ID ED-2022-OCR-0143]
RIN 1870-AA19


Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance: Sex-Related 
Eligibility Criteria for Male and Female Athletic Teams

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The U.S. Department of Education (Department) proposes to 
amend its regulations implementing Title IX of the Education Amendments 
of 1972 (Title IX) to set out a standard that would govern a 
recipient's adoption or application of sex-related criteria that would 
limit or deny a student's eligibility to participate on a male or 
female athletic team consistent with their gender identity. The 
proposed regulation would clarify Title IX's application to such sex-
related criteria and the obligation of schools and other recipients of 
Federal financial assistance from the Department (referred to below as 
``recipients'' or ``schools'') that adopt or apply such criteria to do 
so consistent with Title IX's nondiscrimination mandate.

DATES: Comments must be received on or before May 15, 2023.

ADDRESSES: Comments must be submitted via the Federal eRulemaking 
Portal at https://www.regulations.gov. However, if you require an 
accommodation or cannot otherwise submit your comments via https://www.regulations.gov, please contact the program contact person listed 
under FOR FURTHER INFORMATION CONTACT. Comments that are not submitted 
via https://www.regulations.gov will not be accepted absent such a 
request. The Department will not accept comments submitted after the 
comment period closes. To ensure that the Department does not receive 
duplicate copies, please submit your comments only once. Additionally, 
please include the Docket ID at the top of your comments.
    Federal eRulemaking Portal: Please go to https://www.regulations.gov to submit your comments electronically. Information 
on using https://www.regulations.gov, including instructions for 
finding a rule on the site and submitting comments, is available on the 
site under ``FAQ.''
    Note: The Department's policy is generally to make comments 
received from members of the public available for public viewing on the 
Federal eRulemaking Portal at https://www.regulations.gov. Therefore, 
commenters should include in their comments only information about 
themselves that they wish to make publicly available. Commenters should 
not include in their comments any information that identifies other 
individuals or that permits readers to identify other individuals. If, 
for example, your comment describes an experience of someone other than 
yourself, please do not identify that individual or include information 
that would allow readers to identify that individual. The Department 
reserves the right to redact at any time any information in comments 
that identifies other individuals, includes information that would 
allow readers to identify other individuals, or includes threats of 
harm to another person.

FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of 
Education, 400 Maryland Ave. SW, PCP-6125, Washington, DC 20202. 
Telephone: 202-245-7705. You may also email your questions to 
[email protected], but as described above, comments must be 
submitted via the Federal eRulemaking Portal at https://www.regulations.gov.
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION: 

Executive Summary

The Department's July 2022 Proposed Rulemaking

    On July 12, 2022, the Department published in the Federal Register 
a notice of proposed rulemaking to amend its regulations implementing 
Title IX (July 2022 NPRM). 87 FR 41390 (July 12, 2022), https://www.federalregister.gov/documents/2022/07/12/2022-13734/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal. In the July 2022 NPRM, the Department 
announced plans to issue a separate notice of proposed rulemaking to 
address whether and how the Department should amend its Title IX 
regulations to clarify what criteria, if any, a recipient of Federal 
funding \1\ should be permitted to use to establish students' 
eligibility to participate on a particular male or female athletic 
team. 87 FR 41537. This notice of proposed rulemaking, referred to 
below as the Athletics NPRM, addresses that issue. The comment period 
for the July 2022 NPRM closed on September 12, 2022.
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    \1\ The text of Title IX states that the statute applies to 
``any education program or activity receiving Federal financial 
assistance.'' 20 U.S.C. 1681(a). The definition of the term 
``Federal financial assistance'' under the Department's Title IX 
regulations is not limited to monetary assistance, but encompasses 
various types of in-kind assistance, such as a grant or loan of real 
or personal property, or provision of the services of Federal 
personnel. See 34 CFR 106.2(g)(2) and (3). Throughout this preamble, 
terms such as ``Federal funding,'' ``Federal funds,'' and 
``federally funded'' are used to refer to ``Federal financial 
assistance,'' and are not meant to limit application of the statute 
or its implementing regulations to recipients of certain types of 
Federal financial assistance.
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Purpose of This Regulatory Action

    The purpose of this regulatory action, the Athletics NPRM, is to 
propose a regulatory standard under Title IX that would govern a 
recipient's adoption or application of sex-related criteria that would 
limit or deny a student's eligibility to participate on a male or 
female athletic team consistent with their gender identity (referred to 
below as ``sex-related criteria'' or ``sex-related eligibility 
criteria''). The proposed regulation also would provide needed clarity, 
in response to questions from stakeholders, on how recipients can 
ensure that students have equal opportunity to participate on male and 
female athletic teams as required by Title IX.
    In particular, the Department proposes amending Sec.  106.41(b) of 
its Title IX regulations to provide that, 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 athletic team consistent 
with their gender identity, those 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. As discussed below, the proposed regulation would 
not prohibit a recipient's use of sex-related criteria altogether. 
Instead, the proposed regulation would require that a recipient meet 
this standard for any sex-related criteria that would limit or deny 
students' eligibility to participate on a male or female team 
consistent with their gender identity. The Department recognizes that 
prevention of sports-related injury is an important educational 
objective in recipients' athletic programs and that--as courts have 
long recognized in cases involving

[[Page 22861]]

sex-separate athletic teams--fairness in competition may be 
particularly important for recipients in some sports, grade and 
education levels, and levels of competition. The Department anticipates 
that some uses of sex-related eligibility criteria would satisfy the 
standard in the proposed regulation in some sports, grade and education 
levels, and levels of competition.
    The Department makes this proposal based on an extensive review of 
its regulations implementing Title IX, as well as the statute's text 
and legislative history; Federal and State case law; relevant State 
laws and the policies of schools and athletic associations; live and 
written comments received during a nationwide virtual public hearing on 
Title IX held in June 2021; and other information provided by 
stakeholders. Executive Order on Regulatory Planning and Review, Exec. 
Order No. 12866, 58 FR 51735 (Oct. 4, 1993), https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf.

Costs and Benefits

    As further detailed below in the Regulatory Impact Analysis, the 
Department estimates that the total monetary cost to recipients of the 
proposed regulation over 10 years would be in the range of $23.4 
million to $24.4 million, assuming a seven percent and three percent 
discount rate, respectively. Because of the lack of available 
quantitative data, the Department cannot fully quantify the economic 
impact of the proposed regulation. The Department believes that the 
benefits associated with the proposed regulation--providing a standard 
to clarify Title IX obligations for recipients that adopt or apply sex-
related eligibility criteria and protecting students' equal opportunity 
to participate on male and female teams consistent with Title IX--far 
outweigh the costs.
    In particular, the Department believes the proposed regulation 
would offer greater clarity regarding how a recipient can comply with 
its nondiscrimination obligation under Title IX if the recipient offers 
an athletic program and adopts or applies sex-related criteria that 
would limit or deny a student's eligibility to participate on a male or 
female athletic team consistent with their gender identity. The 
Department recognizes that there is a valuable, even if not readily 
quantifiable, benefit of increasing students' equal opportunity to 
participate consistent with their gender identity under sex-related 
eligibility criteria that meet the proposed regulation's requirements, 
which some recipients' current eligibility criteria may not provide. 
The Department also recognizes that, without the proposed regulation's 
requirements for a recipient's sex-related eligibility criteria, some 
students may suffer harm as a result of being unable to gain the 
benefits associated with equal opportunity to participate on athletic 
teams at school.
    Participation in team sports has been associated with many valuable 
physical, emotional, academic, and interpersonal benefits for students, 
and athletic participation has the potential to help students develop 
skills that benefit them in school and throughout life, including 
teamwork, discipline, resilience, leadership, confidence, social 
skills, and physical fitness. See, e.g., Scott L. Zuckerman et al., The 
Behavioral, Psychological, and Social Impacts of Team Sports: A 
Systematic Review and Meta-analysis, 49 Physician & Sports Med. 246 
(2021); Ryan D. Burns et al., Sports Participation Correlates with 
Academic Achievement: Results From a Large Adolescent Sample Within the 
2017 U.S. National Youth Risk Behavior Survey, 127 Perceptual & Motor 
Skills 448 (2020); President's Council on Sports, Fitness & Nutrition 
Sci. Bd., Benefits of Youth Sports (Sept. 17, 2020), https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf; Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 
916 (7th Cir. 2012) (noting that ``[s]tudies have shown that sports 
participation provides important lifetime benefits to participants'' 
(quoting Dionne L. Koller, Not Just One of the Boys: A Post-Feminist 
Critique of Title IX's Vision for Gender Equity in Sports, 43 Conn. L. 
Rev. 401, 413 (2010))).
    The Department also recognizes that a recipient could incur some 
costs in complying with the proposed regulation if it adopts or applies 
certain sex-related eligibility criteria for participation on male or 
female athletic teams. The Department acknowledges that past agency 
statements on Title IX's coverage of discrimination based on gender 
identity have varied, and the proposed regulation would shift away from 
some of those statements. The Department believes that any costs 
associated with an individual recipient's compliance would be minimal 
if the proposed regulation is made final. For example, the proposed 
regulation may require updating of existing policies or training 
materials, but the Department does not expect that the proposed 
regulation would require other types of expenditures.
    Invitation to Comment: The Department invites you to submit 
comments regarding the proposed regulation. To ensure that your 
comments have the maximum effect on developing the final regulation, 
you should identify clearly the specific part of the proposed 
regulation or directed question that each of your comments addresses.
    The Department also invites you to assist us in complying with the 
specific requirements of Executive Orders 12866 and 13563 (explained 
further below) and their overall goal of reducing the regulatory burden 
that might result from the proposed regulation. Please let the 
Department know of any further ways it may reduce potential costs or 
increase potential benefits, while preserving the effective and 
efficient administration of the Department's programs and activities. 
The Department also welcomes comments on any alternative approaches to 
the subjects addressed by the proposed regulation.
    During and after the comment period, you may inspect public 
comments about the proposed regulation by accessing Regulations.gov. 
You may also inspect the comments in person. Please contact the person 
listed under FOR FURTHER INFORMATION CONTACT to make arrangements to 
inspect the comments in person.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: Upon request, the Department will provide an 
appropriate accommodation or auxiliary aid to an individual with a 
disability who needs assistance to review the comments or other 
documents in the public rulemaking record for the proposed regulation. 
To schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

Background

    The mission of the Department's Office for Civil Rights (OCR) is to 
ensure equal access to education and to promote educational excellence 
through vigorous enforcement of civil rights in our Nation's schools. 
One of the Federal civil rights laws that OCR enforces is Title IX, 
which prohibits discrimination on the basis of sex under education 
programs or activities that receive Federal financial assistance. 20 
U.S.C. 1681-1688. Athletic programs have long been recognized by 
Congress, the Department, and Federal courts as an integral part of a 
recipient's education program or activity subject to Title IX. See, 
e.g., Education Amendments of 1974, Public Law 93-380, section 844, 88 
Stat. 484, 612 (Javits Amendment); see also U.S. Dep't of Health, 
Educ., and

[[Page 22862]]

Welfare, Final Rule: Nondiscrimination on the Basis of Sex in Education 
Programs and Activities Receiving or Benefiting from Federal Financial 
Assistance, 40 FR 24128, 24134 (June 4, 1975) (citing cases); U.S. 
Dep't of Health, Educ., and Welfare, Office for Civil Rights, A Policy 
Interpretation: Title IX and Intercollegiate Athletics, 44 FR 71413 
(Dec. 11, 1979) (1979 Policy Interpretation), https://www.govinfo.gov/content/pkg/FR-1979-12-11/pdf/FR-1979-12-11.pdf (also available at 
https://www.ed.gov/ocr/docs/t9interp.html); N. Haven Bd. of Educ. v. 
Bell, 456 U.S. 512, 516, 531-32, 532 n.22 (1982) (noting the broad 
sweep of Title IX; that the original Title IX regulations, reviewed by 
Congress, covered athletics; and that a Senate resolution disapproving 
the regulations' application to athletics was introduced but not 
``acted upon'').
    In June 2020, the Supreme Court issued its decision in Bostock v. 
Clayton County, 140 S. Ct. 1731 (2020), holding that discrimination 
based on sexual orientation or gender identity is sex discrimination 
under Title VII of the Civil Rights Act of 1964. In January 2021, 
President Joseph R. Biden, Jr. issued Executive Order 13988 on 
Preventing and Combating Discrimination on the Basis of Gender Identity 
or Sexual Orientation, which set out this Administration's policy ``to 
prevent and combat discrimination on the basis of gender identity or 
sexual orientation, and to fully enforce Title VII [of the Civil Rights 
Act of 1964] and other laws that prohibit discrimination on the basis 
of gender identity or sexual orientation.'' Executive Order on 
Preventing and Combating Discrimination on the Basis of Gender Identity 
or Sexual Orientation, Exec. Order No. 13988, 86 FR 7023 (Jan. 25, 
2021), https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf. Executive Order 13988 directed the Secretary of Education, 
in consultation with the Attorney General, to ``review all existing 
orders, regulations, guidance documents, policies, programs, or other 
agency actions'' promulgated under any statute or regulation that 
prohibits sex discrimination for their consistency with the stated 
policy. Id.
    The President subsequently issued Executive Order 14021 to ensure 
``that all students [are] guaranteed an educational environment free 
from discrimination on the basis of sex, including discrimination in 
the form of sexual harassment, which encompasses sexual violence, and 
including discrimination on the basis of sexual orientation or gender 
identity.'' Executive Order on Guaranteeing an Educational Environment 
Free from Discrimination on the Basis of Sex, Including Sexual 
Orientation or Gender Identity, Exec. Order No. 14021, 86 FR 13803 
(Mar. 11, 2021), https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf. This Executive Order, like Executive Order 13988, 
directed the Secretary of Education, in consultation with the Attorney 
General, to review all existing regulations, orders, guidance 
documents, policies and any other similar agency actions for 
consistency with Title IX, other governing laws, and the stated policy.
    As these Executive Orders directed, the Department extensively 
reviewed its Title IX regulations and policy documents for consistency 
with Title IX's statutory prohibition on sex discrimination in 
federally funded education programs or activities. Based on this review 
and consideration of, among other things, substantial input from 
stakeholders, the Department published the July 2022 NPRM to amend its 
regulations implementing Title IX. 87 FR 41390.
    In the course of its review, the Department also received feedback 
that the current regulations do not explicitly address the criteria, if 
any, a recipient may use to determine a student's eligibility to 
participate on a male or female athletic team consistent with Title IX 
and the Department's regulations. Based on this review and 
consideration of substantial input from stakeholders, the Department 
proposes amending its current regulations to address the unique 
circumstances of male and female athletic teams consistent with Title 
IX's prohibition on discrimination on the basis of sex. In particular, 
this Athletics NPRM proposes amending the Department's Title IX 
regulations to set out a standard that would govern a recipient's 
adoption or application of sex-related criteria that would limit or 
deny a student's eligibility to participate on male or female athletic 
teams consistent with their gender identity.

History of Title IX's Application to Athletic Programs

    Enacted in 1972, Title IX provides that ``[n]o person in the United 
States shall, on the basis of sex, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination under any 
education program or activity receiving Federal financial assistance.'' 
20 U.S.C. 1681(a). Title IX includes several statutory exemptions and 
exceptions from its coverage, including for the membership practices of 
certain organizations, admissions to private undergraduate colleges, 
educational institutions that train individuals for the military 
services or merchant marine, and educational institutions that are 
controlled by a religious organization to the extent that application 
of Title IX would be inconsistent with the religious tenets of the 
controlling organization. 20 U.S.C. 1681(a)(1)-(9). Title IX authorizes 
and directs the Department, as well as other agencies, ``to effectuate 
the provisions of section 1681 of this title with respect to such 
program or activity by issuing rules, regulations, or orders of general 
applicability which shall be consistent with achievement of the 
objectives of the statute authorizing the financial assistance in 
connection with which the action is taken.'' 20 U.S.C. 1682.
    In 1974, Congress enacted the Javits Amendment in response to 
concerns that Title IX would disrupt existing practices in 
intercollegiate athletics. It read:

    The [Department of Health, Education, and Welfare (HEW)] 
Secretary shall prepare and publish, not later than 30 days after 
the date of enactment of this Act, proposed regulations implementing 
the provisions of title IX of the Education Amendments of 1972 
relating to the prohibition of sex discrimination in federally 
assisted education programs which shall include with respect to 
intercollegiate athletic activities reasonable provisions 
considering the nature of particular sports.

Education Amendments of 1974 section 844; see also S. Rep. No. 93-1026 
(1974) (Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 4206, 4271.
    In 1975, HEW, the Department's predecessor, first promulgated 
regulations under Title IX \2\ after multiple congressional hearings. 
121 Cong. Rec. 20467 (1975) (statement of Sen. Birch Bayh). The 
regulations were subject to a statutory ``laying before'' provision, 
designed to afford Congress an opportunity to examine the proposed 
regulations and disapprove them by resolution within 45 days if 
Congress deemed them to be inconsistent with Title IX. N. Haven Bd. of 
Educ., 456 U.S. at 531-32. The Supreme Court has stated that the fact 
that no such disapproval resolution was adopted

[[Page 22863]]

``strongly implies that the [Title IX] regulations accurately reflect 
congressional intent.'' Grove City Coll. v. Bell, 465 U.S. 555, 568 
(1984); \3\ see also N. Haven Bd. of Educ., 456 U.S. at 533-35.
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    \2\ 45 CFR part 86 (1975). In 1980, Congress created the U.S. 
Department of Education. Public Law 96-88, section 201, 93 Stat. 
669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 5, 1980). 
By operation of law, all of HEW's determinations, rules, and 
regulations continued in effect, and all functions of HEW's Office 
for Civil Rights with respect to educational programs were 
transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The 
regulations implementing Title IX were recodified without 
substantive change in 34 CFR part 106. See 45 FR 30802, 30955-65 
(May 9, 1980).
    \3\ The Supreme Court in NCAA v. Smith subsequently described 
Grove City College as holding ``that Title IX, as originally 
enacted, covered only the specific program receiving federal 
funding.'' 525 U.S. 459, 466 n.4 (1999) (citing Grove City Coll., 
465 U.S. at 570-74). That part of the Court's holding was superseded 
by the Civil Rights Restoration Act (CRRA), in which Congress 
``correct[ed] what it considered to be an unacceptable'' 
interpretation by the Supreme Court of the scope of Title IX. Id. 
(quoting Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 73 
(1992)). The CRRA codifies Congress's interpretation of the terms 
``program or activity'' and ``program'' as encompassing ``all of the 
operations of * * * . . . (2)(A) a college, university, or other 
postsecondary institution . . . * * * or (B) a local education 
agency . . . * * * or other school system . . .* * * any part of 
which is extended Federal financial assistance.'' 20 U.S.C. 1687.
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    Since 1975, the Department's regulations have specified that 
separate or differential treatment on the basis of sex is presumptively 
a form of prohibited sex discrimination. See, e.g., 34 CFR 
106.31(b)(4), (7) (``Except as provided for in this subpart, in 
providing any aid, benefit, or service to a student, a recipient shall 
not, on the basis of sex . . . [s]ubject any person to separate or 
different rules of behavior, sanctions, or other treatment; . . . [or] 
[o]therwise limit any person in the enjoyment of any right, privilege, 
advantage, or opportunity.''); see also id. at 106.34(a) (``Except as 
provided for in this section or otherwise in this part, a recipient 
shall not provide or otherwise carry out any of its education programs 
or activities separately on the basis of sex.''). These regulations 
reflect the understanding that subjecting students to differential 
treatment on the basis of sex in the education context is presumptively 
harmful and cannot be justified by reliance on ``overbroad 
generalizations about the different talents, capacities, or preferences 
of males and females.'' United States v. Virginia, 518 U.S. 515, 533 
(1996).
    Despite the general principle reflected in the Department's 
regulations that differential treatment or separation based on sex 
presumptively results in prohibited sex discrimination, Congress 
indicated in the Javits Amendment that a different approach to 
athletics was appropriate and that the Title IX regulations should 
include ``reasonable'' provisions governing intercollegiate athletic 
activities in light of ``the nature of particular sports.'' Education 
Amendments of 1974 section 844. HEW responded to this congressional 
direction by promulgating a regulation permitting sex separation in 
certain circumstances in ``any interscholastic, intercollegiate, club 
or intramural athletics offered by a recipient.'' 45 CFR 86.41 (1975) 
(currently codified at 34 CFR 106.41). As noted above, Congress had the 
opportunity to examine and disapprove HEW's regulations, including this 
athletics provision. Congress did not disapprove them, and the Title IX 
regulations took effect on July 21, 1975.
    The now-longstanding athletics regulation states that ``[n]o person 
shall, on the basis of sex, be excluded from participation in, be 
denied the benefits of, be treated differently from another person or 
otherwise be discriminated against in any interscholastic, 
intercollegiate, club or intramural athletics offered by a recipient, 
and no recipient shall provide any such athletics separately on such 
basis.'' 34 CFR 106.41(a). The regulation then provides that when 
selection for an athletic team is based upon competitive skill or the 
activity involved is a contact sport, a recipient may offer sex-
separate teams (though it is not required to do so). 34 CFR 106.41(b) 
(``[A] recipient may operate or sponsor separate teams for members of 
each sex where selection for such teams is based upon competitive skill 
or the activity involved is a contact sport.''). The regulation 
contemplates that in some circumstances, female students may try out 
for a male team, or vice versa: ``[W]here a recipient operates or 
sponsors a team in a particular sport for members of one sex but 
operates or sponsors no such team for members of the other sex, and 
athletic opportunities for members of that sex have previously been 
limited, members of the excluded sex must be allowed to try-out for the 
team offered unless the sport involved is a contact sport.'' Id. The 
regulation thus recognizes that in some instances individual students 
may be denied the opportunity to participate on a particular team on 
the basis of sex.
    Importantly, the regulation goes on to say that a recipient must 
still provide equal opportunity in its athletic program as a whole. 34 
CFR 106.41(c). Thus, a recipient that excludes a boy from the girls' 
golf team and does not offer a boys' golf team, for example, would have 
to provide equal opportunity based on sex across the totality of its 
athletic program, and disparities in overall participation 
opportunities in that program, including on male and female teams, 
could violate Sec.  106.41(c), depending on the facts at issue. As one 
court explained, ``the provisions of title IX grant flexibility to the 
recipient of federal funds to organize its athletic program as it 
wishes, so long as the goal of equal athletic opportunity is met.'' 
Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 171 (3d Cir. 1993) 
(citation omitted); see also U.S. Dep't of Health, Educ., and Welfare, 
Office for Civil Rights, Sex Discrimination in Athletic Programs, 40 FR 
52655, 52656 (Nov. 11, 1975) (explaining that ``an institution would 
not be effectively accommodating the interests and abilities of women 
if it abolished all its women's teams and opened up its men's teams to 
women, but only a few women were able to qualify for the men's team'').
    Although the Department's Title IX regulations have never 
explicitly addressed the criteria, if any, a recipient may use to 
determine a student's eligibility to participate on a male or female 
athletic team, OCR has previously articulated various interpretations 
of current Sec.  106.41(b) as applied to transgender students (i.e., 
students whose gender identity is different from the sex they were 
assigned at birth). In May 2016, OCR and the Civil Rights Division of 
the U.S. Department of Justice (DOJ) issued a joint Dear Colleague 
Letter stating that while a recipient may not ``adopt or adhere to 
requirements that rely on overly broad generalizations or stereotypes . 
. . or others' discomfort with transgender students[,] Title IX does 
not prohibit age-appropriate, tailored requirements based on sound, 
current, and research-based medical knowledge about the impact of the 
students' participation on the competitive fairness or physical safety 
of the sport.'' U.S. Dep't of Justice, Civil Rights Division, and U.S. 
Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on Title 
IX and Transgender Students at 3 (May 13, 2016) (rescinded in 2017) 
(2016 Dear Colleague Letter on Title IX and Transgender Students) 
(footnote omitted), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. In cases alleging gender 
identity discrimination in sex-separate programs and activities outside 
the context of athletic teams--e.g., denying students access to sex-
separate facilities consistent with their gender identity--several 
Federal courts have held that the Department's interpretation of 34 CFR 
106.33 of its Title IX regulations, as reflected in the 2016 Dear 
Colleague Letter on Title IX and Transgender Students, was reasonable. 
See, e.g., G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 
709, 723 (4th Cir. 2016) (according controlling weight to the 
``Department's interpretation of its own regulation,

[[Page 22864]]

Sec.  106.33''), vacated and remanded, 137 S. Ct. 1239, 197 L. Ed. 2d 
460 (2017); Bd. of Educ. of the Highland Loc. Sch. Dist. v. U.S. Dep't 
of Educ., 208 F. Supp. 3d 850, 870 (S.D. Ohio 2016) (same); Whitaker v. 
Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., No. 16-CV-943-PP, 2016 
WL 5239829, at *3 (E.D. Wis. Sept. 22, 2016) (same), aff'd sub nom. 
Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 
858 F.3d 1034 (7th Cir. 2017), abrogated on other grounds as recognized 
by Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 
2020).
    In August 2016, however, a Federal district court issued an opinion 
finding that the interpretation set out in the 2016 Dear Colleague 
Letter on Title IX and Transgender Students did not undergo the notice-
and-comment process required by the Administrative Procedure Act and 
was contrary to law. The district court granted a preliminary 
injunction barring the Departments of Education and Justice from 
relying on the 2016 Dear Colleague Letter on Title IX and Transgender 
Students in their enforcement of Title IX with respect to access to 
certain sex-separate facilities. Texas v. United States, 201 F. Supp. 
3d 810, 836 (N.D. Tex. 2016); see also Texas v. United States, No. 
7:16-CV-00054-O, 2016 WL 7852331, at *4 (N.D. Tex. Oct. 18, 2016) 
(clarifying that the preliminary injunction is ``limited to the issue 
of access to intimate facilities''). In February 2017, DOJ's Civil 
Rights Division and OCR issued a letter withdrawing the statements of 
policy and guidance reflected in the 2016 Dear Colleague Letter on 
Title IX and Transgender Students, stating that they made this change 
``in order to further and more completely consider the legal issues 
involved.'' U.S. Dep't of Justice, Civil Rights Division, and U.S. 
Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on 
Transgender Students at 1 (Feb. 22, 2017) (under review in light of 
Exec. Order No. 13988), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf. On March 3, 2017, the Federal 
district court dissolved the preliminary injunction when the plaintiffs 
voluntarily dismissed the lawsuit. Plaintiff's Notice of Voluntary 
Dismissal, Texas v. United States, No. 7:16-cv-00054 (N.D. Tex. Mar. 3, 
2017), ECF No. 128.
    In the months immediately following the Supreme Court's June 2020 
decision in Bostock, 140 S. Ct. 1731, OCR made several statements on 
Bostock's application to Title IX. For instance, on August 31, 2020, 
OCR issued a revised Letter of Impending Enforcement Action in its 
investigation of the Connecticut Interscholastic Athletic Conference 
(CIAC) and six school districts. OCR Case No. 01-19-4025, Conn. 
Interscholastic Athletic Conf. et al. (Aug. 31, 2020) (revised letter 
of impending enforcement action) (archived and marked not for reliance 
in February 2021) (Revised CIAC Letter), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a2.pdf. The letter 
stated that OCR was providing an update in light of Bostock and took 
the position that when a recipient provides ``separate teams for 
members of each sex'' under 34 C.F.R. Sec. 106.41(b), ``the recipient 
must separate those teams on the basis of biological sex'' and not on 
the basis of gender identity. Revised CIAC Letter at 36. The letter 
departed from OCR's typical practice concerning enforcement letters by 
stating that it ``constitutes a formal statement of OCR's 
interpretation of Title IX and its implementing regulations and should 
be relied upon, cited, and construed as such.'' Id. at 49.
    In January 2021, the Department posted a memorandum from its 
General Counsel's office commenting on Bostock's application to Title 
IX. U.S. Dep't of Educ., Memorandum from Principal Deputy General 
Counsel delegated the authority and duties of the General Counsel Reed 
D. Rubinstein to Kimberly M. Richey, Acting Assistant Secretary of the 
Office for Civil Rights re Bostock v. Clayton Cnty. (Jan. 8, 2021) 
(archived and marked not for reliance in March 2021) (Rubinstein 
Memorandum), https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf. The Rubinstein Memorandum stated 
that ``if a recipient chooses to provide `separate teams for members of 
each sex' under 34 C.F.R Sec.  106.41(b), 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.''
    In February 2021, OCR withdrew the Revised CIAC Letter, citing its 
inconsistency with Executive Order 13988 (describing Bostock) and the 
fact that it was issued without following the appropriate procedures 
required for issuing guidance.\4\ Similarly, in March 2021, the 
Department archived the Rubinstein Memorandum and marked it ``not for 
reliance,'' citing its inconsistency with Executive Order 13988 and the 
fact that it was issued without the review required under the then-
applicable Department's Rulemaking and Guidance Procedures, 85 FR 62597 
(Oct. 5, 2020) (rescinded effective September 29, 2021).
---------------------------------------------------------------------------

    \4\ OCR Case No. 01-19-4025, Conn. Interscholastic Athletic 
Conf. et al. (Feb. 23, 2021) (letter withdrawing Revised CIAC 
Letter), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a5.pdf. In December 2022, in related 
Federal court litigation over CIAC's athletic eligibility policy, a 
panel of the U.S. Court of Appeals for the Second Circuit noted that 
the policy--which permits high school students to participate on 
male and female athletic teams consistent with their gender 
identity--could not be said to fall ``within the scope of Title IX's 
proscriptions.'' Soule by Stanescu v. Conn. Ass'n of Schs., 57 F.4th 
43, 55 (2d Cir. 2022). Subsequently, the Second Circuit vacated the 
panel's opinion pending rehearing en banc. See Soule by Stanescu v. 
Conn. Ass'n of Schs., No. 21-1365 (2d Cir. Feb. 13, 2023).
---------------------------------------------------------------------------

    In June 2021, the Departments of Justice and Education filed a 
Statement of Interest in a Title IX and equal protection challenge to a 
State law limiting students' eligibility to participate on female 
athletic teams consistent with their gender identity, emphasizing that 
``[a]t its core, Title IX is about ensuring equal educational 
opportunities to all students regardless of their sex.'' Statement of 
Interest of the United States at 12, B.P.J. v. W. Va. State Bd. of 
Educ., 550 F. Supp. 3d 347 (S.D. W. Va. 2021) (No. 2:21-cv-00316), 
https://www.justice.gov/crt/case-document/file/1405541/download 
(supporting the Title IX and equal protection claims raised by a 
transgender girl in middle school challenging the application of a 
State law prohibiting her from participating on her school's girls' 
athletic teams).\5\ In April 2023, the Department of Justice filed a 
brief as amicus curiae in support of plaintiff-appellant B.P.J.'s 
appeal to the Fourth Circuit. See Brief for the United States as Amicus 
Curiae in Support of Plaintiff-Appellant and Urging Reversal, B.P.J. v. 
W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Apr.

[[Page 22865]]

3, 2023), https://www.justice.gov/crt/case-document/file/1577891/download.
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    \5\ The Federal district court initially granted a preliminary 
injunction barring implementation of the West Virginia law to 
exclude a transgender girl in middle school from participating on 
her school's girls' track and cross-country teams, B.P.J., 550 F. 
Supp. 3d at 357. On January 5, 2023, the court granted a motion for 
summary judgment upholding West Virginia's law, concluding that the 
law does not violate the Equal Protection Clause or Title IX, and 
dissolving the preliminary injunction. B.P.J. v. W. Va. State Bd. of 
Educ., No. 2:21-cv-00316, 2023 WL 111875, at *8-10 (S.D. W. Va. Jan. 
5, 2023), appeal docketed, No. 23-1078 (4th Cir. Jan. 24, 2023). On 
February 22, 2023, a panel of the Fourth Circuit granted B.P.J.'s 
Motion for Stay of the District Court's January 5, 2023, Order 
dissolving the preliminary injunction pending appeal. See B.P.J. v. 
W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Feb. 22, 2023). On 
March 9, 2023, the Defendants-Appellees submitted an application to 
the U.S. Supreme Court seeking to vacate the Fourth Circuit's 
injunction pending appeal. See Application to Vacate the Injunction 
Entered by the United States Court of Appeals for the Fourth 
Circuit, W. Va. State Bd. of Educ. v. B.P.J., No. 22A800 (U.S. Mar. 
9, 2023). The discussion below further addresses the district 
court's now-dissolved January 5, 2023, Order.
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    Separately, also in June 2021, in light of the Supreme Court's 
decision in Bostock, the Department issued a Notice of Interpretation 
to explain the Department's enforcement authority over discrimination 
based on sexual orientation and gender identity under Title IX. U.S. 
Dep't of Educ., Office for Civil Rights, Notice of Interpretation: 
Enforcement of Title IX with Respect to Discrimination Based on Sexual 
Orientation and Gender Identity in Light of Bostock v. Clayton County, 
86 FR 32637 (June 22, 2021) (2021 Bostock Notice of Interpretation), 
https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf.\6\ Against this backdrop and for reasons described in this 
preamble, the Secretary proposes to amend the Department's Title IX 
regulation in 34 CFR 106.41.
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    \6\ A Federal district court preliminarily enjoined and 
restrained the Department from implementing the 2021 Bostock Notice 
of Interpretation against 20 States. See Tennessee v. U.S. Dep't of 
Educ., No. 3:21-cv-308, 2022 WL 2791450, at *24 (E.D. Tenn. July 15, 
2022), appeal docketed, No. 22-5807 (6th Cir. Sept. 13, 2022). This 
Athletics NPRM is not based on the 2021 Bostock Notice of 
Interpretation.
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The Department's Review of Its Title IX Regulations
    On April 6, 2021, OCR issued a letter to students, educators, and 
other stakeholders that informed them about the steps the Department 
was taking to review its regulations, orders, guidance, policies, and 
other similar agency actions under Title IX. U.S. Dep't of Educ., 
Office for Civil Rights, Letter from Acting Assistant Secretary Suzanne 
B. Goldberg to Students, Educators, and other Stakeholders re Executive 
Order 14021 (Apr. 6, 2021), https://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf. As directed by Executive 
Order 14021, this comprehensive review included OCR's review of all 
agency actions to determine whether changes to the Department's Title 
IX regulations are necessary to fulfill Title IX's mandate and OCR's 
commitment to ensuring equal and nondiscriminatory access to education 
for students at all education levels, regardless of sex. See id. at 2.
    On May 20, 2021, OCR published a notice in the Federal Register 
announcing a nationwide virtual public hearing (referred to below as 
the ``June 2021 Title IX Public Hearing'') to gather information for 
the purpose of improving enforcement of Title IX. U.S. Dep't of Educ., 
Office for Civil Rights, Announcement of Public Hearing; Title IX of 
the Education Amendments of 1972, 86 FR 27429 (May 20, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf. OCR 
expressed particular interest in comments about discrimination based on 
gender identity in educational environments, as well as other topics. 
Id. The virtual hearing was held from June 7, 2021, to June 11, 2021, 
during which time OCR received live comments through the virtual 
hearing platform and written comments via email. Over 280 students, 
parents, teachers, faculty members, school staff, administrators, and 
other members of the public provided live comments, and OCR received 
over 30,000 written comments by email. The transcript of live comments 
is available at https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf, and the written comments may be 
viewed at https://www2.ed.gov/about/offices/list/ocr/public-hearing.html.
    In addition to soliciting live and written comments as part of the 
June 2021 Title IX Public Hearing, OCR also conducted listening 
sessions with stakeholders expressing a variety of views, including 
individuals and organizations focused on Title IX and athletics. Among 
these stakeholders were students, including current and former student-
athletes; parents; athletic associations; organizations representing 
elementary schools, secondary schools, and postsecondary institutions; 
organizations representing teachers, administrators, parents, and 
current and former student-athletes; attorneys representing students 
and schools; State officials; Title IX Coordinators and other school 
administrators; and individuals who provide Title IX training to 
schools.
    In the June 2021 Title IX Public Hearing, in listening sessions, 
and in correspondence, stakeholders posed questions and presented 
concerns regarding Title IX's application to determinations of whether 
a student is eligible to participate on a recipient's male or female 
athletic team, particularly in light of the shifting OCR guidance on 
this issue and the divergent approaches to such eligibility criteria 
taken by State laws and organizations that set eligibility rules for 
specific sports. Stakeholders highlighted the many benefits that 
students gain from participating on athletic teams, including learning 
skills that promote personal health, wellness, and leadership; being 
part of a team; and fostering social relationships.
    Some stakeholders asserted that allowing students to participate on 
male or female athletic teams that align with their gender identity is 
consistent with Title IX's guarantee of nondiscrimination on the basis 
of sex. In the same vein, some stakeholders stressed that preventing 
transgender students from participating on their schools' male or 
female athletic teams consistent with their gender identity deprives 
those students of the benefits of athletic team participation because 
it is not tenable to require a transgender girl or woman to participate 
on a male athletic team or a transgender boy or man to participate on a 
female athletic team. Some stakeholders expressed concern that some 
policies and State laws restricting athletic eligibility to a student's 
sex assigned at birth may also disqualify intersex students (generally, 
persons with variations in physical sex characteristics, including 
variations in anatomy, hormones, chromosomes or other traits that 
differ from expectations generally associated with male and female 
bodies) from participating on male or female teams consistent with 
their gender identity if the sex assigned to those students at birth 
does not accurately reflect their gender identity. Stakeholders also 
expressed concern that certain policies and State laws might preclude 
nonbinary students (generally, persons who do not identify as 
exclusively male or female) from participating on either male or female 
teams, including in contexts in which those students' school records or 
other official documents indicate a nonbinary gender marker and the 
school's eligibility criteria limit participation to students with a 
male or female gender marker. By contrast, other stakeholders expressed 
concerns that participation of some transgender girls and women on 
female athletic teams could deprive other girls and women of access to 
the benefits associated with participation on athletic teams. Many 
stakeholders representing a range of views urged the Department to 
clarify whether and, if so, how students can participate on male or 
female athletic teams that align with their gender identity while 
ensuring fair and safe sports participation for all.
    The Department's July 2022 NPRM proposed amendments to the 
Department's Title IX regulations would clarify, among other things, 
that Title IX prohibits discrimination based on gender identity and sex 
characteristics in federally funded education programs and activities. 
See 87 FR 41571. In addition, the proposed amendments would clarify 
that (a) in the limited circumstances in which Title IX or the 
Department's Title IX regulations permit different treatment or 
separation on the basis of sex, a recipient must not carry out such 
different treatment or

[[Page 22866]]

separation in a manner that discriminates on the basis of sex by 
subjecting a person to more than de minimis harm, unless otherwise 
permitted by Title IX or the Department's Title IX regulations; and (b) 
a policy or practice that prevents a person from participating in an 
education program or activity consistent with their gender identity 
subjects a person to more than de minimis harm on the basis of sex. Id. 
at 41534-37. The July 2022 NPRM also recognized that despite Title IX's 
general prohibition on sex discrimination against an individual, there 
are circumscribed situations, including with respect to sex-related 
eligibility criteria for male or female teams, in which Title IX or its 
regulations may permit a recipient to separate students on the basis of 
sex, even when doing so may cause some students more than de minimis 
harm. Id. at 41537. The July 2022 NPRM did not propose any changes to 
the Department's Title IX regulation governing athletics, however, 
instead reserving that issue for this Athletics NPRM. Id.
    The Department now proposes amending its Title IX regulations to 
help ensure implementation of Title IX in what Congress has recognized 
as the unique context of athletics. Cf. Education Amendments of 1974 
section 844 (specifying a requirement for ``reasonable provisions 
considering the nature of particular sports'' in the Department's Title 
IX regulations regarding intercollegiate athletics). The Department 
acknowledges the interest of some stakeholders in preserving current 
athletic-team policies and procedures regarding sex-related eligibility 
criteria and in avoiding potential additional costs to comply with the 
proposed regulation. However, the Department believes that the current 
regulations are not sufficiently clear to ensure Title IX's 
nondiscrimination requirement is fulfilled if a recipient adopts or 
applies sex-related criteria that would limit or deny students' 
eligibility to participate on male or female athletic teams consistent 
with their gender identity. This clarification regarding Title IX's 
application to sex-related eligibility criteria is particularly 
important as some States have adopted criteria that categorically limit 
transgender students' eligibility to participate on male or female 
athletic teams consistent with their gender identity. See, e.g., Ind. 
Code section 20-33-13-4 (2022) (``A male, based on a student's 
biological sex at birth in accordance with the student's genetics and 
reproductive biology, may not participate on an athletic team or sport 
designated under this section as being a female, women's, or girls' 
athletic team or sport.''); W. Va. Code section 18-2-25d(c)(1) (2021) 
(designating participation on interscholastic, intercollegiate, 
intramural, or club athletic teams sponsored by any public secondary 
school or state institution of higher education as based on 
``biological sex''); Idaho Code section 33-6203 (2020) (same). In so 
doing, these State laws have created additional uncertainty for 
stakeholders regarding what Title IX permits and requires with respect 
to male and female teams.
    The standard proposed in this Athletics NPRM is consistent with the 
framework in the current Sec.  106.41 for providing overall equal 
athletic opportunity regardless of sex for students who seek to 
participate in a recipient's athletic program. Taking into account 
extensive stakeholder questions about Title IX's application to sex-
related eligibility criteria for male and female athletic teams, the 
Department's proposed regulation would provide that 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, be 
substantially related to the achievement of an important educational 
objective and 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 proposed regulation would 
continue to recognize, as has current Sec.  106.41(b) since its 
promulgation in 1975, that some sex-related distinctions in sports are 
permissible as long as a recipient ensures overall equal athletic 
participation opportunity regardless of sex.
    Further, it is the Department's intent that the severability 
clauses set out in the relevant subparts of 34 CFR part 106 would 
remain applicable to the proposed changes in this Athletics NPRM. It is 
also the Department's position that the proposed regulation, if adopted 
as a final rule, would serve an important purpose that is distinct from 
other provisions in part 106 and would operate independently of other 
regulatory provisions, such that any potential invalidity of the 
proposed regulation should not affect any other provisions in part 106.
    Significant Proposed Regulation:
Section 106.41 Athletics
    Statute: Title IX prohibits discrimination on the basis of sex 
under any education program or activity receiving Federal financial 
assistance. 20 U.S.C. 1681(a). The Department has the authority to 
regulate with regard to discrimination on the basis of sex in education 
programs or activities receiving Federal financial assistance, 
specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 
and 3474. And the Javits Amendment reflects that the Department has 
discretion to tailor its regulations in the athletics context that it 
might not have in other contexts and to adopt ``reasonable provisions 
considering the nature of particular sports.'' Education Amendments of 
1974 section 844.
    Current regulations: Paragraph (a) of current Sec.  106.41 
establishes a baseline rule that no person shall, on the basis of sex, 
be excluded from participation in, be denied the benefits of, be 
treated differently from another person, or otherwise be discriminated 
against in any interscholastic, intercollegiate, club or intramural 
athletics offered by a recipient, and that no recipient may provide any 
such athletics separately on the basis of sex. Section 106.41(b) sets 
forth an exception that permits a recipient to offer separate male and 
female athletic teams when selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. 
Paragraph (b) also states that when a recipient operates or sponsors a 
team in a particular sport for members of one sex but operates or 
sponsors no such team for members of the excluded sex, and athletic 
opportunities for members of the excluded sex have previously been 
limited, members of the excluded sex must be allowed to try out for the 
team offered unless the sport involved is a contact sport. The same 
paragraph lists examples of contact sports. Paragraph (c) states that 
even when a recipient offers separate male and female athletic teams, a 
recipient must provide overall equal athletic opportunity for the 
sexes.
    Proposed regulation: The Department proposes adding to Sec.  
106.41(b) a standard that would govern a recipient's adoption or 
application of 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. Specifically, the Department 
proposes renumbering current Sec.  106.41(b) as proposed Sec.  
106.41(b)(1) and adding a new paragraph as proposed Sec.  106.41(b)(2) 
to state that any such criteria a recipient adopts or applies 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)

[[Page 22867]]

minimize harms to students whose opportunity to participate on a male 
or female team consistent with their gender identity would be limited 
or denied.
    Reasons: In light of its review of Title IX and its regulations, 
stakeholder feedback, and developments in case law and in the sex-
related eligibility criteria set by some school districts, States, and 
other organizations (including athletic associations and sport 
governing bodies), the Department proposes amending its regulations to 
provide greater clarity as to the standard that applies 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 athletic team 
consistent with their gender identity. The proposed regulation is 
consistent with Sec.  106.41's framework for providing equal 
opportunity regardless of sex in a recipient's athletic program as a 
whole and with Congress's direction that the Title IX regulations 
include ``reasonable provisions'' regarding athletics that ``consider[ 
] the nature of particular sports.'' Education Amendments of 1974 
section 844.
Development of the Proposed Regulation
    In listening sessions, correspondence, and through the June 2021 
Title IX Public Hearing, OCR received feedback from stakeholders on the 
educational and other benefits of student participation on athletic 
teams and the application of Title IX's nondiscrimination mandate to 
all student-athletes. The feedback also focused on how schools can 
provide nondiscriminatory athletic opportunities for all students and 
on factors that influence fairness in competition and prevention of 
sports-related injury. Amidst this variety of views, OCR heard that 
students, recipients, athletic associations, and others need clarity 
from the Department about the legal standards that would apply to 
ensure Title IX's nondiscrimination requirement is fulfilled if a 
recipient adopts or applies sex-related criteria that would limit or 
deny students' eligibility to participate on male or female athletic 
teams consistent with their gender identity. In developing the proposed 
regulation, the Department reviewed this stakeholder input as well as 
Title IX's statutory text and purpose, Title IX's regulatory framework, 
courts' interpretations of Title IX and the U.S. Constitution, and the 
existing approaches to sex-related eligibility criteria taken by a wide 
range of States, school districts and other organizations, including 
athletic associations and sport governing bodies.\7\
---------------------------------------------------------------------------

    \7\ The policies of athletic associations, sport governing 
bodies, State agencies, and other entities, or excerpts thereof 
referenced throughout this document are examples of various 
approaches that these entities have taken regarding sex-related 
eligibility criteria for male and female athletic teams. The 
Department includes them here to illustrate various points in this 
preamble; it does not require a recipient to adopt or apply the 
examples mentioned here, and their inclusion in this preamble is not 
an endorsement by the Department of any policy or practice, nor does 
it indicate whether the policy or practice would comply with the 
standard proposed in this Athletics NPRM. Any links to websites from 
outside of the Department are provided for the reader's convenience 
only. The Department does not control or guarantee the accuracy, 
relevance, timeliness, or completeness of this outside information. 
Examples and links included in this preamble do not constitute legal 
advice, create legal obligations, or impose new requirements.
---------------------------------------------------------------------------

The Text and Purpose of Title IX
    In developing the proposed regulation, the Department considered 
Title IX's statutory text, purpose, and legislative history, as well as 
the current regulatory framework and constitutional principles.
    As noted above, Congress has been clear that Title IX prohibits sex 
discrimination in a recipient's athletic program and, recognizing the 
unique circumstances of athletics, that the Title IX regulations should 
include ``reasonable provisions'' governing athletic activities that 
``consider[ ] the nature of particular sports.'' Education Amendments 
of 1974 section 844. The Department's now-longstanding Title IX 
regulation on athletics therefore reflects the unique circumstances of 
athletics, including intercollegiate athletics. The Department's 
proposed regulation would similarly reflect the unique circumstances of 
athletics by considering whether sex-related criteria adopted or 
applied by a recipient to determine eligibility for male and female 
athletic teams, for each sport, level of competition, and grade or 
education level, are substantially related to the achievement of an 
important educational objective and 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 proposed regulation would thus preserve and build on the 
current regulatory framework the Department has long used to evaluate 
whether a recipient offers its students an equal opportunity to 
participate in athletics consistent with Title IX. It is also 
consistent with current Sec.  106.41, which prohibits sex 
discrimination in a recipient's athletic program in paragraph (a) and 
recognizes in paragraph (c) that while a recipient must provide equal 
opportunity regardless of sex in its athletic program as a whole, it 
may, in limited and defined circumstances set out in paragraph (b), 
deny individual students the opportunity to participate on a particular 
male or female team on the basis of their sex. In addition, the 
proposed regulation is consistent with OCR's longstanding policy of 
encouraging compliance with the Department's Title IX athletics 
regulation ``in a flexible manner that expands, rather than limits, 
student athletic opportunities.'' See Dear Colleague Letter: Athletic 
Activities Counted for Title IX Compliance (Sept. 17, 2008) (2008 Dear 
Colleague Letter on Title IX and Athletic Activities), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20080917.pdf; see 
also 1979 Policy Interpretation, 44 FR 71414 (noting that effectively 
accommodating the interests and abilities of male and female students 
in the selection of sports and levels of competition will, in most 
cases, ``entail development of athletic programs that substantially 
expand opportunities for women to participate and compete at all 
levels'').
    The proposed regulation is also informed by constitutional 
principles. In particular, Federal courts' equal protection analysis 
provides a helpful framework for evaluating when certain sex-based 
classifications may be justified. See, e.g., 34 CFR 106.34(b) (setting 
out Title IX regulatory standard for single-sex classes that reflects 
certain aspects of Federal courts' equal protection framework); U.S. 
Dep't of Educ., Office for Civil Rights, Final Rule: Nondiscrimination 
on the Basis of Sex in Education Programs or Activities Receiving 
Federal Financial Assistance, 71 FR 62530, 62533 (Oct. 25, 2006) 
https://www.govinfo.gov/content/pkg/FR-2006-10-25/pdf/E6-17858.pdf. 
Notably, however, because the scope of Title IX differs from the scope 
of the Equal Protection Clause, the Department's current and proposed 
Title IX regulations, while informed by constitutional principles, 
exclusively implement Title IX. See 71 FR 62533.
Court Decisions Regarding Sex-Related Eligibility Criteria
    In developing the proposed regulation, the Department also reviewed 
court decisions analyzing allegations that various policies governing 
transgender students' eligibility to participate on male or female 
athletic teams discriminate impermissibly based on sex. Several courts 
have found that excluding transgender students from participating

[[Page 22868]]

on athletic teams consistent with their gender identity impermissibly 
discriminates against these students based on sex. In one case, for 
example, a Federal district court preliminarily enjoined a school 
district from excluding a fifth-grade transgender girl from the girls' 
softball team under an Indiana law that categorically precluded 
transgender girls and women from being treated consistent with their 
gender identity for purposes of female athletic teams. A.M. v. 
Indianapolis Pub. Schs., No. 1:22-cv-01075-JMS-DLP, 2022 WL 2951430, at 
*14 (S.D. Ind. July 26, 2022), vacated as moot, (S.D. Ind. Jan. 19, 
2023).\8\ Adopting the Supreme Court's reasoning in Bostock and 
following controlling Seventh Circuit authority, the court held that 
the plaintiff had ``established a strong likelihood that she will 
succeed on the merits of her Title IX claim'' that the Indiana law 
discriminated against her on the basis of sex. Id. at * 11. As the 
court explained, prohibiting an individual from playing on a team 
consistent with their gender identity ```punishes that individual for 
his or her gender non-conformance,' which violates the clear language 
of Title IX.'' Id. (citations omitted). The court also stated that 
under current case law, this conclusion was ``not even a close call.'' 
Id.
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    \8\ On January 19, 2023, after the parties filed a Joint 
Stipulation to Dismiss Case Because of Mootness indicating that the 
plaintiff had enrolled in a charter school not operated by defendant 
Indianapolis Public Schools, the Federal district court issued an 
Acknowledgement of Dismissal and vacated the preliminary injunction 
because of mootness. A.M., No. 1:22-cv-01075-JMS-DLP (S.D. Ind. Jan. 
19, 2023). In its Acknowledgement of Dismissal, the court did not 
repudiate its prior determination that the plaintiff had a strong 
likelihood of success on the merits of her Title IX claim, as 
discussed in this preamble.
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    In another case, a Federal district court preliminarily enjoined 
the State of Idaho from enforcing a state law that ``excludes 
transgender women from participating on women's sports teams.'' Hecox 
v. Little, 479 F. Supp. 3d 930, 943, 988 (D. Idaho 2020), appeal 
argued, No. 20-35815 (9th Cir. Nov. 22, 2022). In Hecox, the court 
found that, in light of ``the dearth of evidence in the record to show 
excluding transgender women from women's sports supports sex equality, 
provides opportunities for women, or increases access to college 
scholarships,'' the transgender student plaintiff was likely to succeed 
in establishing that the Idaho statute violates her right to equal 
protection. Id. at 978-85. The court explained that the Idaho law, 
which draws a distinction based on the quasi-suspect classifications of 
sex and transgender status, must, under the Supreme Court's established 
equal protection doctrine, ``serve important governmental objectives 
and must be substantially related to achievement of those objectives.'' 
Id. at 973 (quoting Craig v. Boren, 429 U.S. 190, 197 (1976)). Although 
the court recognized that ```redressing past discrimination against 
women in athletics and promoting equality of athletic opportunity 
between the sexes' is `a legitimate and important governmental 
interest' justifying rules excluding males from participating on female 
teams,'' it concluded that that interest does ``not appear to be 
implicated by allowing transgender women to participate on women's 
teams.'' Id. at 976 (quoting Clark ex rel. Clark v. Ariz. 
Interscholastic Ass'n, 695 F.2d 1126, 1131 (9th Cir. 1982)). On this 
point, the court noted both that the small population of transgender 
athletes would not ``substantially displace'' cisgender female athletes 
and that ``it is not clear that transgender women who suppress their 
testosterone have significant physiological advantages over cisgender 
women.'' Id. at 978. As the court explained, ``[t]hat the Act 
essentially bars consideration of circulating testosterone illustrates 
the Legislature appeared less concerned with ensuring equality in 
athletics than it was with ensuring exclusion of transgender women 
athletes.'' Id. at 984.
    The court's equal protection analysis in Hecox is instructive and 
relevant to the Department's proposed Title IX regulation in several 
respects: the court examined interests commonly proffered to defend 
policies denying transgender students the opportunity to participate on 
male or female athletic teams consistent with their gender identity, 
considered whether such policies actually advance any important 
objectives, and further considered the effects of those policies on 
students' equal opportunity to participate in and benefit from their 
schools' education programs and activities. See, e.g., Hecox, 479 F. 
Supp. 3d at 977 (``[T]he Act's categorical exclusion of transgender 
women and girls entirely eliminates their opportunity to participate in 
school sports. . . .'').
    Conversely, another Federal district court upheld a West Virginia 
law against a challenge brought by a transgender girl who, because of 
the law, was excluded from participating on her middle school's girls 
athletic teams, concluding that the law satisfied both equal protection 
and Title IX. B.P.J., 2023 WL 111875, at * 8, * 10.\9\ The court agreed 
with the plaintiff that the law classified students based on sex. It 
then observed, in its equal protection analysis, that the State could 
``allow transgender individuals to play on the team with which they, as 
an individual, are most similarly situated at a given time,'' but 
concluded that the categorical ban on participation by transgender 
students consistent with their gender identity was substantially 
related to the State's asserted interest in providing equal athletic 
opportunity for girls and women. Id. at *8. With respect to Title IX, 
the court observed that: (1) current Sec.  106.41(b) permits sex-
separate athletic teams; (2) `` `the motivation for the promulgation of 
the regulation' was to increase opportunities for women and girls in 
athletics''; and (3) Sec.  106.41(b)'s ``endorsement of sex separation 
in sports refers to biological sex.'' Id. at *9 (citation omitted).
---------------------------------------------------------------------------

    \9\ As explained in Note 5 above, the district court initially 
issued a preliminary injunction barring enforcement of a State law 
that would ban the plaintiff from participating on girls' sports 
teams at school based on the strong likelihood that the West 
Virginia law violated the Equal Protection Clause and Title IX. 
B.P.J., 550 F. Supp. 3d 347, 357. On January 5, 2023, the District 
Court issued an order dissolving the preliminary injunction and 
finding the West Virginia law did not violate the Equal Protection 
Clause or Title IX. 2023 WL 111875, at *8, *10. The plaintiff 
appealed and a panel of the Fourth Circuit enjoined the District 
Court's January 5, 2023, Order pending the outcome of the appeal, 
see B.P.J. v. W. Va. State Bd. of Educ., No. 23-1078 (4th Cir. Feb. 
22, 2023), which the Defendants-Appellees have petitioned the U.S. 
Supreme Court to vacate. See Application to Vacate the Injunction 
Entered by the United States Court of Appeals for the Fourth 
Circuit, W. Va. State Bd. of Educ. v. B.P.J., No. 22A800 (U.S. Mar. 
9, 2023).
---------------------------------------------------------------------------

    With regard to the court's third observation, the Department notes 
that current Sec.  106.41(b) permits a recipient to offer ``teams for 
members of each sex,'' without defining that term, and also notes the 
longstanding application of this provision to permit a recipient to 
offer teams for women and men, and for girls and boys. The Department 
recognizes that although the court in B.P.J. interpreted the Title IX 
statute and Sec.  106.41(b) in a way that permits categorical exclusion 
of transgender students from participating consistent with their gender 
identity, other courts have set out a different interpretation of Title 
IX and its implementing regulations governing sex-separation in 
education programs and activities, see, e.g., Grimm v. Gloucester Cnty. 
Sch. Bd., 972 F.3d 586, 618-19 (4th Cir.), as amended (Aug. 28, 2020), 
cert. denied, 141 S. Ct. 2878 (2021); A.M., 2022 WL 2951430, at *7-11, 
underscoring the value of this proposed rulemaking in clarifying the 
Department's interpretation of its Title IX regulations.\10\
---------------------------------------------------------------------------

    \10\ A decision of the United States Court of Appeals for the 
Eleventh Circuit likewise highlights the need for the Department to 
clarify Title IX's application to transgender students in those 
limited and discrete contexts in which Title IX or its implementing 
regulations otherwise allow a recipient to separate students on the 
basis of sex. See Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 
(11th Cir. 2022) (en banc). In Adams, the court determined a school 
policy that excluded a transgender boy from using the male restroom 
at his school did not violate the Equal Protection Clause, id. at 
810-11, or Title IX, id. at 811-17. The Adams court recognized that 
the school's restroom policy classified students based on sex. Id. 
at 801. The court held, however, that the term ``sex'' in 34 CFR 
106.33, which allows a recipient to ``provide separate toilet . . . 
facilities on the basis of sex,'' should be understood to mean 
``biological sex,'' see Adams, 57 F.4th at 814-15. It further 
concluded that the regulation therefore permitted a recipient to 
deny transgender students access to restrooms consistent with their 
gender identity, without considering the distinct sex-based harms 
that such students suffer from such exclusion. For the Department's 
views on some of the issues raised in Adams, see En Banc Brief for 
the United States as Amicus Curiae in Support of Plaintiff-Appellee 
and Urging Affirmance at 22-28, Adams, 57 F.4th 791 (No. 18-13592), 
https://www.justice.gov/crt/case-document/file/1458461/download. 
See, e.g., id. at 22 (recognizing that the Department's Title IX 
regulation allows for sex-separate restrooms, but noting that the 
regulation does not speak to how it applies to transgender 
students).
    The claims in Adams did not involve athletics or the athletics 
regulation that is the subject of this Athletics NPRM (34 CFR 
106.41). The Department notes the court's statement in dicta, in 
reference to the Department's current athletics regulation, that 
``equating `sex' to `gender identity' or `transgender status' would 
also call into question the validity of sex-separated sports 
teams,'' Adams, 57 F.4th at 816-17, differs from the approach 
proposed in this Athletics NPRM. As discussed above, the 
Department's longstanding view is that sex-separate teams can in 
some instances advance Title IX's goals, and that as a general 
matter, a recipient may offer male and female athletic teams as long 
as they provide overall equal athletic opportunity consistent with 
Title IX's nondiscrimination guarantee. The proposed regulation 
would not alter this position and instead, for reasons discussed 
throughout this preamble, would provide the necessary clarity to 
help ensure that recipients continue to provide equal opportunity 
for students, consistent with Title IX, on their male and female 
athletic teams.

---------------------------------------------------------------------------

[[Page 22869]]

    Courts have not addressed Title IX's application to intersex or 
nonbinary student-athletes. The Department believes the proposed 
regulation would provide an appropriate Title IX framework for 
analyzing a recipient's adoption or application of sex-related criteria 
that limit or deny an intersex student's eligibility to participate on 
a male or female team consistent with their gender identity. When 
applying sex-related criteria to nonbinary students, a recipient may 
need to determine whether the criteria do, in fact, limit or deny a 
nonbinary student's eligibility to participate on a male or female team 
consistent with their gender identity to determine whether the proposed 
regulation would apply.
Existing Approaches to Eligibility Criteria for Male and Female Teams
    In addition to the considerations just discussed in developing this 
proposed regulation, the Department considered a variety of existing 
approaches to eligibility criteria for male and female teams that 
affect students' opportunity to participate on such teams consistent 
with their gender identity. Some States, as well as many school 
districts and athletic associations, have for many years adopted or 
applied eligibility criteria that do not restrict students from 
participating on male or female athletic teams consistent with their 
gender identity. Other States and organizations have, particularly in 
recent years, adopted policies that exclude some or all transgender 
students from participating on male or female athletic teams consistent 
with their gender identity or have adopted eligibility criteria that 
relate to birth certificates, physical examinations, or medical 
treatment.
    At the postsecondary level, for example, the National Collegiate 
Athletic Association (NCAA) in 2022 replaced its longstanding policy 
describing transgender students' eligibility to participate on a male 
or female college athletic team in the NCAA with a sport-by-sport 
approach. See NCAA, Transgender Student-Athlete Participation Policy 
(Jan. 2022) (NCAA 2022 Policy); https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx; NCAA, 2010 NCAA Policy on 
Transgender Student-Athlete Participation (2010), https://ncaaorg.s3.amazonaws.com/inclusion/lgbtq/INC_TransgenderStudentAthleteParticipationPolicy.pdf. The NCAA 2022 
Policy calls for its member colleges and universities to follow the 
criteria for transgender students' participation in college sports set 
by national bodies governing individual sports, which are subject to 
review by the NCAA's Committee on Competitive Safeguards and Medical 
Aspects of Sports. In announcing these changes, the NCAA emphasized its 
support for preserving transgender students' opportunity to participate 
in team sports and the importance of inclusive, fair, safe, and 
respectful environments for competition across college sports. See 
NCAA, Board of Governors Updates Transgender Participation Policy (Jan. 
19, 2022), https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy.aspx.
    This change in the NCAA's policy follows a similar change by the 
International Olympic Committee (IOC) regarding athletes' participation 
in high-level international competition. IOC, IOC Framework on 
Fairness, Inclusion, and Non-Discrimination on the Basis of Gender 
Identity and Sex Variations (Nov. 2021) (IOC Framework), https://stillmed.olympics.com/media/Documents/News/2021/11/IOC-Framework-Fairness-Inclusion-Non-discrimination-2021.pdf; IOC, IOC Consensus 
Meeting on Sex Reassignment and Hyperandrogenism (Nov. 2015), https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf. The IOC Framework recognizes ``the need to ensure that 
everyone, irrespective of their gender identity or sex variations, can 
practise sport in a safe, harassment-free environment that recognises 
and respects their needs and identities'' and that its new ``principles 
. . . aim to ensure that competition [in male and female] categories is 
fair and safe and that athletes are not excluded solely on the basis of 
their transgender identity or sex variations.'' IOC Framework at 1, 2. 
The IOC Framework encourages bodies governing individual sports--
``particularly those in charge of organising elite-level 
competition''--to develop eligibility criteria for sex-separate 
competition that ``tak[e] into consideration the nature of each 
sport,'' id. at 1, to work together to ``advance inclusion and prevent 
discrimination based on gender identity and/or sex variations,'' id. at 
2, and to ensure that any eligibility restrictions are ``evidence-
based'' and account for any unique competitive advantage or risk 
associated with a specific sport, id. at 4. The IOC Framework also 
provides that ``until evidence . . . determines otherwise, athletes 
should not be deemed to have an unfair or disproportionate competitive 
advantage due to their sex variations, physical appearance and/or 
transgender status.'' Id. at 4.
    In response to the shift by the NCAA and IOC to a sport-specific 
approach, several sport governing bodies that set criteria for certain 
non-school-based national and international competition, as well as 
postsecondary athletic competition, have announced plans to review 
their policies or have adopted or applied new policies regarding sex-
related eligibility criteria. Governing bodies in gymnastics, rowing, 
and volleyball, for example, have announced policies that allow 
athletes to participate consistent with their gender identity at lower 
or non-elite levels of

[[Page 22870]]

competition, such as in competitions where athletes are not competing 
for a place on a national team to represent the United States in 
international competition, or where the rules of international sport 
governing bodies would not apply. See, e.g., USA Gymnastics, 
Transgender & Non-Binary Athlete Inclusion Policy at 2 (Apr. 2022), 
https://usagym.org/PDFs/AboutUSAGymnastics/transgender_policy.pdf 
(``Transgender and non-binary athletes in levels other than Elite are 
permitted to compete without restriction in the gender category with 
which they identify.''); USRowing, Gender Identity Policy (Feb. 13, 
2023), https://usrowing.org/documents/2022/11/28/Gender_Identity_Policy_021323.pdf (``Athletes at the youth level 
(youth, junior, high school, scholastic, [and certain other levels, 
excluding collegiate and international competition]) shall be allowed 
to participate in a rowing activity in accordance with their expressed 
gender identity irrespective of the sex listed on the athlete's birth 
certificate or student records, and regardless of whether the athlete 
has undergone any medical treatment . . . .''); USA Volleyball, Gender 
Competition Guidelines (2022-23 Season), https://usavolleyball.org/about/gender-guidelines (last visited Apr. 1, 2023) (``[n]o 
restrictions'' for transgender girls ages 12 and under seeking to play 
on girls' teams outside of international competition).
    In the international, non-school-based context, some sport 
governing bodies have adopted policies restricting participation in 
high-level international women's competition to female athletes who 
have not experienced male puberty, see, e.g., International Swimming 
Federation (FINA), Policy on Eligibility for the Men's and Women's 
Competition Categories (June 19, 2022) (FINA Policy on Eligibility), 
https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf; or 
restricting participation in international events and setting of 
certain recognized world records to those who satisfy specific 
testosterone suppression criteria for a set period of time, see, e.g., 
Union Cycliste Internationale, Eligibility Regulations for Transgender 
Athletes (June 22, 2022) (UCI Eligibility Regulations), https://assets.ctfassets.net/761l7gh5x5an/Et9v6Fyux9fWPDpKRGpY9/96949e5f7bbc8e34d536731c504ac96f/Modification_Transgender_Regulation_22_Juin_2022_ENG.pdf. In addition, 
at least one international governing body has announced plans to 
revisit its existing criteria with the stated goal of creating 
inclusive policies that allow for safe participation and fairness in 
high-level international competition. See, e.g., World Lacrosse, World 
Lacrosse Forms Partnership with National Center for Transgender 
Equality to Create Trans-Inclusive Participation Policy (June 9, 2022), 
https://worldlacrosse.sport/article/world-lacrosse-forms-partnership-with-national-center-for-transgender-equality.
    At the secondary school level, State athletic associations have 
discussed whether and how to adopt sex-related eligibility criteria 
against the backdrop of State and Federal law, schools' experiences 
with transgender students' participation in athletics, and the context 
and purpose of interscholastic athletics. See, e.g., Luke Modrovsky, 
Transgender Athletes--Participation, Equity and Competition (May 12, 
2022), https://www.nfhs.org/articles/transgender-athletes-participation-equity-and-competition. A report on these discussions 
includes an observation from a statewide athletic official that 
although competition is an integral aspect of athletics, the 
opportunity to participate in athletics at the elementary and secondary 
levels also serves other educational purposes, including learning to 
work as a team and building skills. See id. (quoting the executive 
director of a State athletic association explaining that ``the purpose 
of interscholastic activities is meant to be education-based and not 
for the sole purpose of achieving scholarships, championship titles and 
wider recognition in the sport'' and that ``[i]nterscholastic 
activities remain an opportunity to develop a connection with teammates 
and the school community, in addition to social, emotional, physical 
and cognitive development'').
    A number of State athletic associations that oversee 
interscholastic athletics at the secondary school level, as well as 
school districts, have adopted policies permitting transgender students 
to participate on athletic teams consistent with their gender identity 
with minimal or no restrictions. See, e.g., Wash. State Interscholastic 
Activities Ass'n, Gender Diverse Youth Sport Inclusivity Toolkit at 8, 
11 (2021), http://wiaa.com/ConDocs/Con1914/GenderDiverseToolkit.pdf 
(``All students should have the opportunity to participate in WIAA 
athletics and/or activities in a manner that is consistent with their 
gender identity. . . . Athletes will participate in programs [offered 
separately for boys and girls] consistent with their gender identity . 
. . .''); R.I. Interscholastic League, Rules & Regulations at art. 3, 
Sec.  3(B) (2022), https://www.riil.org/page/3033 (``The RIIL has 
concluded that it would be fundamentally unjust and contrary to 
applicable state and federal laws, to preclude a student from 
participation on a gender specific sports team that is consistent with 
the public gender identity of that student for all other purposes.''); 
L.A. Unified Sch. Dist., Policy Bulletin: Gender Identity and 
Students--Ensuring Equity and Nondiscrimination at section II.H.2 (May 
17, 2019), https://achieve.lausd.net/cms/lib/CA01000043/Centricity/Domain/383/BUL-6224.2%20Transgender%20Policy%205%2013%2019.pdf 
(``Participation in competitive athletics, intramural sports, athletic 
teams, competitions and contact sports shall be facilitated in a manner 
consistent with the student's gender identity. . . .''). Other State 
athletic associations governing interscholastic sports at the middle 
school and high school level have adopted sex-related criteria that may 
restrict some students from participating on male or female teams 
consistent with their gender identity. See, e.g., N.M. Activities 
Ass'n, Eligibility Bylaws section 6.1 (July 1, 2022), https://www.nmact.org/file/Section_6.pdf (``Participating students are required 
to compete in the gender listed on their original or amended birth 
certificate.''); Wis. Interscholastic Athletic Ass'n, Transgender 
Participation Policy (2018), https://www.wiaawi.org/Portals/0/PDF/Eligibility/WIAAtransgenderpolicy.pdf (requiring, among other things, 
that transgender girls undergo one year of testosterone suppression 
therapy to be eligible to participate on a female team).
    The Department finds the work of these organizations on this issue 
to be informative to the extent the organizations aim to balance 
important interests, minimize harm to students whose opportunity to 
participate on a male or female team consistent with their gender 
identity would be limited or denied, and take account of the sport, 
level of competition, and grade or education level of students.

Opportunity To Participate on Male and Female Teams Consistent With 
Gender Identity

    In light of the many positive benefits of participation in school 
athletics discussed above, the Department's proposed regulation 
reflects the understanding that students may be harmed significantly if 
a school denies them the opportunity to participate in its athletic 
program consistent with their gender identity. As discussed

[[Page 22871]]

elsewhere in this preamble, participation on a team that is 
inconsistent with a student's gender identity is not a viable option 
for many students. See, e.g., A.M., 2022 WL 2951430, at * 11 
(describing a policy that prohibited students from participating on 
teams consistent with their gender identity as ``punish[ing]'' those 
students); Hecox, 479 F. Supp. 3d at 977 (``Participating in sports on 
teams that contradict one's gender identity is equivalent to gender 
identity conversion efforts, which every major medical association has 
found to be dangerous and unethical.'' (internal quotation marks and 
citation omitted)).
    Federal and State courts also have identified additional, specific 
harms to transgender students from being excluded from team 
participation consistent with their gender identity, which the 
Department recognizes are distinct from the harms to students who are 
denied the opportunity to participate on a particular team based on sex 
under the circumstances permitted in the Department's longstanding 
athletics regulation. See, e.g., A.M., 2022 WL 2951430, at * 6, * 12 
(noting that ``[p]laying softball helps to lessen the distressing 
symptoms of gender dysphoria that A.M. suffers from and has allowed her 
to experience life more fully as a girl'' and ``[s]oftball 
participation has resulted in a better self-image and confidence for 
A.M.'' whereas ``prohibiting A.M. from playing on the girls' softball 
team will `out' her to her classmates'' and ``undermine her social 
transition''); Hecox, 479 F. Supp. 3d at 987 (finding that a State law 
preventing transgender women from participating on women's athletic 
teams sponsored by public schools would harm the plaintiff, a 
transgender woman, by denying her the opportunity to try out for and 
compete on women's teams, subjecting her to the State's moral 
disapproval of her identity, and subjecting her to the possibility of 
embarrassment, harassment, and invasion of privacy through having to 
verify her sex); Roe v. Utah High Sch. Activities Ass'n, No. 220903262, 
2022 WL 3907182, at * 9-10 (Utah 3d Jud. Dist. Aug. 19, 2022) 
(describing irreparable harm to mental and physical health that the 
plaintiffs, three transgender girls, ``have suffered, and will continue 
to suffer'' as a result of a Utah law banning transgender girls from 
participating on girls' athletic teams and recognizing that ``the 
stigma caused by the Ban has been immediate'').
    Federal courts have also recognized that, because of these harms, 
excluding transgender students from participating on male or female 
athletic teams consistent with their gender identity can violate Title 
IX's prohibition on sex discrimination. See, e.g., A.M., 2022 WL 
2951430, at * 11 (finding strong likelihood of success on the merits of 
the Title IX claim because prohibiting an individual from playing on a 
team consistent with their gender identity ```punishes that individual 
for his or her gender non-conformance,' which violates the clear 
language of Title IX'' (citation omitted)); see also Hecox, 479 F. 
Supp. 3d at 977, 987 (in a case involving an equal protection claim, 
finding that a transgender college student faced ``irreparable harm'' 
from Idaho law categorically barring transgender girls and women from 
participating on girls' or women's teams and that the law ``entirely 
eliminates their opportunity to participate in school sports''). As 
noted above, the court in B.P.J. reached a different conclusion about 
the permissibility under Title IX of a ban on transgender students 
participating in team sports consistent with their gender identity, 
based on its view that the current regulation would permit such an 
exclusion and that transgender girls could try out for the boys' teams. 
2023 WL 111875, at * 9 (citing 34 CFR 106.41(b) and (c)).
Elements of the Proposed Regulation
    The proposed regulation would require that 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. The proposed regulation would not affect a recipient's 
discretion under current Sec.  106.41(b) to offer separate male and 
female athletic teams when selection is based on competitive skill or 
the activity involved is a contact sport. The following discussion 
separately addresses key elements of the proposed regulation.

Eligibility Criteria Covered by the Proposed Regulation

    The proposed regulation would govern a narrow category of athletic 
eligibility criteria: only those 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. Many schools have adopted 
criteria that govern students' eligibility to participate on athletic 
teams that are unrelated to sex, such as attendance or academic 
standing requirements (e.g., minimum grade-point average for all 
student-athletes). Criteria such as these are outside the scope of the 
proposed regulation.
    By contrast, eligibility criteria would fall within the scope of 
the proposed regulation if they are sex-related (e.g., they relate to 
how a student's sex is determined for team-eligibility purposes, 
including by imposing eligibility requirements related to a student's 
sex characteristics) and they would limit or deny students' eligibility 
to participate on a male or female team consistent with their gender 
identity. These criteria could include, for example, a requirement 
limiting or denying a student's eligibility for a male or female team 
based on a sex marker on an identification document, such as a birth 
certificate, passport, or driver's license. Criteria requiring physical 
examinations or medical testing or treatment related to a student's sex 
characteristics would also fall within the proposed regulation's scope 
if the results of such examinations or testing or requiring such 
treatment could be used to limit or deny a student's eligibility to 
participate consistent with their gender identity. Such criteria, like 
other sex-related eligibility criteria, would have to adhere to the 
proposed regulation's requirements, including the requirement to 
minimize harms.
    The proposed regulation would not prohibit all uses of sex-related 
criteria; rather, it would require that if such criteria limit or deny 
a student's eligibility to participate on a male or female team 
consistent with their gender identity, those criteria, for each sport, 
level of competition, and grade or education level, would have to be 
substantially related to the achievement of an important educational 
objective and minimize harms to students whose opportunity to 
participate on a male or female team consistent with their gender 
identity would be limited or denied.
    Additionally, the proposed regulation would apply only to those 
sex-related criteria that would ``limit or deny'' students' eligibility 
to participate consistent with their gender identity. Sex-related 
criteria would ``limit'' eligibility if, for example, they do not allow 
transgender students to participate fully on a male or female team 
consistent with their gender identity (e.g., by permitting a student to 
participate in some but not all competitions). Sex-related criteria

[[Page 22872]]

would ``deny'' students' eligibility to participate consistent with 
gender identity if they foreclose students' opportunity to participate 
on male or female teams consistent with their gender identity (e.g., by 
requiring transgender students to participate consistent with their sex 
assigned at birth or by prohibiting transgender girls who have 
undergone endogenous puberty from participating on girls' teams).

Substantially Related to the Achievement of an Important Educational 
Objective

    The proposed regulation would require that sex-related criteria be 
``substantially related to the achievement of an important educational 
objective'' if those criteria would limit or deny students' eligibility 
to participate on male or female athletic teams consistent with their 
gender identity. Proposed Sec.  106.41(b)(2) does not specify the 
objectives that a recipient may assert and instead would implement 
Title IX's guarantee of equal opportunity in education by, in part, 
specifying that the criteria must serve an important educational 
objective.
    The Department's proposed regulation is similar to the approach in 
the Department's current Title IX regulation governing single-sex 
classes, 34 CFR 106.34(b), which permits certain recipients to offer 
single-sex classes when the single-sex nature of the class is ``based 
on the recipient's important objective'' and ``substantially related to 
achieving that objective.'' That regulation limits a recipient to one 
of two specific important educational objectives.\11\ Although the 
proposed athletics regulation would not limit the important educational 
objectives a recipient may seek to achieve, ensuring fairness in 
competition and prevention of sports-related injury are examples of 
possible important educational objectives that recipients have asserted 
and might assert in the future. As with the single-sex classes 
regulation, this proposed regulation is informed by case law 
interpreting the Equal Protection Clause, which requires public schools 
to demonstrate that any sex-based classification they seek to impose is 
substantially related to the achievement of an important governmental 
objective. See Virginia, 518 U.S. at 532-33; Hecox, 479 F. Supp. 3d at 
973; see also 71 FR 62533.
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    \11\ Specifically, Sec.  106.34(b)(1)(i) provides that a 
recipient must choose one of these two important educational 
objectives: ``(A) To improve educational achievement of its 
students, through a recipient's overall established policy to 
provide diverse educational opportunities, provided that the single-
sex nature of the class or extracurricular activity is substantially 
related to achieving that objective; or (B) To meet the particular, 
identified educational needs of its students, provided that the 
single-sex nature of the class or extracurricular activity is 
substantially related to achieving that objective.''
---------------------------------------------------------------------------

    The Department notes that a recipient could not satisfy the 
proposed regulation's requirement that criteria be substantially 
related to achieving an important educational objective if its 
objective is communicating or codifying disapproval of a student or a 
student's gender identity. See, e.g., Hecox, 479 F. Supp. 3d. at 987 
(describing Idaho's restriction as impermissibly communicating the 
State's moral disapproval of the transgender plaintiff's identity); cf. 
Romer v. Evans, 517 U.S. 620, 634-35 (1996) (`` `[I]f the 
constitutional conception of ``equal protection of the laws'' means 
anything, it must at the very least mean that a bare . . . desire to 
harm a politically unpopular group cannot constitute a legitimate 
governmental interest.' '' (alterations and emphasis in original) 
(quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973))). Nor may 
a recipient adopt sex-related criteria solely for the purpose of 
excluding transgender students from sports, Hecox, 479 F. Supp. 3d at 
984-85 (noting the State of Idaho failed to identify a legitimate 
interest served by the State law that State and athletic association 
rules did not already address, ``other than an invalid interest of 
excluding transgender women and girls from women's sports entirely, 
regardless of their physiological characteristics''), or to require 
adherence to sex stereotypes, Virginia, 518 U.S. at 533 (affirming that 
States ``must not rely on overbroad generalizations about the different 
talents, capacities, or preferences of males and females''), or solely 
for the purpose of administrative convenience. See Wengler v. Druggists 
Mut. Ins. Co., 446 U.S. 142, 151-52 (1980) (rejecting justification for 
providing death benefit to women only based on assertion that ``it is 
more efficient to presume [women's] dependency [on men . . . ] than to 
engage in case-to-case determination''); Frontiero v. Richardson, 411 
U.S. 677, 689-90 (1973).
    An asserted purpose also would not satisfy the proposed regulation 
if, rather than being a genuine educational objective of the recipient, 
it is a pretext for an impermissible interest in singling out 
transgender students for disapproval or harm. See, e.g., Hecox, 479 F. 
Supp. 3d at 984 (noting Idaho ``[l]egislature appeared less concerned 
with ensuring equality in athletics than it was with ensuring exclusion 
of transgender athletes''); cf. Virginia, 518 U.S. at 533 (explaining 
that a State's justification for sex-related differential treatment 
``must be genuine, not hypothesized or invented post hoc in response to 
litigation'').
    Separately, interests in fairness in competition and in preventing 
sports-related injury to students have been advanced by some 
stakeholders and discussed by Federal courts in evaluating sex-related 
eligibility criteria for limiting or denying students' participation on 
male or female teams consistent with their gender identity. Thus, the 
Department anticipates that a recipient might assert fairness in 
competition or prevention of sports-related injury as an important 
educational objective in its athletic programs, particularly for older 
students in competitive athletic programs.
    The Department recognizes that competition is an integral part of 
many team sports, particularly at the high school and collegiate level, 
and that schools have an interest in ensuring competition is fair, 
including that competitors meet the relevant criteria for competition 
in their league, such as age and skill level, following applicable 
rules, and otherwise engaging in fair play. See, e.g., 2008 Dear 
Colleague Letter on Title IX and Athletic Activities (considering 
competition, among other factors, when determining whether an activity 
is a sport that can be counted as part of a recipient's athletic 
program for the purpose of evaluating Title IX compliance and noting 
that competitive interscholastic and intercollegiate athletic 
opportunities are generally ``governed by a specific set of rules of 
play . . . which include objective, standardized criteria by which 
competition must be judged''). Likewise, the Department recognizes that 
schools have an interest in the prevention of sports-related injury. As 
some stakeholders expressed, ensuring fair competition and prevention 
of sports-related injury does not necessarily require schools to adopt 
or apply 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. As discussed above, many schools do not impose 
such restrictions, and some sport governing bodies impose such 
restrictions only for older students in highly competitive settings. 
See, e.g., USRowing, Gender Identity Policy at 1; FINA Policy on 
Eligibility.
    Some stakeholders expressed their views that fairness in 
competition depends on having generally applicable competition rules 
and cannot be

[[Page 22873]]

determined based on whether a particular student wins or loses, and 
that schools and athletic associations use various strategies to 
address injury-related concerns, recognizing that student-athletes vary 
widely in size and strength on any given team. Strategies noted by 
stakeholders included appropriate coaching and training, requiring use 
of protective equipment, and specifying rules of play, all of which can 
protect against sports-related injury without imposing sex-related 
eligibility criteria that would limit or deny student participation 
consistent with their gender identity. Some of these stakeholders thus 
asserted that the goals of fair competition and prevention of sports-
related injury could be achieved while allowing all students the 
opportunity to participate on athletic teams consistent with their 
gender identity, particularly at pre-collegiate and college club and 
intramural levels.
    On the other hand, other stakeholders noted that they would view 
eligibility rules that permit participation by transgender students as 
unfair or unsafe and asserted that some female students might choose 
not to participate on female teams under such rules. Many of these 
stakeholders focused their comments on participation by transgender 
girls and women who have undergone endogenous puberty, resulting in 
potentially unfair advantages in size, weight, and strength differences 
and potentially posing a risk of injury to others. Other stakeholders 
countered, as noted above, that there are significant differences in 
size, weight, and strength among girls and women who are not 
transgender. Some of these stakeholders also indicated that mitigating 
measures would be sufficient to address any risk of unfair advantage in 
competition or risk of sports-related injury on female teams.
    Courts have found fairness in competition to be an important 
educational objective in the context of determining whether schools 
could provide sex-separate athletic teams. For example, in Clark ex 
rel. Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1131 (9th 
Cir. 1982), the Ninth Circuit recognized the importance of ``providing 
equal opportunities for women'' athletes and agreed with the Arizona 
Interscholastic Association that male students would displace female 
students in volleyball ``to a substantial extent'' if not excluded from 
competition. And, in Hecox, the court and all parties recognized 
Idaho's important governmental interest in promoting sex equality by 
providing female athletes from elementary school through college a fair 
opportunity ``to demonstrate their skill, strength, and athletic 
abilities'' in school-sponsored athletic competition. 479 F. Supp. 3d 
at 978.
    The Department recognizes fairness in competition and prevention of 
sports-related injury can be important educational objectives. This 
recognition is consistent with stakeholder feedback, case law, and 
current Sec.  106.41(b), which permits teams to be separated by sex 
where selection for such teams is based upon competitive skill or the 
activity involved is a contact sport. Although many schools presently 
work to ensure fairness in competition and prevention of sports-related 
injury while allowing all students to participate on male or female 
teams consistent with their gender identity, the proposed regulation 
would permit a recipient to take a different approach as long as the 
criteria used to determine who can participate on a particular male or 
female athletic team are substantially related to achieving that 
important educational objective and comply with the proposed 
regulation's other requirements.

Substantial Relationship Requirement

    Under the Department's proposed regulation, 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 would need to 
be, for each sport, level of competition, and grade or education level, 
``substantially related'' to achieving an important educational 
objective.
    As discussed above, the substantial relationship requirement, like 
the achievement of an important educational objective, is similar to 
the standard in the Department's Title IX regulation governing access 
to single-sex classes, 34 CFR 106.34, and informed by case law 
interpreting the Equal Protection Clause. See Virginia, 518 U.S. at 
532-33; Hecox, 479 F. Supp.3d at 978. Under the proposed regulation, 
consistent with courts' equal protection analysis, sex-related criteria 
would be substantially related to achievement of an important 
educational objective if there is a ``direct, substantial relationship 
between'' a recipient's objective and the means used to achieve that 
objective, see Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 
(1982), and if the criteria do not rely on overly broad generalizations 
about the talents, capacities, or preferences of male and female 
students, see, e.g., Virginia, 518 U.S. at 533; Hecox, 479 F. Supp. 3d 
at 982 (``[I]t appears the `absolute advantage' between transgender and 
cisgender women athletes [claimed by defendants] is based on overbroad 
generalizations without factual justification.'').
    Under proposed Sec.  106.41(b)(2), for example, a recipient would 
be permitted, consistent with Title IX's requirement to provide overall 
equal athletic opportunity for students regardless of sex, to rely on 
fairness in competition as an important educational objective to 
justify its use of sex-related criteria that would limit or deny 
students' eligibility to participate consistent with their gender 
identity--but only if those criteria are substantially related to 
ensuring fairness in competition in that particular sport at the 
applicable level of competition and grade or education level. Cf. 
Clark, 695 F.2d at 1127 (upholding policy excluding boys from girls' 
high school volleyball teams to preserve participation opportunities 
for girls). As courts have noted, for example, it would not be 
reasonable to assume that all transgender girls and women are similarly 
situated in their physical abilities to cisgender boys and men. See, 
e.g., Hecox, 479 F. Supp. 3d. at 978. Therefore, criteria that assume 
all transgender girls and women possess an unfair physical advantage 
over cisgender girls and women in every sport, level of competition, 
and grade or education level would rest on a generalization that would 
not comply with the Department's proposed regulation. The court in 
Hecox made a similar point when it rejected the premise of an Idaho law 
that, in every circumstance, ``transgender women and girls have `an 
absolute advantage' over non-transgender girls'' because evidence in 
the record ``undermine[s] this conclusion.'' 479 F. Supp. 3d at 980-81. 
The court found that although ``[t]he Equal Protection Clause does not 
require courts to disregard the physiological differences between men 
and women,'' the specific principles that support ``sex separation in 
sport'' generally ``do not appear to hold true for women and girls who 
are transgender.'' Id. at 976-77 (discussing Clark, 695 F.2d at 1129, 
1131). Criteria that categorically exclude all transgender girls and 
women from participating on any female athletic teams, for example, 
would not satisfy the proposed regulation because, in taking a one-
size-fits-all approach, they rely on overbroad generalizations that do 
not account for the nature of particular sports, the level of 
competition at issue, and the grade or education level of students to 
which they apply.
    A State trial court in Utah observed that ``the evidence 
suggest[ed] that being transgender is not `a legitimate accurate proxy' 
for athletic performance.'' Utah

[[Page 22874]]

High Sch. Activities Ass'n, 2022 WL 3907182, at *8 (citations omitted). 
That court explained that ``[m]any transgender girls--including two of 
the plaintiffs in this case--medically transition at the onset of 
puberty, thereby never gaining any potential advantages that the 
increased production of testosterone during male puberty may create.'' 
Id. The court also noted that other transgender girls ``may simply have 
no discernible advantage in any case, depending on the student's age, 
level of ability, and the sport in which they wish to participate.'' 
Id. In short, although fairness in competition may be an important 
educational objective, the recipient's sex-related eligibility criteria 
must be substantially related to the actual achievement of that 
objective. That substantial relationship could not be established by 
reliance on overbroad generalizations based on sex.
    Similarly, although some stakeholders expressed a concern that 
allowing any transgender girls and women to participate in sports 
consistent with their gender identity could displace cisgender girls 
and women from participating in sports, other stakeholders observed 
that very few female student-athletes are transgender and, as just 
discussed, transgender students do not necessarily have greater 
physical or athletic ability than cisgender students that would affect 
cisgender students' equal opportunity to participate in a recipient's 
athletic program. Some courts have also observed that the very small 
number of transgender girls and women who are student-athletes must be 
considered when evaluating claims that those athletes pose an outsized 
risk to participation by and opportunities for cisgender girls and 
women who are student-athletes. See, e.g., Utah High Sch. Activities 
Ass'n, 2022 WL 3907182, at *8 (finding ``no support for a claim `that 
allowing transgender women to compete on women's teams would 
substantially displace female athletes' '' (quoting Hecox, 479 F. Supp. 
3d at 977-78)).
    The substantial relationship requirement thus would mean that if a 
recipient adopts or applies sex-related criteria that would limit or 
deny students' eligibility to participate on a male or female team 
consistent with their gender identity, the justification for those 
criteria must be based on ``reasoned analysis rather than through the 
mechanical application of traditional, often inaccurate, assumptions.'' 
Miss. Univ. for Women, 458 U.S. at 726; see also, e.g., Clark, 695 F.2d 
at 1129 (explaining that sex-based criteria would not be substantially 
related to promoting fairness in competition if based on overbroad 
generalizations ``without factual justification'' (citing Schlesinger 
v. Ballard, 419 U.S. 498, 508 (1975), and Miss. Univ. for Women, 458 
U.S. 718)).
    If a school can achieve its objective using means that would not 
limit or deny a student's participation consistent with their gender 
identity, its use of sex-related criteria may be pretextual rather than 
substantially related to achievement of that important educational 
objective. Thus, under proposed Sec.  106.41(b)(2), whether the 
objective could be accomplished through alternative criteria that would 
not limit or deny a student's eligibility to participate on a male or 
female team consistent with their gender identity would be relevant to 
the analysis.
    Federal courts have taken a similar approach in evaluating 
challenges to sex-based classifications under the Equal Protection 
Clause by considering whether government entities could achieve the 
same goal using other means. For example, the Supreme Court noted that 
it was uncontested that the Virginia Military Institute could achieve 
its goal of maintaining its adversative training program with some 
adjustments short of denying admission to all female applicants. 
Virginia, 518 U.S. at 550 n.19; see also, e.g., Sessions v. Morales-
Santana, 582 U.S. 47, 63 n.13 (2017) (``[O]ur decisions reject measures 
that classify unnecessarily and overbroadly by gender when more 
accurate and impartial lines can be drawn.''); Orr v. Orr, 440 U.S. 
268, 283 (1979) (rejecting the use of gender-based classifications 
where an important governmental interest is ``as well served by a 
gender-neutral classification'' because a gender-based classification 
``carries with it the baggage of sexual stereotypes''); Caban v. 
Mohammed, 441 U.S. 380, 393 & n.13 (1970) (rejecting sex-based 
distinction while noting that the State could achieve its interests 
``through numerous other mechanisms more closely attuned to those 
interests'').
    The Department notes that to satisfy the substantial relationship 
requirement, a recipient would not be permitted to rely on false 
assumptions about transgender students. For example, criteria that 
exclude transgender students from participation on a male or female 
team based on a false assumption that transgender students are more 
likely to engage in inappropriate conduct than other students would not 
satisfy the proposed regulation because the criteria would not be 
substantially related to achieving an important educational objective. 
See, e.g., Parents for Privacy v. Barr, 949 F.3d 1210, 1228-29 (9th 
Cir. 2020) (rejecting Title IX claim because ``[t]he use of facilities 
for their intended purpose, without more, does not constitute an act of 
harassment simply because a person is transgender''); Doe v. Boyertown 
Sch. Dist., 897 F.3d 518, 534 (3d Cir. 2018) (rejecting claim that a 
transgender student's presence in sex-separate facilities violated 
cisgender students' Title IX rights and distinguishing cases involving 
voyeurism and sexual harassment as not analogous). Moreover, nothing in 
Title IX precludes a school from taking nondiscriminatory steps to 
prevent misconduct and protect privacy for all students.

Grade or Education Level

    The Department's proposed regulation would require that sex-related 
eligibility criteria that would limit or deny a student's eligibility 
to participate on a male or female team consistent with their gender 
identity must, for each grade or education level, be substantially 
related to the achievement of an important educational objective. This 
requirement would recognize that students of varying grades or 
education levels are not necessarily similarly situated with respect to 
the purposes of team participation, the harms resulting from exclusion 
from participation, their athletic skills development, other 
developmental factors, or their legal status as a minor or adult. Thus, 
any sex-related eligibility criteria must account for those factors 
that affect students in the particular grade or education level to 
which the criteria would apply.
    Although competition is an aspect of many team sports across grades 
and education levels, athletic teams offered by schools for students in 
earlier grades, including those in elementary and middle school, also 
present an important opportunity to introduce students to new 
activities for which little or no prior experience is required, acquire 
basic skills associated with a particular sport, and develop 
introductory skills related to physical fitness, leadership, and 
teamwork. See Kelsey Logan & Steven Cuff, Am. Acad. Pediatrics Council 
on Sports Med. & Fitness, Organized Sports for Children, 
Preadolescents, and Adolescents, Pediatrics (June 2019), https://publications.aap.org/pediatrics/article/143/6/e20190997/37135/Organized-Sports-for-Children-Preadolescents-and (associating 
participation in organized sports in childhood with long-term 
participation in organized sports, development of life skills, and a 
high level of physical fitness later in life).

[[Page 22875]]

Reinforcing this point, the Department's review of the publicly 
available athletic association policies for all 50 States and the 
District of Columbia and Puerto Rico indicates that the overwhelming 
majority of State athletic associations do not regulate athletic 
competition between elementary school teams.
    Similarly, the Department's review found that only about half of 
State athletic associations regulate athletic activities in middle 
school, and many of those that regulate make clear the mission of 
athletics in those grades is to encourage broad participation, basic 
skills development, and other aspects of student well-being. See, e.g., 
Wis. Interscholastic Athletic Ass'n, Middle Level Handbook (2022-23) at 
2, https://www.wiaawi.org/Portals/0/PDF/Publications/jrhandbook.pdf 
(``The developmental characteristics of young adolescents should 
provide the foundation for the middle level athletic programs and 
philosophy. . . . Programs should promote behaviors that include 
cooperation, sportsmanship and personal improvement. Winning is not the 
primary goal of the program. . . . The program should be open to all 
young adolescents and provide a positive experience. All young 
adolescents should have the opportunity to participate, play and 
experience skill improvement.''); Iowa High Sch. Athletic Ass'n, Junior 
High Sports Manual (2021-23) at 1, https://www.iahsaa.org/wp-content/uploads/2022/08/2021-23-Junior-High-Manual-8.17.22.pdf (``The primary 
purpose of the junior high school athletic program is participation, 
with emphasis on the development of skills, sportsmanship, and 
citizenship of all students.''); S.C. High Sch. League, 2022-23 Middle 
School Rules & Regulations at 1, https://schsl.org/archives/7950 (``The 
program must be justified on a basis of contribution to the desirable 
development of the participants. The welfare of the youth concerned is 
of greatest importance. All other needs and problems should be 
secondary.'').
    One State athletic association explained, for example, that member 
schools' goals for offering interscholastic athletic competition and 
activities for middle school students should encourage broad 
participation for students in middle school in recognition of the 
``great range of individual differences among boys and girls of this 
age (age; body build; interest; ability; experience; health, and the 
stages of physiological, emotional and social maturity).'' S.C. High 
Sch. League, 2022-23 Middle School Rules & Regulations at 1, https://schsl.org/archives/7950. To that end, it directs schools to approach 
competition ``from as broad a base as possible to offer experience to 
many boys and girls.'' Id.
    The Department recognizes that recipients that offer male and 
female teams to students in early grades have a significant interest in 
providing all of their students an opportunity to gain foundational 
physical, emotional, academic, and interpersonal benefits, and other 
life skills associated with team sports participation regardless of 
sex. See Kelsey Logan & Steven Cuff, Am. Acad. Pediatrics Council on 
Sports Med. & Fitness, Organized Sports for Children, Preadolescents, 
and Adolescents, Pediatrics (June 2019) (describing the many benefits 
of youth participation, including children, preadolescents, and 
adolescents, in organized sports); Anne C. Fletcher et al., Structured 
Leisure Activities in Middle Childhood: Links to Well-Being, J. 
Community Psychology 31-6, 641-59 (2003) (associating greater 
psychosocial development with participation in sport activities in 
elementary school). Barring students from participating on teams 
consistent with their gender identity may impede them from developing 
an interest in or aptitude for team sports or for athletic activity 
altogether, including into adulthood, resulting in negative health and 
well-being consequences and long-term loss of opportunity. See, e.g., 
Sandra D. Simpkins et al., Participating in Sport and Music Activities 
in Adolescence: The Role of Activity Participation and Motivational 
Beliefs During Elementary School, 39 J. Youth Adolescence 1368 (2009), 
https://link.springer.com/article/10.1007/s10964-009-9448-2 (concluding 
that elementary school children who did not participate in sports were 
unlikely to participate when they become adolescents); cf. A.M., 2022 
WL 2951430, at *11 (describing distress and other harms associated with 
prohibiting students from playing on a team consistent with their 
gender identity).
    Accordingly, the Department currently believes that there would be 
few, if any, sex-related eligibility criteria applicable to students in 
elementary school that could comply with the proposed regulation, and 
that it would be particularly difficult for a recipient to comply with 
the proposed regulation by excluding students immediately following 
elementary school from participating on male or female teams consistent 
with their gender identity. The Department welcomes comments on whether 
any sex-related eligibility criteria can comply with this proposed 
regulation when applied to students in these earlier grades and, if so, 
the types of criteria that may comply with the proposed regulation. The 
Department anticipates that at the high school and college level, 
schools' application or adoption of sex-related eligibility criteria to 
ensure an important educational objective, such as fairness in 
competition in their athletic programs, may be more likely to satisfy 
the proposed regulation.

Level of Competition

    The proposed regulation would specify that any sex-related criteria 
that would limit or deny a student's eligibility to participate on a 
male or female team must be substantially related to achieving an 
important educational objective for each level of competition to which 
it applies.
    This aspect of the proposed regulation would recognize that school-
based athletic team offerings vary widely across the United States. To 
the extent teams are offered for students at earlier grades and levels 
of education, many schools prioritize broad participation and teaching 
basic skills. These teams are often not highly selective, including 
``no-cut'' teams that allow all students to join the team and 
participate, and rarely provide elite competition opportunities, as 
discussed above in Existing Approaches to Eligibility Criteria for Male 
and Female Teams. Some schools also offer teams at lower levels of 
competition that are designed to encourage broad participation and help 
students build basic skills (e.g., intramural, junior varsity, unified) 
that often permit all or most interested students to participate 
without an expectation of high-level competition (e.g., varsity). Other 
teams, more typically for older students who have advanced skills, 
including at many postsecondary institutions, are more selective and 
engage in elite competition. See generally NCAA, Overview, https://www.ncaa.org/sports/2021/2/16/overview.aspx (last visited Mar. 29, 
2023) (describing levels of intercollegiate competition for member 
colleges and universities).
    Some stakeholders urged the Department to develop regulations 
governing the participation of students on male or female teams 
consistent with their gender identity in a manner that accounts for 
different levels of competition. In a view expressed by some 
stakeholders, a one-size-fits-all policy approach would not be 
appropriate because athletic participation is organized differently at 
various levels of competition with some male and female teams open to 
all students and some that accommodate a larger roster of students with 
widely varying skill levels. Some stakeholders

[[Page 22876]]

also noted that at high levels of competition in high school, students 
may be competing with each other for limited scholarship and 
recruitment opportunities. Some stakeholders urged that it is 
appropriate for sex-related criteria that govern the participation of 
athletes consistent with gender identity to account for differences at 
these levels of competition.
    The Department is also aware of distinctions that national and 
international sport governing bodies draw among athletes at different 
levels of competition. In some cases, the criteria that these 
organizations require transgender athletes to meet to participate on a 
male or female team consistent with their gender identity differ based 
on the level of competition. As noted above, for example, USA 
Gymnastics permits transgender athletes to participate ``without 
restriction'' in all competition activities below the elite level. USA 
Gymnastics, Transgender & Non-Binary Athlete Inclusion Policy at 2. 
Similarly, World Athletics, the international governing body for track 
and field events, has adopted regulations that apply only at the World 
Rankings competition level or to athletes who wish to have their 
performance at a lower competition level recognized as a World Record. 
World Athletics permits member federations to set their own regulations 
to determine eligibility to participate in lower level competitions 
consistent with an athlete's gender identity. See World Athletics, Rule 
C3.5A--Eligibility Regulations for Transgender Athletes (Mar. 2023) 
(Rules 2.1 and 2.5), https://www.worldathletics.org/about-iaaf/documents/book-of-rules.
    In light of these examples, the Department proposes a standard that 
would specifically require a recipient that adopts or applies sex-
related eligibility criteria for male and female teams to account for 
the level of competition at issue. As noted above, the Department 
expects sex-related eligibility criteria to be more common and more 
likely to satisfy the proposed regulation at higher grade levels, 
particularly high school and postsecondary levels.

Sport

    The proposed regulation would specify that any sex-related criteria 
for eligibility to participate on a male or female team must be 
substantially related to achievement of an important educational 
objective for each sport to which it applies. This requirement is 
consistent with the Javits Amendment's direction that the Title IX 
regulations include reasonable athletics provisions that ``consider[ ] 
the nature of particular sports.'' Education Amendments of 1974 section 
844.
    The Department proposes this requirement because not all 
differences among students confer a competitive advantage or raise 
concerns about sports-related injury in every sport, and 
``[c]lassification on strict grounds of sex, without reference to 
actual skill differentials in particular sports, would merely echo 
`archaic and overbroad generalizations.' '' Att'y Gen. v. Mass. 
Interscholastic Athletic Ass'n, 393 NE2d 284, 293 (Mass. 1979) 
(citations omitted) (rejecting the athletic association's argument that 
it was justified in imposing a complete ban on male athletes 
participating on female athletic teams because of an assertion of the 
male athletes' competitive advantage in all sports); see also, e.g., 
Utah High Sch. Activities Ass'n, 2022 WL 3907182, at *8-9 (finding that 
challenged Utah law had a substantial likelihood of violating the State 
constitution because it ``prevents all transgender girls from competing 
on all girls' teams, regardless of any potentially relevant factors, 
such as . . . the nature of the particular sport'' (emphasis in 
original)).
    School districts and postsecondary institutions offer a wide 
selection of sports (e.g., badminton, baseball, basketball, bowling, 
curling, football, golf, gymnastics, riflery, skiing, soccer, softball, 
swimming and diving, tennis, trap shooting, volleyball, water polo). 
See Nat'l Fed'n of State High Sch. Ass'ns, High School Athletics 
Participation Survey (2021-22), https://www.nfhs.org/media/5989280/2021-22_participation_survey.pdf. These and other sports that schools 
offer each have unique rules and prioritize varied skills and 
attributes. Likewise, students on any given team will typically vary 
significantly in skills, size, strength, and other attributes that may 
be relevant to their chosen sport or position within a sport. Thus, 
under the proposed regulation, any sex-related eligibility criteria for 
male or female teams that would limit or deny participation consistent 
with gender identity would need to be substantially related to 
achieving an important educational interest in relation to the 
particular sport to which the criteria apply. Overbroad generalizations 
that do not account for the nature of particular sports would not be 
sufficient to comply with the proposed regulation.
    The proposed regulation also would address issues raised in 
feedback the Department received from stakeholders who suggested that 
any regulations the Department might adopt should account for 
variations among sports. Stakeholders noted that outside the 
educational setting, national and international sport governing bodies 
set rules for participation and competition that differ by sport. As 
discussed above, the NCAA and the IOC have directed the entities that 
set rules for participation and competition in intercollegiate and 
international sporting events recognized by the NCAA and the IOC 
respectively to adopt a sport-specific approach for any sex-related 
eligibility criteria to participate on male or female teams consistent 
with gender identity. As the IOC explained, sport governing bodies must 
ensure that any sex-related eligibility criteria included in their 
policies ``tak[e] into consideration the nature of each sport,'' IOC 
Framework at 1, and account for any sport-specific competitive 
advantage or risk, id. at 4. The Department notes, however, that the 
proposed regulation would not necessarily require schools to adopt 
distinct eligibility criteria for each sport; rather, where sex-related 
criteria would limit or deny students' eligibility to participate 
consistent with their gender identity, the criteria must satisfy the 
proposed regulation as applied to that sport.
    The proposed regulation would therefore provide that, in light of 
the variation among sports, a recipient that adopts or applies sex-
related eligibility criteria for male or female teams must demonstrate 
that its criteria are substantially related to achievement of an 
important educational objective for the particular sport to which they 
apply.

Harm Minimization Requirement

    Proposed 106.41(b)(2) would also require that, if a recipient 
adopts or applies sex-related criteria that would limit or deny 
students' eligibility to participate on a male or female team 
consistent with their gender identity, it must do so in a way that 
minimizes harms to students whose opportunity to participate on a male 
or female team consistent with their gender identity would be limited 
or denied.
    As explained earlier in this preamble, Title IX generally prohibits 
a recipient from excluding students from an education program or 
activity on the basis of sex when the exclusion causes more than de 
minimis harm. When students are separated or treated differently based 
on sex, a recipient risks harming those students in a way that would 
ordinarily violate Title IX. See 34 CFR 106.31(b)(4) and (7) (providing 
that, ``[e]xcept as provided in this subpart, in providing any aid, 
benefit, or service to a student, a recipient shall not, on the basis 
of sex

[[Page 22877]]

. . . [s]ubject any person to separate or different rules of behavior, 
sanctions, or other treatment . . . [or] [o]therwise limit any person 
in the enjoyment of any right, privilege, advantage, or opportunity''); 
see also, e.g., Grimm, 972 F.3d at 617 (recognizing that school's 
imposition of different rules on transgender students than other 
students in their use of school facilities was ``sufficient to 
constitute harm under Title IX''). But see Adams, 57 F.4th at 814-15 
(holding school district policy that excludes transgender students from 
restrooms that correspond to their gender identity does not violate 
Title IX regulations because of the language of 34 CFR 106.33). The 
July 2022 NPRM proposed amendments to the Department's Title IX 
regulations that would clarify that a recipient must not separate or 
treat students differently in a manner that discriminates on the basis 
of sex by subjecting a person to more than de minimis harm unless 
otherwise permitted by Title IX or the Department's Title IX 
regulations. 87 FR 41534-37. Those proposed amendments would further 
clarify that a policy or practice that prevents a person from 
participating in an education program or activity consistent with their 
gender identity subjects a person to more than de minimis harm on the 
basis of sex. Id.
    Consistent with the Javits Amendment, the Department's Title IX 
regulations have taken a different approach in the athletics context, 
permitting a recipient to offer male and female athletic teams to 
promote equal opportunity for all athletes, even though some harm may 
be caused when a recipient offers sex-separate athletic teams. In 
particular, current Sec.  106.41(b), in place since 1975, permits a 
recipient to offer male and female athletic teams under certain 
circumstances, and such teams may in those circumstances exclude some 
students on the basis of sex. This longstanding requirement reflects 
the Department's recognition that a recipient's provision of male and 
female teams can advance rather than undermine overall equal 
opportunity in the unique context of athletics by creating meaningful 
participation opportunities that were historically lacking for women 
and girls. See 1979 Policy Interpretation, 44 FR 71421 (``If women 
athletes, as a class, are receiving opportunities and benefits equal to 
those of male athletes, individuals within the class should be 
protected thereby.'').
    The Department also recognizes that overall equal opportunity does 
not require identical programs for male and female athletes, id. at 
71421-22, and thus a recipient may, and has always been permitted to, 
deny students the opportunity to participate on a particular male or 
female team based on sex under certain circumstances. For example, a 
recipient may, in some circumstances, offer a volleyball team for girls 
but not boys, and a boy who would like to play on the school's 
volleyball team may not be able to do so for reasons discussed above. 
But the permissibility of sex-separate teams does not exempt a 
recipient from its responsibility not to otherwise discriminate based 
on sex when offering opportunities to participate on those teams.
    A school policy of separating students on the basis of particular 
reproductive or other sex-based characteristics, see, e.g., B.P.J., 
2023 WL 111875, at *2 (evaluating West Virginia's classification of 
students based on ``reproductive biology and genetics at birth''), will 
not materially harm the vast majority of students, as those sex-related 
criteria permit them to participate on athletic teams consistent with 
their gender identity. But when sex-related criteriaLGB do limit or 
deny a student's eligibility to participate on a male or female 
athletic team consistent with their gender identity, the student is 
subjected to harms based on sex that are distinct from the harms 
otherwise permitted under the Department's longstanding athletics 
regulation (e.g., a girl who is not selected for the girls' soccer team 
based on her athletic skills or a boy who is not eligible to play on 
the girls' volleyball team when the recipient does not offer a boys' or 
coeducational volleyball team). Criteria that limit or deny students' 
eligibility to participate in sports consistent with their gender 
identity can force individual students to disclose that they are 
transgender, which can be ``extremely traumatic'' and ``undermine [a 
student's] social transition,'' A.M., 2022 WL 2951430, at *11-12; 
subject them to ``embarrassment, harassment, and invasion of privacy 
through having to verify [their] sex,'' Hecox, 479 F. Supp. 3d at 987; 
and can communicate disapproval of transgender students, ``which the 
Constitution prohibits'' in the context of public schools, Hecox, 479 
F. Supp. 3d at 987 (citing Lawrence v. Texas, 539 U.S. 558, 582-83 
(2003)). Further, such sex-related exclusion leaves affected students 
with no viable opportunity to participate in athletics if the only 
other option is to participate on a team that does not align with their 
gender identity. Hecox, 479 F. Supp. 3d at 977 (citing evidence that, 
for transgender students, participating on a team that is inconsistent 
with their gender identity is equivalent to medically harmful gender 
identity conversion efforts).
    The current regulations, however, do not expressly address these 
distinct harms caused by sex-related criteria that limit or deny 
students' eligibility to participate on male or female teams consistent 
with their gender identity. Proposed Sec.  106.41(b)(2) would account 
for such harms by requiring that such criteria be adopted and applied 
in a way that minimizes the harms caused to those students. As a 
result, even sex-related criteria that are substantially related to the 
achievement of an important educational objective would violate 
proposed Sec.  106.41(b)(2) if the recipient can reasonably adopt or 
apply alternative criteria that would be a less harmful means of 
achieving the recipient's important educational objective. For example, 
a recipient might adopt sex-related criteria that require documentation 
of student-athletes' gender identity based on its interest in 
providing, consistent with Title IX, equal athletic opportunity on male 
and female teams under Sec.  106.41(c). Under proposed Sec.  
106.41(b)(2), the recipient would need to design those criteria to 
minimize the potential harms imposed on affected students (e.g., 
difficulty of obtaining documentation, risk of invasion of privacy or 
disclosure of confidential information). If the recipient can 
reasonably adopt or apply alternative criteria that cause less harm and 
still achieve its important educational objective, the recipient would 
not be permitted to adopt the more harmful criteria.
    In sum, the proposed regulation would preclude a recipient from 
implementing sex-based classifications more broadly than is necessary 
to implement the statute's underlying goals, consistent with Title IX's 
guarantee that ``[n]o person in the United States'' shall be subject to 
prohibited discrimination on the basis of sex. 20 U.S.C. 1681(a) 
(emphasis added). Proposed Sec.  106.41(b)(2) would thus provide 
recipients greater clarity on how to comply with Title IX's 
nondiscrimination obligation if recipients adopt or apply sex-related 
criteria that would limit or deny a student's eligibility to 
participate on male or female athletic teams consistent with their 
gender identity.
Directed Questions
    The Department continues to consider how its Title IX regulations 
should clarify the permissibility of sex-related criteria that would 
limit or deny a student's eligibility to participate on a

[[Page 22878]]

male or female athletic team consistent with their gender identity. The 
Department therefore specifically invites further public comment on:
    a. Whether any alternative approaches to the Department's proposed 
regulation would better align with Title IX's requirement for a 
recipient to provide equal athletic opportunity regardless of sex in 
the recipient's athletic program as a whole;
    b. What educational objectives are sufficiently important to 
justify a recipient imposing sex-related criteria that would limit or 
deny a student's eligibility to participate on a male or female 
athletic team consistent with their gender identity and whether those 
objectives should be specified in the regulatory text;
    c. Whether and how the permissibility of particular sex-related 
eligibility criteria should differ depending on the sport, level of 
competition, grade or education level, or other considerations;
    d. Whether any sex-related eligibility criteria can meet the 
standard set out in the proposed regulation when applied to students in 
earlier grades, and, if so, the type of criteria that may meet the 
proposed standard for those grades;
    e. How a recipient can minimize harms to students whose eligibility 
to participate on a male or female athletic team consistent with their 
gender identity is limited or denied by the recipient's adoption or 
application of sex-related criteria; and
    f. Whether regulatory text in addition to the text in the proposed 
regulation is needed to provide recipients with sufficient clarity on 
how to comply with Title IX's prohibition on sex discrimination, 
including gender identity discrimination, in the context of male and 
female athletic teams, consistent with the principles and concerns 
identified in the discussion of proposed Sec.  106.41(b)(2).

Regulatory Impact Analysis (RIA)

    Under Executive Order 12866,\12\ the Office of Management and 
Budget (OMB) must determine whether this regulatory action is 
``significant'' and, therefore, subject to the requirements of the 
Executive order and subject to review by OMB. Section 3(f) of Executive 
Order 12866 defines a ``significant regulatory action'' as an action 
likely to result in a rule that may--
---------------------------------------------------------------------------

    \12\ Executive Order on Regulatory Planning and Review, Exec. 
Order No. 12866, 58 FR 51735 (Oct. 4, 1993).
---------------------------------------------------------------------------

    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This proposed action is ``significant'' and, therefore, subject to 
review by OMB under section 3(f)(4) of Executive Order 12866. The 
Department has assessed the potential costs and benefits, both 
quantitative and qualitative, of this proposed regulatory action and 
has determined that the benefits would justify the costs.
    The Department has also reviewed this proposed regulation under 
Executive Order 13563,\13\ which supplements and explicitly reaffirms 
the principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
Executive Order 13563 requires that an agency--
---------------------------------------------------------------------------

    \13\ Executive Order on Improving Regulation and Regulatory 
Review, Exec. Order No. 13563, 76 FR 3821 (Jan. 18, 2011), https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
---------------------------------------------------------------------------

    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    Pursuant to Executive Order 13563, the Department believes that the 
benefits of this proposed regulation justify its costs. In choosing 
among alternative regulatory approaches, the Department selected the 
approach that maximizes net benefits. Based on the analysis that 
follows, the Department believes that the proposed regulation is 
consistent with the principles in Executive Order 13563.
    The Department also has preliminarily determined that this 
regulatory action would not unduly interfere with State, local, or 
Tribal governments in the exercise of their governmental functions.
    This RIA discusses the need for regulatory action, the potential 
costs and benefits, assumptions, limitations, and data sources, as well 
as regulatory alternatives considered.

1. Need for Regulatory Action

    In 2021, the President directed the Department in both Executive 
Order 13988 \14\ and Executive Order 14021 \15\ to review its current 
regulations implementing Title IX for consistency with Title IX's 
statutory prohibition on sex discrimination by a recipient of Federal 
financial assistance in its education program or activity. Consistent 
with those Executive orders, the Department reviewed the current 
regulations based on Federal case law, its experience in enforcement, 
and feedback received by OCR from stakeholders, including during the 
June 2021 Title IX Public Hearing and listening sessions. Over 280 
students, parents, teachers, faculty members, school staff, 
administrators, and other members of the public provided live comments 
during the June 2021 Title IX Public Hearing, and OCR also received 
over 30,000 written comments in connection with the hearing. In

[[Page 22879]]

addition, OCR conducted listening sessions with stakeholders expressing 
a variety of views, including individuals and organizations focused on 
Title IX and athletics. Among these stakeholders were athletic 
associations; student-athletes; parents; organizations representing 
elementary schools, secondary schools, and postsecondary institutions 
(or institutions of higher education (IHEs)); organizations 
representing teachers, administrators, parents, and current and former 
student-athletes; attorneys representing students and schools; State 
officials; Title IX Coordinators and other school administrators; and 
individuals who provide Title IX training to schools.
---------------------------------------------------------------------------

    \14\ Executive Order on Preventing and Combating Discrimination 
on the Basis of Gender Identity or Sexual Orientation, Exec. Order 
No. 13988, 86 FR 7023 (Jan. 25, 2021).
    \15\ Executive Order on Guaranteeing an Educational Environment 
Free from Discrimination on the Basis of Sex, Including Sexual 
Orientation and Gender Identity, Exec. Order No. 14021, 86 FR 13803 
(Mar. 11, 2021).
---------------------------------------------------------------------------

    Based on this review, the Department proposes amending its 
regulations to set out a standard that would govern a recipient's 
adoption or application of sex-related criteria that would limit or 
deny a student's eligibility to participate on a male or female 
athletic team consistent with their gender identity. The Department 
received feedback from many stakeholders during the June 2021 Title IX 
Public Hearing and listening sessions and through correspondence asking 
the Department to clarify Title IX's application to students' 
eligibility to participate on male or female athletic teams and urging 
adoption of a variety of positions.
    The Department proposes amending its Title IX regulations to 
address stakeholder concerns and anticipates that the proposed 
regulation would result in many benefits to recipients, students, 
employees, and others, including by providing clarity to help ensure 
compliance with Title IX's nondiscrimination requirement by recipients 
that seek to adopt or apply sex-related criteria to determine student 
eligibility to participate on male or female teams consistent with 
their gender identity.

2. Discussion of Costs, Benefits, and Transfers

    The Department has analyzed the costs and benefits of complying 
with the proposed regulation. Although many of the associated costs and 
benefits are not readily quantifiable, the Department believes that the 
benefits derived from the proposed regulation would outweigh the 
associated costs. The Department acknowledges the interest of some 
stakeholders in preserving certain recipients' current athletic-team 
policies and procedures regarding sex-related eligibility criteria and 
in avoiding potential additional costs to comply with the proposed 
regulation. However, the Department believes the current regulations 
are not sufficiently clear to ensure Title IX's nondiscrimination 
requirement is fulfilled if a recipient adopts or applies sex-related 
criteria that would limit or deny students' eligibility to participate 
on male or female athletic teams consistent with their gender identity. 
The Department expects that a primary benefit of the proposed 
regulation would be to provide greater clarity to recipients and other 
stakeholders about the standard that a recipient must meet under Title 
IX if it adopts or applies sex-related criteria that would limit or 
deny a student's eligibility to participate on a male or female 
athletic team consistent with their gender identity and, as a result, 
to protect students' equal opportunity to participate on male and 
female teams consistent with Title IX.
    Title IX applies to approximately 18,000 local education agencies 
(LEAs) and over 6,000 IHEs. Due to the number of affected entities, the 
variation in likely responses, and the limited information available 
about current practices, the Department is not able to precisely 
estimate the likely costs, benefits, and other effects of the proposed 
regulation. The Department specifically invites public comment on data 
sources that would provide additional information on the issues that 
are the subject of this Athletics NPRM, information regarding the 
number of recipients operating male or female teams in intramural or 
club sports, and time estimates for the activities described in the 
Developing the Model (Section 2.B.2) discussion of the RIA, 
disaggregated by type of recipient. Despite these limitations and based 
on the best available evidence as discussed below, the Department 
estimates that this proposed regulation would result in a net cost to 
recipients of between $23.4 million to $24.4 million over 10 years.
    The assumptions, data, methodology, and other relevant materials, 
as applicable, on which the Department relied in developing its 
estimates are described throughout this RIA.

2.A. Benefits of the Proposed Regulation

    The Department believes that the proposed regulation would provide 
numerous important benefits but also recognizes that it is not able to 
quantify these benefits at this time. Despite the lack of quantitative 
data available, however, it is the Department's current view that the 
benefits are substantial and far outweigh the estimated costs of the 
proposed regulation.
    In particular, the Department's current view is that the proposed 
regulation would benefit educational institutions and their students 
and applicants for admission by providing greater clarity about the 
standard a recipient must meet if it adopts or applies sex-related 
criteria that would limit or deny a student's eligibility to 
participate on a male or female athletic team consistent with their 
gender identity. The Department expects that the clarity provided by 
the proposed regulation would reduce the likelihood of sex 
discrimination in students' opportunities to participate on male or 
female teams offered by a recipient. By reducing the sex discrimination 
resulting from confusion surrounding the permissibility of sex-related 
eligibility criteria, it is the Department's view that the proposed 
regulation would produce a demonstrable benefit for educational 
institutions and their students. The Department anticipates these 
benefits would be realized by helping protect students' equal 
opportunity to participate on male and female teams consistent with 
Title IX, along with the associated health and other benefits to 
students who are able to participate as a result of the proposed 
regulation's clarity on Title IX's requirements. The Department further 
anticipates that the proposed regulation would benefit recipients by 
helping recipients understand their obligations, thereby supporting 
their efforts to provide equal athletic opportunity regardless of sex 
in their athletic programs, as Title IX requires.
    Youth participation in athletics is associated with many physical, 
emotional, academic, and interpersonal benefits for students, including 
increased cognitive performance and creativity, improved educational 
and occupational skills, higher academic performance and likelihood of 
graduation from a 4-year college, improved mental health, and improved 
cardiovascular and muscle fitness, as well as reduced risk of cancer 
and diabetes, and has the potential to help students develop traits 
that benefit them in school and throughout life, including teamwork, 
discipline, resilience, leadership, confidence, social skills, and 
physical fitness. See President's Council on Sports, Fitness & 
Nutrition Sci. Bd., Benefits of Youth Sports (Sept. 17, 2020), https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf.
    There is also evidence suggesting that allowing transgender 
children to socially transition (i.e., present themselves in everyday 
life consistent with their gender identity) is associated with positive 
mental health outcomes for those children. Kristina Olson et al., 
Mental Health of Transgender Children Who Are Supported in Their 
Identities,

[[Page 22880]]

137 Pediatrics 3 (March 2016), https://publications.aap.org/pediatrics/article/137/3/e20153223/81409/Mental-Health-of-Transgender-Children-Who-Are. Ensuring that transgender students have the opportunity to 
participate on male or female teams consistent with their gender 
identity can be part of a transgender student's social transition and 
is thus a crucial benefit to those students' health and well-being.
    In addition, though the data quantifying the economic impacts of 
sex discrimination are limited, the Department recognizes that sex 
discrimination causes harm to students, including when such 
discrimination results in students being limited in or excluded from 
the opportunity to participate in athletics consistent with their 
gender identity and thereby effectively deprived of the many positive 
benefits of participation in team sports. See, e.g., Hecox, 479 F. 
Supp. 3d at 987 (finding State law caused harm in that it would deny a 
transgender woman the opportunity to participate on women's team and 
subject her to the State's moral disapproval of her identity); Utah 
High Sch. Activities Ass'n, 2022 WL 3907182, at *9 (finding immediate 
harm caused by State law banning transgender girls from participating 
in sports consistent with their gender identity).

2.B. Costs of the Proposed Regulation

    The analysis below reviews the Department's data sources, describes 
the model used for estimating the likely costs associated with the 
proposed regulation, and sets out those estimated costs. The costs 
described below are not intended to reflect the exact burden on any 
given recipient, but instead intended to reflect an average burden 
across all recipients. Specific entities may experience higher or lower 
costs than those estimated below as a result of this proposed 
regulation. Due to limited quantitative data, the Department emphasizes 
that the monetary estimates reflect only the likely costs of this 
proposed regulatory action and do not seek to quantify, in monetary 
terms, the costs of sex discrimination. There are limited data 
quantifying the economic impacts of sex discrimination in athletics, 
and the Department invites comment on suggestions for any data sources 
that would provide additional information.

2.B.1. Establishing a Baseline

    As an initial matter, the analysis that follows separately 
discusses the effects of the proposed regulation on elementary and 
secondary education (ESE) entities and postsecondary education or IHE 
entities. For purposes of this analysis, ESE and IHE entities include 
educational institutions as well as other entities, such as national 
athletic associations and sport governing bodies, that are involved in 
the adoption or application of sex-related eligibility criteria for 
students participating on a recipient's male or female athletic teams. 
The Department analyzes the costs associated with the proposed 
regulation separately for ESE and IHE entities and views this as the 
best approach for cost analysis because ESE and IHE entities are 
organized and operate differently, and the costs the proposed 
regulation would impose on recipients are distinct at these levels, as 
explained below.
    Athletic competition and its governance vary between the ESE and 
IHE contexts, with most ESE interscholastic competition governed by 
State-specific athletic associations, while much intercollegiate 
competition in the United States occurs under the auspices of only a 
handful of athletic associations, the largest of which is the NCAA. 
Under the proposed regulation, a recipient would be permitted to adopt 
or apply sex-related eligibility criteria that would limit or deny a 
student's eligibility to participate on a male or female athletic team 
consistent with their gender identity if those criteria, for each 
sport, level of competition, and grade or education level (i) are 
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. The Department anticipates that 
the costs associated with implementing the proposed regulation--such as 
reviewing, adopting, and implementing policies, and training staff--
would best align according to whether an entity is an ESE or IHE 
entity.
    With respect to ESE entities, the Department anticipates that the 
same entities (e.g., LEAs, State education associations, and State 
athletic associations) would generally review and respond to the 
regulation for elementary school, middle school, and high school, and, 
in doing so, would likely address the full range of affected students 
in any subsequent review or revision of policies. For this reason, the 
Department projects costs for ESE entities in one category, even though 
an entity may opt to adopt or apply different eligibility criteria for 
sex-separate teams in high school, for example, than for students in 
elementary school and middle school. To separate these entities into 
different categories for the purpose of projecting costs would unduly 
confound estimates. For example, there are not separate burdens 
associated with the time and effort an LEA athletic director may spend 
reading and understanding the regulation's application to all students 
in the LEA. Instead, the athletic director would likely read and 
understand the regulation in its entirety. That LEA athletic director 
would then develop policies and practices that comply with the 
regulation, possibly differentiating sex-related eligibility criteria 
for male and female teams for different sports, levels of competition, 
and grades or education levels, while ensuring that the criteria 
minimize harms to students. Similarly, the Department anticipates that 
a State athletic association with membership comprised of LEAs that 
serve students in grades pre-K through 12 would review the regulation 
as a whole and set policies for its member entities' participation in 
interscholastic competition that align with the regulatory 
requirements.
    In light of these factors, the Department believes it is reasonable 
to project costs by dividing the cost analyses between ESE and IHE 
entities. The Department notes that, in light of how athletic 
competition is structured at both the ESE and IHE levels, some entities 
that would not otherwise be subject to the proposed regulation may 
nonetheless be affected by its promulgation as a result of actions by 
third parties. As noted above, most athletic competition is organized 
by State athletic associations at the ESE level or under the auspices 
of the NCAA or similar national athletic associations at the IHE level. 
It is possible that a State athletic association or relevant governing 
body would require all of its members, including a private high school, 
to comply with eligibility and participation criteria that the 
association sets. The Department thus acknowledges that the 
implementation of the proposed regulation by these athletic 
associations may indirectly affect entities that are not directly 
subject to the proposed regulation. The Department does not currently 
have sufficient data to estimate the likelihood of these effects or 
their impact and seeks specific public comment on these issues.
Athletic Competition in ESE Entities
    In the 2020-2021 school year, according to data from the National 
Center on Education Statistics, there were 18,259 LEAs in the United 
States with either a nonzero enrollment or at

[[Page 22881]]

least one operational school.\16\ Of the 18,083 LEAs for which the 
Department has data on the relevant variables,\17\ 4,383 do not serve 
students in grades 9 through 12. Many of these are single school LEAs, 
such as charter schools. The Department assumes that these LEAs will 
continue to serve only students in elementary or middle school moving 
forward. Of the remaining LEAs, 1,268 only serve students in grades 9 
through 12. Most LEAs (11,661) serve students in pre-kindergarten or 
kindergarten through 12th grade.
---------------------------------------------------------------------------

    \16\ In the 2020-2021 school year, 91 ESE entities had nonzero 
enrollments and zero operational schools. For purposes of this 
analysis, the Department assumes these entities operate like other 
LEAs, although several appear to be regional education services 
agencies or intermediate school districts where the named entity 
itself, while enrolling students, may not directly provide education 
to students. In that same year, 531 ESE entities had operational 
schools either with zero enrollment or no enrollment data available. 
A number of these entities are charter schools that may have been in 
the process of opening or closing, and it is unclear whether they 
will serve students in future years. Inclusion of these two groups 
of entities will likely result in an over-estimate of the potential 
costs of the proposed regulation.
    \17\ This total excludes one LEA providing only adult education 
services and 68 LEAs serving only ungraded students.
---------------------------------------------------------------------------

    The Department generally assumes that, to the extent LEAs offer 
separate male and female intramural athletic teams, they generally 
establish eligibility criteria for participation on those teams at the 
LEA level even if the policies differ by sport, level of competition, 
or grade or education level.
    For interscholastic athletic competition, eligibility is generally 
governed by State-specific athletic associations. The Department 
reviewed existing, publicly available State athletic associations' 
policies on sex-related eligibility criteria for students' 
participation on male or female teams for each of the 50 States, Puerto 
Rico, and the District of Columbia.\18\ This review was conducted for 
the purpose of informing this Athletics NPRM; the Department has not 
evaluated these policies to determine whether they would comply with 
the proposed regulation or current statutory or regulatory Title IX 
requirements. The Department observed that State athletic association 
policies range from those that allow all students to participate on 
male or female athletic teams consistent with their gender identity to 
those that categorically exclude transgender students from 
participating on male or female athletic teams consistent with their 
gender identity. The Department further observed additional variation 
among State athletic association policies that establish some criteria 
for determining when a student is eligible to participate on a specific 
male or female athletic team consistent with their gender identity. For 
example:
---------------------------------------------------------------------------

    \18\ The Department notes that State athletic association 
policies on this topic continue to be updated.
---------------------------------------------------------------------------

     Approximately 20 percent of State athletic association 
policies currently allow students to participate on male or female 
athletic teams consistent with their gender identity without 
establishing additional criteria or eligibility requirements beyond 
those that apply to all student-athletes, such as attendance or 
academic achievement.
     Approximately 25 percent of State athletic associations 
generally permit participation consistent with students' gender 
identity and have established some criteria or eligibility requirements 
for participation, such as various types of documentation (examples 
include a written statement from the student, their parent or guardian, 
health care or treatment provider, a community member or teacher 
identifying the student's consistent gender identity).
     Approximately 20 percent of State athletic associations 
require students who wish to participate consistent with their gender 
identity to meet additional criteria prior to participation. Of those 
athletic associations that impose additional requirements, the vast 
majority (approximately three-quarters of this group) adopted different 
policies for male and female teams--many of which require transgender 
girls to satisfy additional criteria prior to participating on a female 
team consistent with their gender identity.
     The remaining State athletic associations have adopted a 
range of policies imposing criteria that severely limit most or all 
transgender students from participating on male or female athletic 
teams consistent with their gender identity.
    In addition to variations among State athletic associations 
regarding the criteria for participation on male or female athletic 
teams, the Department observed variations among State athletic 
associations regarding the eligibility decision process for 
participation on male or female athletic teams. In nearly half of 
States, athletic association policies leave decisions regarding 
eligibility to the school or to the school and the student-athlete. In 
approximately 30 percent of States, the athletic association is 
involved in determining eligibility, either alone or in conjunction 
with the school.
    In general, the Department found that State athletic association 
policies are silent on the issue of students in elementary school. With 
respect to middle school, the Department found that about half of State 
athletic associations regulate athletic competition at that level, but 
only approximately 35 percent of State athletic associations have 
policies addressing those students' participation in athletic 
competition consistent with their gender identity. The remaining State 
athletic associations are either silent on this issue or explicitly 
defer to the school or LEA for policies affecting students in middle 
school.
    The Department notes that most States do not have laws prescribing 
sex-related eligibility criteria for recipients' male and female 
athletic teams. The Department also notes that at least two States have 
enacted laws or regulations requiring LEAs to allow ESE students to 
participate in athletics consistent with their gender identity. Twenty 
States have enacted laws that, to varying degrees, explicitly require 
that student-athletes participate on male or female athletic teams 
consistent with their sex assigned at birth. The Department anticipates 
athletic associations in some States may adopt policies that align with 
State law before the Department promulgates its final regulation. The 
Department further notes that some State laws are currently subject to 
litigation that may affect their continued applicability. See, e.g., 
B.P.J., No. 23-1078 (4th Cir. Feb. 22, 2023) (staying the district 
court's dissolution of preliminary injunction barring enforcement 
against plaintiff of West Virginia law requiring students to 
participate on athletic teams consistent with ``biological sex'' 
pending appeal); Hecox, 479 F. Supp. 3d at 978-85 (granting preliminary 
injunction barring implementation of Idaho law that excludes 
transgender girls and women from participating in athletics consistent 
with their gender identity based on strong likelihood the law violates 
the Equal Protection Clause); Barrett v. State, Cause No. DV-21-581B 
(Mont. 18th Jud. Dist. Sept. 14, 2022) (finding Montana law that 
restricts participation of transgender students in public institutions' 
athletic programs violates State constitution by infringing on public 
university's ``authority to oversee student groups and activities''), 
appeal docketed, No. DA 22-0586 (Mont. Oct. 13, 2022); Utah High Sch. 
Activities Ass'n, 2022 WL 3907182, at *1, *9 (granting preliminary 
injunction to enjoin enforcement of Utah law that ``effectively bans 
transgender girls from competing in pre-college school-related girls 
sports,'' based on strong likelihood the law violates the State 
constitution).
    In the absence of the clarity that the proposed regulation would 
provide, the Department assumes that States, LEAs,

[[Page 22882]]

schools, and State athletic associations would continue to implement 
varying policies for students in elementary and secondary education, 
with a small subset adopting criteria that would not limit or deny the 
participation of transgender students on male or female athletic teams 
consistent with their gender identity and a small subset adopting 
criteria that would substantially limit or deny transgender students 
from participating on male or female athletic teams consistent with 
their gender identity. The Department also assumes that almost all of 
the remaining States (approximately half) would have policies that 
establish minimal criteria for the participation of transgender 
students in high school athletics consistent with their gender identity 
(e.g., a written statement from the student or someone on their behalf 
confirming the student's consistent gender identity). The Department 
seeks specific public comment on the reasonableness of this assumption.
Athletic Competition in IHE Entities
    In the 2020-2021 school year, according to data from the National 
Center on Education Statistics, there were 6,045 IHEs participating in 
programs under Title IV of the Higher Education Act of 1965, 20 U.S.C. 
1001 et seq. (1965), such as Loans, Federal Work Study, and Pell 
grants. Except as described above, the Department assumes this 
represents the universe of potentially impacted IHE entities. Of those, 
1,689 IHEs offered an educational program that was less than 2 years in 
duration (i.e., below the associate's level), 1,602 offered a program 
of at least 2 but less than 4 years, and 2,754 offered a program of 4 
or more years. In total, these institutions enrolled approximately 14.8 
million full-time equivalent (FTE) students in fall 2020. Approximately 
1 percent of students attended less-than-2-year IHEs, approximately 20 
percent attended 2- to 4-year institutions, and approximately 79 
percent attended at least 4-year institutions (hereinafter referred to 
as ``4-year institutions'').

          Table 1--Institutions of Higher Education by Level of Institutions and Enrollment, Fall 2020
----------------------------------------------------------------------------------------------------------------
                                                                                    % of total
              Level of institution                   Number of    Total fall FTE     fall FTE      Average fall
                                                     entities       enrollment      enrollment    FTE enrollment
----------------------------------------------------------------------------------------------------------------
Less-than-2-Year................................           1,689         228,448               1             138
2- to 4-Year....................................           1,602       2,905,048              20           1,843
4 or more Years.................................           2,754      11,617,659              79           4,317
                                                 ---------------------------------------------------------------
    Total.......................................           6,045      14,751,155             100           2,490
----------------------------------------------------------------------------------------------------------------

    In general, the Department assumes that less-than-2-year 
institutions, which include many trade and technical programs (e.g., 
cosmetology, HVAC repair, dental assistant) do not engage in 
interscholastic athletic competition or operate intramural athletic 
programs. The Department seeks specific public comment on the extent to 
which less-than-2-year IHEs would be impacted by the proposed 
regulation.
    The Department generally assumes that approximately 50 percent of 
2- to 4-year IHEs operate intramural teams, some or all of which are 
male or female teams, and that the IHEs establish policies governing 
those programs.
    For intercollegiate athletic competition, eligibility is generally 
governed by national athletic associations, as described above. For 
purposes of this analysis, the Department assumes that each athletic 
association independently adopts and applies criteria to determine the 
eligibility of students to participate on male or female teams 
consistent with their gender identity. The Department annually collects 
data on whether IHEs are members of such associations. Of the 3,989 
IHEs for which the Department has data,\19\ 1,986 were members of a 
national athletic association in the 2020-2021 school year. Of those 
IHEs, 1,526 were 4-year institutions and 460 were 2- to 4-year 
institutions.
---------------------------------------------------------------------------

    \19\ Data are not available for 312 2- to 4-year institutions 
and 55 4-year institutions.

  Table 2--Selected Characteristics by National Athletic Association Membership and Level of Institution, Fall
                                                      2020
----------------------------------------------------------------------------------------------------------------
                                                    Member of National Athletic      Not a member of National
                                                            Association                Athletic Association
              Level of institution               ---------------------------------------------------------------
                                                                      Average                         Average
                                                      Number        enrollment        Number        enrollment
----------------------------------------------------------------------------------------------------------------
2- to 4-Year IHE................................             460           3,223             830           1,641
4-Year IHE......................................           1,526           6,440           1,173           1,542
                                                 ---------------------------------------------------------------
    Total.......................................           1,986           5,695           2,003           1,583
----------------------------------------------------------------------------------------------------------------


[[Page 22883]]


     Table 3--Percentage of IHEs That are Members of National Athletic Associations by Level and Control of
                                             Institution, Fall 2020
----------------------------------------------------------------------------------------------------------------
                                                                   2- to 4-Year     4-Year IHEs
                                                                     IHEs (%)           (%)       All levels (%)
----------------------------------------------------------------------------------------------------------------
Public..........................................................              55              77              65
Private Non-Profit..............................................               7              57              54
Private For Profit..............................................               0               7               3
All Sectors.....................................................              36              43              50
----------------------------------------------------------------------------------------------------------------

    As part of its annual data collection, the Department gathers 
information on membership in five specific national athletic 
associations (referred to below as the ``five named athletic 
associations''). IHEs reported membership in the five named athletic 
associations for the 2020-2021 school year as follows:
     The National Collegiate Athletic Association (NCAA)--1,108 
IHEs;
     The National Association of Intercollegiate Athletics 
(NAIA)--250 IHEs;
     The National Junior College Athletic Administration 
(NJCAA)--498 IHEs;
     The National Small College Athletic Association (NSCAA)--
43 IHEs; and
     The National Christian College Athletic Association 
(NCCAA)--89 IHEs.
    Also as part of its data collection, the Department permits IHEs to 
report membership in national athletic associations other than the five 
named athletic associations. For the 2020-2021 school year, 138 IHEs 
reported that they were members of an athletic association other than 
the five named athletic associations. The Department does not have data 
on the specific athletic associations to which these IHEs belong. For 
purposes of this analysis, the Department assumes two additional 
national athletic associations, beyond the five named athletic 
associations, would be required to review policies pursuant to the 
proposed regulation if it were to be promulgated. The Department seeks 
specific public comment on this estimate.
    As explained in the discussion of the proposed regulation, in 
January 2022, the NCAA replaced its longtime rules for transgender 
student-athlete participation and adopted a sport-by-sport approach 
that defers to the eligibility criteria set by national governing 
bodies--e.g., USA Swimming, USA Gymnastics--subject to review by the 
NCAA's Committee on Competitive Safeguards and Medical Aspects of 
Sports. Some of these national groups look to international 
organizations such as FINA and International Gymnastics Federation 
(FIG), which set criteria for participation in international 
competitions involving elite athletes. See, e.g., USA Swimming, Athlete 
Inclusion, Competitive Equity, and Eligibility Policy at 4-5 (Mar. 10, 
2023), https://www.usaswimming.org/docs/default-source/governance/governance-lsc-website/rules_policies/usa-swimming-policy-19.pdf 
(noting that athletes who wish to compete in a World Aquatics 
Competition must meet the eligibility criteria in the World Aquatics 
Policy, which ``are potentially more difficult to satisfy than'' the 
USA Swimming policy); USA Gymnastics, Transgender & Non-Binary Athlete 
Inclusion Policy at 3 (Apr. 2022), https://www.usagym.org/PDFs/About%20USA%20Gymnastics/transgender_policy.pdf (noting that elite 
athletes who are transgender must satisfy requirements for 
participation set by the FIG and IOC). Taking these elite international 
competition criteria into account, some national governing bodies have 
developed eligibility criteria that differ based on levels of 
competition, with certain criteria applying only to athletes who seek 
to compete internationally or in nationally recognized record-setting 
events. In addition, eligibility criteria vary by sport. Some 
international governing bodies permit transgender women to compete at 
elite levels if they satisfy specific testosterone suppression 
criteria. See, e.g., Union Cycliste Internationale, UCI Eligibility 
Regulations. Others exclude from elite competition transgender women 
who have experienced any aspect of male puberty. See, e.g., FINA Policy 
on Eligibility. Some sport governing bodies have not yet updated their 
policies or their criteria for determining transgender students' 
participation remain under review. For example, World Lacrosse 
announced it is reviewing and revising its eligibility criteria for 
everyone involved in the sport, including transgender athletes, to 
create a policy that ensures that ``everyone has a right to safely 
participate in sport while maintaining fair competition.'' World 
Lacrosse, World Lacrosse Forms Partnership with National Center for 
Transgender Equality to Create Trans-Inclusive Participation Policy 
(June 9, 2022), https://worldlacrosse.sport/article/world-lacrosse-forms-partnership-with-national-center-for-transgender-equality/. The 
Department generally assumes that national and international governing 
bodies will continue to revise their policies in the coming years and 
that most or all will seek to develop policies that, in their view, 
maximize athletes' participation consistent with gender identity while 
ensuring fair and safe competition.

2.B.2. Developing the Model

Athletic Competition in ESE Entities
    In general, the Department assumes that only LEAs that offer male 
and female athletic teams would be directly affected by the proposed 
regulation. As part of the 2017-2018 Civil Rights Data Collection, 
schools in approximately 60 percent of LEAs submitting responses 
indicated that they operated one or more male or female athletic teams. 
For purposes of this analysis, the Department assumes approximately 60 
percent of all LEAs offer sex-separate athletic teams, for an estimated 
10,849 affected LEAs.
    As noted above, although recipient LEAs would be subject to the 
proposed regulation, they generally do not independently establish 
requirements for participation in interscholastic competition. Instead, 
LEAs typically participate as members in State athletic associations, 
which generally establish these requirements. Regardless, the 
Department notes that recipient LEAs must comply with Title IX and the 
obligation to do so is not alleviated by any contrary athletic 
association rule. See 34 CFR 106.6(c). Because of this obligation, the 
Department believes that many LEAs, as members of State athletic 
associations, would communicate with their State's athletic association 
about the Department's proposed regulation. As a result, the Department 
believes it is reasonable to assume that State athletic associations 
would review and

[[Page 22884]]

consider revising their policies on this issue.
    Also as noted above, the Department has not evaluated existing 
State athletic association policies governing interscholastic athletics 
to determine whether they would comply with the proposed regulation. 
However, the Department assumes that a range of policies would comply 
with the proposed regulation. On the other hand, a State athletic 
association policy with restrictive sex-related eligibility criteria 
that complies with the proposed regulation in the context of a 
particular sport (e.g., a sport with significant physical contact) may 
not comply in the context of a different sport (e.g., one with little 
or no physical contact) if, for example, a recipient cannot demonstrate 
how its sex-related criteria are substantially related to achievement 
of an important educational objective in the context of that particular 
sport and minimize harms to students whose opportunity to participate 
on a male or female team consistent with their gender identity would be 
limited or denied by the criteria. As a result, the Department 
anticipates that all LEAs and all athletic associations will undertake 
at least some level of review of their existing policies or the 
policies of associations to which they belong. The Department does not 
assume the adoption, elimination, or modification of any specific 
policy.
    The Department believes that the proposed regulation would render 
State athletic associations that currently prevent transgender students 
from participating on male or female teams consistent with their gender 
identity more likely than others to conduct intensive reviews of their 
existing policies. The Department anticipates this result because 
athletic association policies that would limit or deny students' 
eligibility to participate on male or female teams consistent with 
their gender identity would be more likely to raise questions from 
member LEAs, student-athletes, and families regarding compliance with 
Title IX. The Department assumes many of these State athletic 
associations, or their member LEAs, would engage in some revision to 
ensure their policies comply with the regulation. By contrast, the 
Department generally assumes that the 20 percent of State athletic 
associations that currently allow students to participate on male or 
female athletic teams consistent with their gender identity would be 
less likely to engage in intensive review of their policies and 
implement revisions than other States. For purposes of this analysis, 
the Department assumes the following:
     All LEAs, including those that do not offer athletic 
teams, will engage in an initial review of the rule;
     In 20 percent of States, the State athletic association 
and LEAs offering athletic teams whose policies already permit students 
to participate on male or female teams consistent with their gender 
identity will undertake a review but would be unlikely to revise their 
existing policies;
     In 20 percent of States, the State athletic association 
and LEAs offering athletic teams whose policies impose requirements 
that enable most or all transgender students to participate consistent 
with their gender identity will undertake a more intensive review but 
would also be unlikely to revise their existing policies; and
     In 60 percent of States, the State athletic association 
and LEAs offering athletic teams whose policies prohibit or 
significantly restrict participation by transgender students consistent 
with their gender identity will undertake a more intensive review and 
will revise their existing policies.
    The Department anticipates that the 60 percent of State athletic 
associations and LEAs in this final category will experience burdens 
associated with revising their policies for a variety of reasons. Some 
of these associations may have more complex policy structures than 
others (e.g., different policies for different sports as opposed to a 
single policy affecting all sports). Others may have particular 
bureaucratic structures (e.g., standing review panels), public 
participation requirements (e.g., 45 days of public comment), or assent 
requirements (e.g., a certain percentage of member LEAs must agree to 
any policy change). The Department seeks specific public comment on the 
extent to which such structures or requirements may exist and where, 
how they would impact the estimates included here, and whether, as a 
result, it would be appropriate for the Department to subdivide this 
final category to account for variation in the field.
    The Department recognizes that LEAs are not evenly distributed 
across States and, therefore, the policies of a single State athletic 
association could affect more LEAs than the policies of multiple other 
State athletic associations that serve a smaller number of schools. 
However, for purposes of this analysis, the Department assumes that, if 
45 percent of State athletic associations implement a particular 
policy, 45 percent of LEAs offering athletic teams would be affected. 
More specific estimates would require the Department to develop 
independent estimates for specific States or groups of States and then 
correlate those State-specific effects and responses to estimates of 
the number of LEAs offering athletic teams in each State. There is not 
enough information available to the Department to develop reliable 
estimates at this level of granularity, and therefore the Department 
assumes an equal distribution of LEAs.
    The Department also assumes that State athletic associations engage 
in periodic reviews and updates to their policies. Although the 
proposed regulation would not require such reviews, the Department 
believes the proposed regulation would likely factor into these 
reviews. The Department assumes any subsequent review of policies in 
this area would be unlikely to occur for several years after the 
initial review to determine compliance with the proposed regulation, 
but also assumes that approximately five State athletic associations 
would review these policies each year thereafter. Of those, the 
Department estimates approximately one State athletic association would 
engage in a policy revision each year. The Department requests specific 
public comment on the extent to which State athletic associations are 
likely to engage in a review of these policies and on what timeline 
such reviews may occur.
    Finally, as noted above, in the vast majority of States, 
determinations regarding eligibility of particular student-athletes are 
made at the local level (i.e., school or LEA). The Department assumes 
State athletic associations, once they have revised their policies, 
will train LEA staff (e.g., athletic directors) to make those 
determinations. LEA staff in these positions likely already receive 
regular training from the State athletic association; therefore, the 
Department assumes that any training regarding eligibility 
determinations would likely supplant other training, or time devoted to 
other topics would be adjusted to make time to train LEA staff on this 
topic.
    The Department also notes the relatively low number of transgender 
student-athletes relative to the overall population of student-
athletes. See, e.g., Hecox, 479 F. Supp. 3d at 982 (noting the 
``incredibly small percentage of transgender women athletes''). To the 
extent additional training is required beyond the standard training to 
all athletic directors and staff, the Department anticipates that it 
will be conducted on an ad hoc basis as necessary. The Department 
therefore assumes that there will be no additional time burdens above 
baseline associated with training in future years.

[[Page 22885]]

Athletic Competition in IHE Entities
    In general, the Department assumes that only IHEs offering separate 
male and female athletic teams would be directly affected by the 
proposed regulation. However, the Department is unaware of any 
comprehensive data source on the number of IHEs that offer such teams, 
including in club and intramural athletics. Based on the information in 
Establishing a Baseline (Section 2.B.1) above, the Department assumes 
that participation varies by entity type, including whether an 
institution is public or private, and size, among other factors. For 
example, the Department assumes that less-than-2-year private, for-
profit IHEs, such as those offering cosmetology or other specific 
career training programs, are less likely than 4-year IHEs to offer 
athletic teams. The Department requests specific public comment on the 
extent to which any high-quality data sources exist regarding IHE 
offerings of athletic teams, beyond the data from the National Center 
for Education Statistics cited above, and the extent to which such data 
can be used for this analysis.
    As noted above, although all IHEs that are recipients of Federal 
financial assistance would be subject to the proposed regulation, they 
generally do not independently establish requirements for participation 
in intercollegiate competition. Instead, IHEs typically participate as 
members of one or more national athletic associations, which generally 
establish these requirements. However, the Department notes that 
recipient IHEs, like all recipients of Federal funds, must comply with 
Title IX and the obligation to do so is not alleviated by any contrary 
athletic association rule. See 34 CFR 106.6(c). Because of this 
obligation, the Department assumes that many IHEs would advocate, as 
members of one or more national athletic associations, to ensure that 
their associations' policies related to students' participation 
consistent with their gender identity comply with the Department's 
regulation. As a result, the Department believes it is reasonable to 
assume that national athletic associations would review and, as 
necessary, revise their policies to comply with the proposed regulation 
on this issue.
    For purposes of this analysis, the Department has not evaluated 
existing policies governing intercollegiate athletics such as national 
athletic association policies to determine whether they would comply 
with the proposed regulation. However, the Department assumes that due 
to the nature of the proposed regulation and the potential implications 
of non-compliance with Title IX for their members, all national 
athletic associations would engage in some degree of review of their 
policies to comply with the proposed regulation. Further, the 
Department assumes that all IHEs offering athletic teams would spend 
time reviewing their own policies governing athletic participation not 
sponsored by a national athletic association (e.g., intramural sports 
leagues). The Department further assumes that, upon revision of 
policies by a national athletic association, a subset of affected IHEs 
would conduct an independent review of the revised policies to 
independently assess whether the policies are compliant with the 
proposed regulation. The Department assumes that these reviews would 
most likely occur at larger, better-resourced IHEs, with the remainder 
of IHEs assuming that the policies promulgated or approved by their 
respective athletic associations comply with the proposed regulation 
without conducting further analysis. The Department does not assume the 
adoption, elimination, or modification of any specific policy.
    For purposes of this analysis, the Department assumes the 
following:
     All IHEs, including those that do not offer athletic 
teams, will complete an initial review of the proposed regulation;
     Forty percent of IHEs (those offering athletic teams, 
including intercollegiate as well as intramural) will undertake a more 
intensive review of the proposed regulation and their existing 
policies;
     Twenty percent of IHEs will revise their institution-
specific policies (e.g., those governing intramural sports) after 
conducting the more intensive review just described;
     All five named athletic associations and two additional 
athletic associations will extensively review their policies, and of 
those seven athletic associations, four will revise their policies to 
comply with the proposed regulation; and
     As a result of athletic association policy changes, 10 
percent of IHEs will conduct a secondary review of those new athletic 
association policies to assess compliance with the proposed regulation.
    Estimating specific effects the proposed regulation would have on 
IHEs is difficult for a variety of reasons. First, because national 
athletic associations range in size and number of member IHEs, policy 
revisions undertaken by one national athletic association may have more 
far-reaching effects than those of another. Second, of the IHEs 
reporting membership in an athletic association, 132 IHEs reported 
membership in more than one association. Each national athletic 
association would likely have one or more member IHE that is also a 
member of another athletic association. As a result, it is likely that 
associations would establish policies that account for other 
associations' policies and that all associations would have an 
incentive to promote alignment, which would reduce compliance burdens 
on dual-member IHEs. Depending on which associations revise their 
policies, the extent to which they do so, the timing of their 
revisions, and the degree of motivation on the part of other 
associations to align their policies, there could be widely varying 
effects. For example, if the NCAA adopts a significant policy revision 
based on the proposed regulation, that revision would directly affect 
more than half of all IHEs offering athletic teams. This revision may 
also prompt smaller associations to adopt similar policies to align 
with the NCAA, and as a result, nearly all IHEs offering athletic teams 
would be impacted. By contrast, if a small association adopts a policy 
change affecting only a small number of IHEs that are not members of 
additional associations, effects may be limited because other 
associations may choose not to align their policies. The Department 
seeks specific public comment on its analysis and information on how to 
better evaluate the factors that would contribute to the effects of 
policy revisions by one athletic association on the policies of other 
associations.
    The Department assumes that national athletic associations 
periodically review and update their policies. Although the proposed 
regulation would not require periodic reviews, the Department believes 
national athletic associations will consider the proposed regulation in 
their review process. The Department assumes national athletic 
associations are unlikely to review their policies in this area for 
several years after completing their initial review, but thereafter 
assumes that every year there would be approximately two national 
athletic associations that would review these policies. The Department 
assumes that most associations review their policies on a 3-year cycle. 
The Department seeks specific public comment on whether such a timeline 
is reasonable.
    Of those associations that conduct a review, the Department 
estimates that approximately one athletic association will revise its 
policies each year. The Department requests specific public comment on 
the extent to which athletic

[[Page 22886]]

associations are likely to review their policies and on what timeline 
these reviews may occur.
    The Department anticipates that IHE entities will incur minimal 
additional training costs, similar to its projections for ESE entities, 
as a result of the proposed regulation. The Department assumes national 
athletic associations provide annual training to IHE staff (e.g., 
athletic directors) on a range of policy issues, and as a result of the 
proposed regulation, this annual training would cover any new policies. 
The Department assumes that there will be no additional time burdens 
above baseline associated with training in future years. The Department 
seeks specific public comment on the extent to which these estimates 
and assumptions are reasonable.
    Finally, the Department recognizes that this Athletics NPRM comes 
at a time when IHEs that offer intercollegiate athletic teams may be 
affected by changes to national and international sex-related criteria 
for determining students' eligibility to participate on male or female 
teams. It is the Department's current view that by regulating during a 
time when changes are ongoing, the proposed regulation may reduce costs 
by providing some certainty about what regulatory requirements must be 
met on this issue to fulfill a recipient's obligations under Title IX; 
at the same time, because these changes are ongoing, the Department 
cannot predict the nature of future eligibility criteria that may be 
adopted by the NCAA or other national athletic associations with any 
degree of certainty.

2.B.3. Cost Estimates

Athletic Competition in ESE Entities
    The Department estimates that, to comply with the proposed 
regulation, all regulated entities, including those that do not offer 
an athletic program, would take time to review the regulation to 
determine whether it applies to their entity, as the Department 
generally assumes that all regulated entities will have some level of 
interest in the proposed regulation. At the LEA level, the Department 
assumes this initial review, which is limited to determining whether 
the regulation applies, would take an education administrator 
approximately half an hour to complete (at $100.36/hour) \20\ at 18,083 
LEAs, for a total Year 1 cost of $907,400.
---------------------------------------------------------------------------

    \20\ For purposes of this regulatory impact analysis, the 
Department uses wage rates from the U.S. Bureau of Labor Statistics' 
May 2021 National Industry-Specific Occupational Employment and Wage 
Estimates (NAICS 611000--Educational Services), available at https://www.bls.gov/oes/current/naics3_611000.htm. The Department uses a 
loading factor of 2.0 to account for the costs of overhead, 
benefits, and other non-wage expenses.
---------------------------------------------------------------------------

    For State athletic associations and LEAs offering athletic teams, 
the Department assumes those entities in 20 percent of States will 
engage in a less intensive review of their existing policies. The 
Department estimates that all LEAs would also spend time reviewing 
their own policies for intramural and other athletic activities not 
otherwise governed by a State athletic association for compliance with 
the Department's regulation. The Department does not anticipate that 
this review would be burdensome because the Department assumes that 
there are fewer activities of this type. The Department assumes that 
this review would be more burdensome for State athletic associations 
given the number of LEAs and athletic programs implicated. The 
Department welcomes comments on the accuracy of these assumptions. At 
the LEA level, the Department estimates this review would require 2 
hours each from an education administrator \21\ and management analyst 
\22\ ($81.56/hour) at 2,169 LEAs. For State athletic associations, the 
Department estimates that this activity would take 4 hours for an 
education administrator, 4 hours for a management analyst, and 2 hours 
for an attorney ($148.76/hour) at each of 10 associations. In total, we 
estimate that these activities would cost approximately $799,420 in 
Year 1.
---------------------------------------------------------------------------

    \21\ As used in this regulatory impact analysis, the term 
``education administrator'' is intended to encompass staff in 
leadership and senior leadership roles in an organization, such as a 
superintendent, assistant superintendent, or athletic director.
    \22\ As used in this regulatory impact analysis, the term 
``management analyst'' is intended to encompass non-legal program 
and agency staff including, but not limited to, athletic coaches, 
project officers, or athletic department staff.
---------------------------------------------------------------------------

    In the remaining 80 percent of States, the Department estimates 
that LEAs and State athletic associations would engage in a more 
intensive review of their policies on athletic participation because 
their existing policies restrict, to some degree, the participation of 
students on male or female teams consistent with their gender identity. 
This intensive review would be used by LEAs and State athletic 
associations to determine whether existing policies are compliant as 
written or whether the policies would need to be revised to comply with 
the proposed regulation. At the LEA level, the Department estimates 
that this work will take 4 hours each for an education administrator 
and a management analyst in 8,679 LEAs to complete. For State athletic 
associations, the Department estimates that this work would take 6 
hours from an education administrator, 6 hours from a management 
analyst, and 2 hours for one attorney working on behalf of each of 41 
associations. In total, the Department estimates this activity would 
cost approximately $6,372,490 in Year 1.
    The Department estimates that State athletic associations in 
approximately 60 percent of States would opt to revise their existing 
policies upon completing their review. The Department estimates that 
some LEA staff would be involved in this process by, for example, 
commenting on draft proposals or participating in roundtable 
discussions. At State athletic associations, the Department assumes it 
would take less time to revise existing policies than to complete the 
review of the proposed regulation; the Department bases its estimate on 
the assumption that many issues to be addressed would have already been 
identified during the initial review. At the LEA level, the Department 
assumes one education administrator would spend 4 hours at each of 
6,509 LEAs on this task. At the State athletic association level, the 
Department estimates this task would require 4 hours from an education 
administrator, 20 hours from a management analyst, and 12 hours from an 
attorney. In total, the Department estimates it would cost 
approximately $2,731,320 in Year 1 for 31 State athletic associations 
to revise their policies governing students' eligibility to participate 
on male or female teams consistent with their gender identity.
    After policies have been revised, the Department assumes that State 
athletic associations would develop and deliver updated training about 
their new policies to staff in affected LEAs. The Department further 
assumes that developing the training would require 10 hours from a 
management analyst, 10 hours from a lawyer, and 1 hour from an 
education administrator to review and approve the training in each of 
31 associations. The Department anticipates that this training would 
take an additional 30 minutes above existing training obligations for 
an education administrator in each of 6,509 LEAs. In total, the 
Department estimates that updated training would cost approximately 
$401,130 in Year 1.
    In future years, the Department assumes that approximately five 
State athletic associations per year would undertake a review of their 
policies on students' participation consistent with their gender 
identity. The Department assumes this task would require 1 hour from an 
education administrator, 4

[[Page 22887]]

hours from a management analyst, and 2 hours from a lawyer for a total 
cost of approximately $3,620 per year beginning in Year 3.
    Each year, the Department assumes that one of those five 
associations will opt to revise their policies. We estimate that this 
revision would require 4 hours from an education administrator, 16 
hours from a management analyst, and 10 hours from a lawyer for a total 
cost of approximately $3,190 per year beginning in Year 3.
    At the ESE level, the Department estimates that the proposed 
regulation would generate a present value monetized cost of $10.5 to 
$10.9 million over 10 years, assuming a seven percent and three percent 
discount rate, respectively.

Athletic Competition in IHE Entities

    The Department estimates that to comply with the proposed 
regulation, all regulated entities, including those that do not offer 
an athletic program, would take time to review the proposed regulation 
to determine whether it applies to their entity, because the Department 
generally assumes that all regulated entities will have some level of 
interest in the proposed regulation. At the IHE level, the Department 
assumes this initial review, which is limited to determining whether 
the regulation applies, would take an education administrator 
approximately 1 hour to complete at each of 6,045 IHEs for a total Year 
1 cost of $607,580.
    For IHEs offering athletic teams, the Department estimates that 
these entities would spend time reviewing their own policies regarding 
participation in athletics for compliance with the proposed regulation. 
At the IHE level, the Department estimates this internal policy review 
would require 8 hours from an education administrator, 8 hours from a 
management analyst, and 6 hours for an attorney working on behalf of 
each of 2,148 IHEs. In total, the Department estimates that these 
activities would cost approximately $5,043,330 in Year 1.
    The Department further estimates that approximately 20 percent of 
IHEs would, as a result of their internal policy review, opt to make 
revisions to their policies. The Department estimates that such 
revisions would require 4 hours from one education administrator, 30 
hours from a management analyst, and 16 hours from an attorney at each 
of 1,210 IHEs. In total, the Department estimates that these activities 
would have a total cost of $6,326,360 in Year 1.
    The Department estimates that the five named athletic associations 
and two additional national athletic associations would conduct a 
review of their policies as a result of the proposed regulation. The 
Department estimates that these internal policy reviews would require 8 
hours each from four education administrators, 8 hours each from four 
management analysts, and 6 hours each from two attorneys. In total, we 
estimate that this review would cost approximately $53,250 in Year 1.
    The Department further estimates that, as a result of their 
internal policy reviews, four national athletic associations would 
choose to revise their policies. The Department estimates that this 
revision would require 15 hours each from four education 
administrators, 20 hours each from four management analysts, and 12 
hours each from two attorneys. Further, after those revisions are 
finalized, the Department assumes that approximately 10 percent of IHEs 
would conduct their own review of the policies prior to implementing 
them. The Department estimates that this secondary review would require 
8 hours each from an education administrator and management analyst and 
6 hours from an attorney. In total, the Department estimates these 
revisions would cost approximately $1,484,960.
    The Department further assumes that each of those four athletic 
associations would update training materials consistent with their 
revised policies. The Department assumes that these revisions would 
require 8 hours from an education administrator, 32 hours from a 
management analyst, and 10 hours from an attorney. The Department 
further estimates that the updated training would require an additional 
hour for an education administrator at each of 1,289 IHEs. In total, 
the Department estimates that updated training would cost approximately 
$148,970 in Year 1.
    The Department assumes that in future years approximately two 
national athletic associations per year would undertake a review of 
their policies on students' participation consistent with their gender 
identity. The Department assumes this task would require 4 hours each 
from four education administrators, 8 hours each from four management 
analysts, and 6 hours each from two attorneys for a total cost of 
approximately $12,000 per year beginning in Year 3.
    The Department assumes that each year, one of those associations 
would opt to revise its policies. The Department estimates that this 
revision would require 8 hours each from four education administrators, 
16 hours each from four management analysts, and 10 hours each from two 
attorneys, for a total cost of approximately $11,410 per year beginning 
in Year 3.
    At the IHE level, the Department estimates the proposed regulation 
would generate total present value monetized costs of $12.9 to $13.4 
million over 10 years, assuming a seven percent and three percent 
discount rate, respectively.

3. Regulatory Alternatives Considered

    The Department reviewed and assessed various alternatives prior to 
issuing the proposed regulation, drawing from internal sources as well 
as stakeholder feedback OCR received. Specifically, the Department 
considered the following actions: (1) leaving the current regulations 
without amendment; (2) addressing the issue through guidance; (3) 
proposing amendments to the regulations to specify permissible 
eligibility requirements; or (4) proposing a regulatory standard that 
can be effectively implemented, consistent with Title IX, by recipients 
serving students at varying grade and education levels in a variety of 
male and female team sports at varying levels of competition.
    For the reasons described above, Department currently believes 
alternative (4) is the best option. In light of its review of Title IX 
and its regulations, stakeholder feedback, and developments in case law 
and in the sex-related eligibility criteria set by some school 
districts, States and other organizations (including athletic 
associations and sport governing bodies), it is the Department's 
current view that the proposed regulation would better ensure 
fulfillment of Title IX's nondiscrimination guarantee and would provide 
more clarity as to how Title IX applies to sex-related criteria that 
would limit or deny students' eligibility to participate on male or 
female teams consistent with their gender identity.
    For these reasons and those explained throughout the preamble, and 
in light of stakeholder feedback received in 2021 and 2022, the 
Department does not believe alternative (1), which would leave the 
current regulations without amendment, is a reasonable option. The 
Department rejected alternative (2), which would address the issue 
through guidance, because the Department continues to believe it is 
necessary to establish, through regulations, the legal obligations of a 
recipient to ensure that its education program or activity is free from 
all forms of sex discrimination. Guidance documents, which are not 
legally binding on a recipient, would not serve that function. The 
Department

[[Page 22888]]

rejected alternative (3), which would propose amendments to the 
regulations to specify permissible eligibility requirements, because it 
would not allow for the Department to appropriately assess whether a 
recipient's criteria are responsive to the grade or education level of 
students, the nature of a particular sport, the level of competition, 
or other factors.
    After careful consideration of these alternatives, the Department 
proposes that adopting option (4), which is to propose the regulatory 
standard put forward here, would best clarify recipients' legal 
obligations and most appropriately implement Title IX's guarantee of 
nondiscrimination on the basis of sex by recipients of Federal funds in 
the unique context of athletic teams offered by schools. Specifically, 
the Department's preliminary conclusion is that alternative (4) would 
help ensure that recipients understand the standard that would govern 
if they adopt or apply sex-related eligibility criteria for determining 
student participation on male or female athletic teams, in a manner 
that ensures overall equality of athletic opportunity based on sex. The 
Department's current view is that alternative (4) also strikes the 
appropriate balance between Title IX's guarantee that a recipient's 
education program or activity be free from sex discrimination and the 
unique considerations in the context of athletics.

4. Accounting Statement

    As required by OMB Circular A-4, the following table is the 
Department's accounting statement showing the classification of the 
expenditures associated with the provisions of the proposed regulation. 
This table provides the Department's best estimate of the changes in 
annualized monetized costs, benefits, and transfers because of the 
proposed regulation.

------------------------------------------------------------------------
             Category                             Benefits
------------------------------------------------------------------------
Clarity for recipients and         Not quantified.
 students concerning the standard
 for adopting and applying sex-
 related eligibility criteria to
 participate on a particular male
 or female athletic team.
Protecting students' equal         Not quantified.
 opportunity to participate on
 male and female teams and the
 physical and mental health and
 other benefits associated with
 that team participation.
------------------------------------------------------------------------


 
                                       Costs (calculated on an annual
                                                   basis)
                                   -------------------------------------
                                     3% Discount rate   7% Discount rate
------------------------------------------------------------------------
Preliminary Review of the                    $172,000           $202,000
 Regulation.......................
Review of Policies................          1,396,000          1,632,000
Revision of Policies..............          1,200,000          1,403,000
Updated Training..................             63,000             73,000
Periodic Review of Policies.......             12,000             12,000
Periodic Updating of Policies.....             11,000             11,000
                                   -------------------------------------
    Total.........................          2,855,000          3,333,000
------------------------------------------------------------------------

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand. The Secretary invites comments 
on how to make the proposed regulation easier to understand, including 
answers to questions such as the following:
     Are the requirements in the proposed regulation clearly 
stated?
     Does the proposed regulation contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulation (use of 
headings, paragraphing, etc.) aid or reduce their clarity?
     Would the proposed regulation be easier to understand if 
the Department divided it into more (but shorter) sections? (A 
``section'' is preceded by the symbol ``section'' and a numbered 
heading; for example, Sec.  106.41 Athletics.)
     Could the description of the proposed regulation in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulation easier to understand? If so, how?
     What else might the Department do to make the proposed 
regulation easier to understand?
    To send comments that concern how the Department could make the 
proposed regulation easier to understand, see the instructions in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act (Small Business Impacts)

1. Introduction

    This analysis, required by the Regulatory Flexibility Act (RFA), 
presents an estimate of the effect of the proposed regulation on small 
entities. The U.S. Small Business Administration (SBA) Size Standards 
define ``proprietary IHEs'' as small businesses if they are 
independently owned and operated, are not dominant in their field of 
operation, and have total annual revenue below $7,000,000. ``Nonprofit 
institutions'' are defined as small entities if they are independently 
owned and operated and not dominant in their field of operation. 
``Public institutions and LEAs'' are defined as small organizations if 
they are operated by a government overseeing a population below 50,000.

2. Initial Regulatory Flexibility Analysis

    As explained in the Establishing a Baseline (Section 2.B.1) section 
of the RIA, there is a lack of high quality, comprehensive data about 
whether particular recipients offer athletic teams, whether intramural 
or interscholastic, whether recipients are likely to revise athletic 
eligibility policies as a result of the proposed regulation, and the 
likely impact of any such changes. As a result, the Department could 
not definitively conclude that burdens on small entities would be 
sufficiently low to justify certification under the RFA. If an agency 
is unable to make such a certification, it must prepare an Initial 
Regulatory Flexibility Analysis (IRFA) as described in the RFA. Based 
on the data available, the Department has completed an IRFA and 
requests comments from affected small entities.
    The purpose of this analysis is to identify the number of small 
entities affected, assess the economic impact of the proposed 
regulation on those small entities, and consider alternatives that may 
be less burdensome to small entities that meet the Department's

[[Page 22889]]

regulatory objectives. Specifically, the Department estimates the 
number of small entities potentially impacted by the proposed 
regulation in the discussion of Estimated Number of Small Entities 
(Section 2.B), assesses the potential economic impact of the proposed 
regulation on those small entities in the discussion of Estimate of the 
Projected Burden of the Proposed Regulation on Small Entities (Section 
2.C), and examines and considers less burdensome alternatives to the 
proposed regulation for small entities in the Discussion of Significant 
Alternatives (Section 2.D). The Department requests comment on the 
extent to which the burden assumptions described in the RIA are 
reasonable for small entities (i.e., whether particular activities are 
likely to take more or less time or cost more or less than otherwise 
estimated).

2.A. Reasons for Regulating

    The Department proposes this regulation to provide greater clarity 
to recipients and other stakeholders about the standard that a 
recipient must meet under Title IX if it adopts or applies sex-related 
criteria that would limit or deny a student's eligibility to 
participate on a particular male or female athletic team consistent 
with their gender identity. The proposed regulation is consistent with 
the current regulations' framework for providing equal opportunity 
regardless of sex in a recipient's athletic program as a whole and with 
Congress's direction that the Title IX regulations include ``reasonable 
provisions'' that ``consider[] the nature of particular sports.'' 
Education Amendments of 1974 section 844.

2.B. Estimated Number of Small Entities

    Consistent with the 2020 amendments to the Department's Title IX 
regulations (see 85 FR 30026), for purposes of assessing the impacts on 
small entities, the Department proposes defining a ``small IHE'' as a 
2-year institution of higher education with an enrollment of fewer than 
500 full time equivalent (FTE) or a 4-year IHE with an enrollment of 
fewer than 1,000 FTE based on official 2020 FTE enrollment. The 
Department also proposes defining a ``small LEA'' as a local education 
agency with annual revenues of less than $7,000,000.
    During the 2020-2021 school year, according to the National Center 
for Education Statistics, of the 6,165 Title IV participating IHEs for 
which sufficient data are available, 2,803 were 4-year institutions, 
1,644 were 2-year institutions, and 1,718 were less-than-2-year 
institutions. Of those, 1,226 4-year institutions, 690 2-year 
institutions, and 1,650 less-than-2-year institutions met the 
Department's proposed definition of a ``small IHE.''

                                    Table 1--Number of Small IHES, Fall 2020
----------------------------------------------------------------------------------------------------------------
                                                                                   Less than  2-
                                                      4-Year          2-Year           year            Total
----------------------------------------------------------------------------------------------------------------
Not Small.......................................           1,577             954              68           2,599
Small...........................................           1,226             690           1,650           3,566
                                                 ---------------------------------------------------------------
    Total.......................................           2,803           1,644           1,718           6,165
----------------------------------------------------------------------------------------------------------------

    During the 2018-2019 school year, 6,518 of the 17,798 LEAs with 
available revenue data met the Department's proposed definition of a 
``small LEA.''

                Table 2--Number of Small LEAs, Fall 2018
------------------------------------------------------------------------
                                                               LEAs
------------------------------------------------------------------------
Not Small...............................................          11,280
Small...................................................           6,518
                                                         ---------------
    Total...............................................          17,798
------------------------------------------------------------------------

2.C. Estimate of the Projected Burden of the Proposed Regulation on 
Small Entities

    Based on the assumptions described in the RIA, an IHE that reviews 
and revises its policies as a result of the proposed regulation would 
see a net increase in costs of approximately $560 per year (assuming a 
discount rate of 3 percent). The Department notes that this estimate 
assumes an IHE that offers single-sex athletic teams. The Department 
believes that smaller IHEs, such as many offering less-than-2-year 
programs, are less likely than other IHEs to offer athletic teams and 
therefore would experience no additional costs.
    According to data from the Integrated Postsecondary Education Data 
System (IPEDS), in FY 2019, small IHEs had, on average, total revenues 
of approximately $10,349,540. Therefore, the Department estimates that 
the proposed regulation could generate a net cost for small IHEs equal 
to approximately 0.005 percent of annual revenue when they choose to 
review their policies. According to data from IPEDS, approximately 30 
IHEs had total reported nonzero annual revenues of less than $56,000, 
for which the costs estimated above would potentially exceed 1 percent 
of total revenues. Three of these IHEs reported no enrollment data for 
the Fall 2020. The remaining IHEs enrolled, on average, 65 students in 
Fall 2020. None of these IHEs reported membership in a national 
athletic association. Twenty-three of the IHEs were vocational or 
technical schools and four were administrative units associated with 
larger college systems. The Department believes it is highly unlikely 
that these small IHEs offer athletic teams and, if they do, that they 
would regularly offer single-sex athletic teams.
    Based on the assumptions described in the Cost Estimates (Section 
2.B.3) discussion of the RIA, an LEA that engages in an intensive 
review and revision of its policies would see a net increase in costs 
of approximately $140 per year (assuming a discount rate of 3 percent). 
The Department notes that these estimates assume a small LEA that 
offers athletic teams. Many small LEAs may not be impacted by the 
proposed regulation, given that they may not offer athletic teams. The 
Department estimates that small LEAs that do not offer athletic teams 
would experience no additional costs.
    In 2018-2019, small LEAs had an average total revenue of 
approximately $3,450,911. Therefore, the Department estimates that the 
proposed regulation could generate a net cost for small LEAs of 
approximately 0.004 percent of total revenues. According to data from 
the National Center for Education Statistics, in 2018-2019, six small 
LEAs reported nonzero total revenues of less than $14,000, for which 
the estimated costs would potentially exceed 1 percent of total 
revenues. Among those, four small LEAs had zero students enrolled 
during the 2018-2019 academic year and the reported revenues for the 
remaining two would result in calculated total revenues of less than 
$10 per student. Based on this analysis, the Department

[[Page 22890]]

believes that these are likely reporting errors and, therefore, the 
Department does not believe the estimated costs would exceed 1 percent 
of total revenues for any affected small LEA.
    As part of the 2017-2018 CRDC, respondents were asked about the 
number of male and female athletic teams offered at the high school 
level. In analyzing the data in conjunction with information from the 
National Center on Education Statistics, small LEAs that served 
students in high school were less likely than larger LEAs to report at 
least one male or female team (30 percent of small LEAs indicated that 
the item was not applicable, compared with only 12 percent among non-
small LEAs). Further, among those that reported at least one male or 
female athletic team, small LEAs operated, on average, approximately 
one-fifth as many teams as non-small LEAs (8.7 teams on average 
compared to 39.4).
    The Department requests comment on any additional burdens for small 
entities.

2.D. Discussion of Significant Alternatives

    As discussed in section 3 above (Regulatory Alternatives 
Considered), the Department reviewed and assessed various alternatives 
prior to issuing the proposed regulation, drawing on stakeholder 
feedback OCR received. Specifically, the Department considered: (1) 
leaving the current regulations without amendment; (2) addressing the 
issue through guidance; (3) proposing amendments to the regulations to 
specify permissible eligibility requirements; or (4) proposing a 
regulatory standard that can be effectively implemented, consistent 
with Title IX, by recipients serving students at varying grade and 
education levels in a variety of team sports at varying levels of 
competition.
    As the Department described in the Regulatory Alternatives 
Considered (section 3) discussion of the RIA, it currently believes 
that alternative (4) is the best option, including that it is the 
Department's current view that the proposed regulation would better 
ensure fulfillment of Title IX's nondiscrimination guarantee and would 
provide more clarity as to how Title IX applies to sex-related criteria 
that would limit or deny students' eligibility to participate on male 
or female teams consistent with their gender identity.
    After careful consideration of the four alternatives discussed 
above, the Department proposes that adopting option (4) would best 
clarify recipients' legal obligations and most appropriately implement 
Title IX's guarantee of nondiscrimination on the basis of sex by 
recipients of Federal funds in the unique context of athletic teams 
offered by schools. Specifically, the Department's preliminary 
conclusion is that alternative (4) would help ensure recipients 
understand the standard that would govern if they adopt or apply sex-
related eligibility criteria for determining student participation on 
male or female athletic teams and thereby protect students' equal 
opportunity to participate on male and female teams consistent with 
Title IX. The Department's current view is that alternative (4) also 
strikes the appropriate balance between Title IX's guarantee that a 
recipient's education program or activity be free from sex 
discrimination and the unique considerations in the context of 
athletics.
    The Department also considered whether proposing different 
requirements for smaller-sized recipients than for mid-sized or larger 
ones would reduce any potential burden on smaller entities. The 
Department rejects this alternative at this time because Title IX 
rights do not depend on the size of a recipient, and the proposed 
regulation is sufficiently adaptable so that small entities, along with 
other entities, can adopt the approach that works best for their 
particular educational environment.

Executive Order 12250 on Leadership and Coordination of 
Nondiscrimination Laws

    Under Executive Order 12250, the Attorney General has the 
responsibility to ``review . . . proposed rules . . . of the Executive 
agencies'' implementing nondiscrimination statutes such as Title IX 
``in order to identify those which are inadequate, unclear or 
unnecessarily inconsistent.'' \23\ The Attorney General has delegated 
that function to the Assistant Attorney General for the Civil Rights 
Division for purposes of reviewing and approving proposed rules, 28 CFR 
0.51, and the Assistant Attorney General has reviewed and approved this 
proposed rule.
---------------------------------------------------------------------------

    \23\ Executive Order on Leadership and Coordination of 
Nondiscrimination Laws, Exec. Order No. 12250, 45 FR 72995 (Nov. 4, 
1980), https://tile.loc.gov/storage-services/service/ll/fedreg/fr045/fr045215/fr045215.pdf.
---------------------------------------------------------------------------

Paperwork Reduction Act of 1995

    This proposed regulation does not contain any information 
collection requirements.
    Intergovernmental Review: This program is not subject to Executive 
Order 12372 and the regulations in 34 CFR part 79 because it is not a 
program or activity of the Department that provides Federal financial 
assistance.
    Assessment of Educational Impact: In accordance with section 411 of 
the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary 
particularly requests comments on whether the proposed regulation would 
require transmission of information that any other agency or authority 
of the United States gathers or makes available.
    Federalism: Executive Order 13132 requires the Department to ensure 
meaningful and timely input by State and local elected officials in the 
development of regulatory policies that have federalism implications. 
``Federalism implications'' means substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The proposed regulation--Sec.  
106.41(b)(2)--may have federalism implications. We encourage State and 
local elected officials to review and provide comments on this proposed 
regulation.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at https://www.govinfo.gov. At this site you can 
view this document, as well as all other documents of this Department 
published in the Federal Register, in text or Adobe Portable Document 
Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is 
available free at the site. You may also access documents of the 
Department published in the Federal Register by using the article 
search feature at https://www.federalregister.gov. Specifically, 
through the advanced search feature at this site, you can limit your 
search to documents published by the Department.

[[Page 22891]]

List of Subjects in 34 CFR Part 106

    Civil rights, Education, Sex discrimination, Youth organizations.

Miguel A. Cardona,
Secretary of Education.

    For the reasons discussed in the preamble, the Department of 
Education proposes to amend 34 CFR part 106 to read as follows:

PART 106--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION 
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
1. The authority citation for part 106 continues to read as follows:

    Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.

0
2. Section 106.41 is amended by:
0
a. Designating the text following the heading in paragraph (b) as 
paragraph (b)(1); and
0
b. Adding paragraph (b)(2).
    The addition reads as follows:


Sec.  106.41  Athletics.

* * * * *
    (b) * * *
    (2) 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.
* * * * *
[FR Doc. 2023-07601 Filed 4-12-23; 8:45 am]
BILLING CODE 4000-01-P