Title IX athletic rule could be finalized in May


The U.S. Department of Education intends to release its final Title IX athletic rule in May, alongside its broader Title IX rule already expected next month, according to a department spokesperson. 

The Title IX athletics proposal, which would make a one-sentence change to the Department of Education anti-sex discrimination regulations, was released last week and has a 30-day comment period.

It would require that if schools adopt sex-based criteria for athletics teams limiting or denying transgender students’ participation, the criteria must “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 athletics rule took many who were expecting blanket support for transgender students by surprise, as it would allow for school districts to restrict transgender students from playing on teams aligning with their gender identities under certain conditions. It was released nearly a year after the Education Department’s broader Title IX proposal, which for the first time offered protections for LGBTQ and pregnant students and employees from sex discrimination. 

That broader Title IX rule is still on track to be released next month, said a senior department official in last week’s press briefing. The release of that proposal’s draft had been delayed by two months to June 2022, after initially planning for a May release that was then pushed up to April. 

This month, more than 120 sexual assault survivor and gender justice-oriented advocacy groups sent the department a letter requesting that the Biden administration ensure the broader final rule be released next month.

The implementation dates — which are usually announced with the final rule — for both proposals are still unclear. In 2020, then-U.S. Secretary of Education Betsy DeVos’ Title IX proposals released in May took effect in August, with the start of the new school year. 

That implementation date was challenged by Democratic attorneys general from 17 states and the District of Columbia, who said in a lawsuit the deadline was impractical considering COVID-19 disruptions of the time. They also said a three-month timeline to develop practices in line with the new regulations was too short. The challenge failed, however, and DeVos moved forward with implementation in mid-August. 

It’s possible this administration would take that route with its implementation date or it could wait another year before school districts have to put the regulations in practice, said Title IX lawyers.

“I can see it going into effect — if they really want to make it clean and follow an academic calendar — going into effect August of ’24, or July 1 of ’24, so it’s new fiscal year,” said Nina Gupta, a partner at law firm Parker Poe who routinely counsels school districts on Title IX matters. Gupta added that a later date would give athletic directors, coaches and administrators “plenty of lead time” to develop standards related to the final rules.

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