On April 6, 2023, the Biden administration proposed a new rule that would prevent total bans on transgender athletes in school sports, but would allow carveouts for some restrictions at the discretion of schools. The administration elaborated that a total ban on transgender athletes competing would be in violation of Title IX, which bars gender discrimination from publicly funded educational institutions.
Some critics of the proposed rule believe it was unnecessary for the administration to weigh in on the transgender athlete public discourse and fear that the carveout for some restrictions may allow biased administrators to stealthily restrict transgender athletes from participation. Advocates believe that the rule has substantial criteria to limit the exclusion of students based on their gender identity. The criteria for excluding students requires the exclusion to (1) be substantially related to the achievement of an important educational objective, and (2) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.
This proposed rule will undergo public comments for 30 days once published in the Federal Register. As it is not in effect yet, the rule could change in form and reach, or even be abandoned if the administration feels it is not a good fit.
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.