Listen to Our Title IX Podcast!

Elizabeth Hungerford hosts a discussion with Max Dashu and Katherine Acosta on Title IX, proposed rule changes for sport, and our public comment.

The Title IX proposed rule changes have been published and we have until Monday, May 15th to make a public comment on them. (Read the Fact Sheet here.) Check out our discussion and then, if you have not done so already, go to the Federal Register and make your comment! 

Key points in the proposed rule changes:

• The Dept will allow sex-segregated sport when it can be justified to meet educational objectives, but “schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.”

• Institutions will have the freedom to develop their own team eligibility criteria.

• For elementary school students, where skill learning and team building, rather than competition, are the educational goals, the Dept anticipates that sex-segregation will be harder to justify.

• For older students, where competition is more important, sex-segregation may be justified on the basis of fairness and safety.

• Policies must ensure minimal harm to trans-identifying students.

Our public comment emphasizes the importance of minimizing harm to females and urges the Department to be more specific about what criteria for team eligibility will be acceptable. Otherwise, some recipients (federally funded educational institutions) may be inclined to avoid litigation by not creating any sex-related team eligibility criteria at all. It should be noted that the regulation does not require sex-related eligibility criteria, but only permits such criteria

Finally, in response to the directed question that asks for suggestions for an alternative approach, we suggest an open category and a female category in sport. 

Key points in our public comment:

• The Department should modify the proposed regulation to make clear that female athletes may be harmed when gender identity is the overriding criteria used to determine eligibility for participation in certain sports and that recipients must minimize harm to female athletes.

• To ensure the proper balance of fairness, equality, and safety, and to minimize the foreseeable harms of litigation; the Department should amend the proposed regulation to specify which forms of proof or evidence recipients may require to establish sex-related eligibility for participation. 

• Finally, the Department should recommend that recipients may achieve the important educational interests of safety and fairness for all student athletes regardless of sex and gender identity by designating one category as “open” with no sex-related proof of eligibility requirements and also maintaining a second “female” category with sex-related female proof of eligibility other than gender identity.

(Read the full draft of our comment here.)