May 12, 2023
The Honorable Miguel Cardona
U.S. Secretary of Education
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202
Via electronic submission at regulations.gov
Re: Docket ID No. ED 2022-OCR-0143, 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, 34 CFR Part 106
Dear Secretary Cardona,
On behalf of the 11,000+ members of the Association of Title IX Administrators (ATIXA), we thank you for the opportunity to comment on the U.S. Department of Education’s (ED) Notice of Proposed Rulemaking (NPRM) on Sex-Related Eligibility Criteria for Male and Female Athletic Teams.
ATIXA is the primary membership association for Title IX administrators in K-12 schools and post-secondary education. ATIXA is also the leading provider of Title IX training, certification, and professional development in the United States, having certified more than 60,000 Title IX professionals since 2011. ATIXA is committed to providing Title IX administrators with best practices and practical advice to help meet and exceed Title IX mandates. In addition to in-person trainings, ATIXA provides instructor-led virtual training and self-paced eTraining, as well as policy templates, whitepapers, position statements, and other published materials to support the expanding Title IX professional community.
ATIXA has been working closely with recipients, including K-12 schools, to navigate challenges related to athletic participation and gender identity, especially given the evolving state law, case law, and federal regulatory environments. ATIXA has been at the forefront of the most compelling Title IX athletic-related issues. Whether recipients need experts to advise them on best practices, provide comprehensive services, identify compliance gaps, or facilitate best-in-class training, ATIXA offers athletics experts to meet those needs. As a result, ATIXA has a nuanced view of the current state of Title IX and athletics, including areas of strength, as well as areas for improvement, from which we offer our comment on the NPRM.
The commentary below offers a few remarks on some general topics before offering more specific comments. ATIXA would like to note that the following ideas reflect ATIXA’s comments on the proposed regulations, rather than ATIXA’s recommended best practices for Title IX practitioners.
We appreciate ED’s commitment to respond to each of ATIXA’s comments as well as those submitted by the other concerned stakeholders who have taken the time to submit comments.
Brett A. Sokolow, Esq.
Chair, ATIXA Advisory Board
Daniel C. Swinton, J.D., Ed.D.
President
This comment was unanimously ratified by the ATIXA Advisory Board on May 12, 2023.
General Comments
ATIXA supports ED’s decision to codify the rights of transgender and other gender diverse students under Title IX. ATIXA understands ED’s decision to create a rule that prohibits categorical rules or policies requiring students to participate in athletics consistent with their “biological sex,” but is flexible enough to incorporate the expertise of athletics associations and other athletics governing bodies.
Despite the approach framed by ED in the NPRM, ATIXA’s members would generally prefer a simple rule that guarantees athletics access for all trans, transitioning, non-binary, and intersex athletes consistent with their gender identity, with no exceptions other than those currently existing for religious institutions.
With that said, ATIXA acknowledges ED’s proposed approach to permit narrow exceptions. ATIXA also accepts that fairness in competition and the risk of injury can be important considerations, but only when recipients produce evidence that specific circumstances justify their policies. Put succinctly, a one-time competitive advantage, or a speculative advantage, should never be enough to deprive an athlete of an opportunity to participate. Only consistent advantages, resulting in the demonstrated deprivation of other athletes of education-based opportunities, should be enough to warrant restriction or exclusion, and then only for so long as those advantages persist.
If an athlete can mitigate any advantage deemed to create unfair competition, the recipient should rescind the restriction. Similarly, a one-time injury or safety issue should not be enough, and speculative safety concerns should not be sufficient to warrant exclusion. Consistent safety risks demonstrably tied or due to a student’s gender identity or transition could be sufficient, but we cannot think of any factual circumstances in our experience that would meet this standard – rendering the standard largely theoretical.
ATIXA requests that ED provide examples of restrictions that could comply with the proposed rule, as well as examples of restrictions that likely would not be compliant with the proposed rule. In the Regulatory Impact Analysis (RIA), ED states, “[T]he Department assumes that a range of policies would comply with the regulations.”[1] ATIXA would appreciate clarification and examples at various age/grade/competition levels, as well as expanded discussion of how OCR will view rules neutrally written but with disparate applications when complaints of non-compliance with Title IX arise.
Focused Comments
Harm Minimization
ATIXA asks ED to clarify the second prong of the proposed test, namely the expectation to “minimize the harm.” What does “minimize the harm” mean? Does “minimize the harm” require recipients to fund or facilitate alternative equivalent opportunities? Is there a “reasonableness” standard? Must recipients document their attempt to minimize harm? Do recipients need to provide any written rationale regarding their decision whether the situation warrants harm minimization?
Is “minimize the harm” an individualized analysis for each student? Could a recipient standardize their approach to minimizing harm so that the same alternatives are available to all excluded students? ATIXA recommends an individualized approach. Arguably, each student’s unique circumstances could change “the harm” or the options available to minimize that harm.
Additionally, ATIXA views the language in ED’s proposed test as echoing the intermediate scrutiny standard found in constitutional law jurisprudence. Borrowing language from the intermediate scrutiny standard is logical, given that intermediate scrutiny applies to sex and gender classifications in case law. That said, ATIXA asks ED to clarify how and whether the harm minimization standard is functionally distinguishable from the “least restrictive means” requirement of the strict scrutiny standard. Harm “mitigation” rather than “minimization” may be more accurate if ED intends the proposed regulations to adhere to intermediate scrutiny, rather than strict scrutiny. From a practical perspective, ATIXA has no qualms with keeping “harm minimization” as the standard but wishes to clarify its application.
ATIXA also requests ED clarify whether it intends the harm minimization prong to apply to cisgender students who believe that their opportunity to participate on a team with their gender identity is limited or denied because of a school/district policy permitting all trans, transitioning, non-binary, and intersex athletes to participate in accordance with their gender identity.
Application to Middle School
ATIXA asks ED to clarify the application of the proposed rule to middle school. The NPRM makes clear that the proposed rule would likely render invalid any restrictions aimed at elementary school-aged children. Likewise, the NPRM indicates that restrictions for competitive sports in high school and college may be compliant. However, the NPRM does not provide much clarity for middle school or junior high school athletic programs. Considering that ED estimates in its RIA that only 35 percent of state athletic associations have policies pertaining to middle school, middle school-aged transgender, transitioning, non-binary, and intersex athletes are largely unprotected.
Depending on how one defines middle school or junior high (and that varies from district to district), such an age group could be challenging to regulate because puberty often occurs during middle school or junior high – and puberty occurs at different ages for different students. Given the changes the body undergoes during puberty, educational objectives like injury avoidance or fairness may increase in significance after puberty. ATIXA asks ED to provide additional insight regarding middle school and/or onset of puberty in its “Grade/Education Level” analysis. ATIXA is generally supportive of the idea reflected in the NPRM that, as students progress from elementary to middle school, automatic restrictions should not take effect simply because of a change in school-level classification.
Fairness Analysis
ATIXA asks ED to clarify the definition of “fair” and “fairness” as it relates to the important educational objective analysis. What creates a competitive lack of fairness? Must every athlete have an opportunity to win? What about every team? What happens in team sports where a particular athlete may have an unfair competitive advantage because of their gender identity, but that advantage does not give their team any overall unfair advantage? Is an unfair advantage solely determined by results; if so, is winning once enough to prove an unfair advantage? Twice? Can a recipient employ different rules or standards for individual competition athletes versus team sports?
As for the opportunity to win, referenced above, arguably it is impossible for every athlete to have the SAME opportunity to win regardless of gender identity. Some athletes are just better than others for a variety of reasons. So, does ‘fair’ or ‘fairness’ mean that the playing field has to be truly equal? If so, how does any sport accomplish that when athletes are, by definition, not all at the same level?
Preemption Language
Federal regulation preempts state law when the two are in direct conflict. ATIXA anticipates that this rule will conflict with state laws already on the books, as well as state laws under consideration by various state legislatures. Although federal law preempts contradictory state law, recipients may feel compelled to follow state law because state legislatures have more imminent enforcement mechanisms, such as setting public budgets and exercising more control over the personnel and operations of public recipients.
In previous proposed regulations, there was specific reference to federal preemption. Does ED plan on adding any specific regulatory language or preamble guidance about federal preemption? Given the likelihood of conflict between the final rule and state laws that blanket ban the athletic participation of transgender students, ATIXA recommends additional guidance on this issue. If a recipient cannot comply with state law and the Final Rule, what does ED expect the recipient to do?
Hormonal Differences
ATIXA asks ED to clarify whether this regulation would prohibit application of any law, ordinance, or policy designed to limit athletic participation or access based on hormonal differences. Hormone levels for adolescents and adults vary widely, and some medical conditions, for example, may impact hormonal levels. ATIXA wishes to prevent recipients from doing an end-run around the proposed rule by developing a policy based on hormonal differences which, in effect, denies or limits transgender athlete participation.
Relatedly, ATIXA is pleased to see that ED has noted in the NPRM that endogenic puberty itself is not sufficient to prove an unfair competitive advantage.
Genital Checks
ATIXA supports ED’s prohibition on genital and other physical examinations and, given how traumatic such practices can be, asks ED to address this prohibition in more explicit language in the Final Rule.
Interactions with Other Title IX Regulations
ATIXA asks ED to clarify how recipients should interpret and implement the regulations in situations in which the proposed rule overlaps, or potentially conflicts with, other parts of the Title IX regulations. Potential conflicts could include, for example, the sections addressing elements of housing, comparable facilities, and other access to classes and schools (34 CFR §§ 106.32-34).
Scholarship Proportionality
ATIXA asks ED to consider addressing the question of how recipients should count intersex or non-binary scholarship recipients for purposes of assessing proportionality for scholarship equity purposes, given that the scholarship rule is based on gender as a binary. This is a concern for both athletic and non-athletic scholarships.
Levels of Legal Scrutiny
As initially referenced above, ATIXA posits that, although the proposed rule tracks language similar to the intermediate scrutiny standard from constitutional law jurisprudence, the “minimizing harm” analysis hews more closely to the concepts embedded in strict scrutiny. For example, the NPRM states within the “Harm Minimization Requirement” section that “even sex-related criteria that are substantially related to the achievement of an important educational objective would violate proposed § 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.”[2] This feels similar to the “narrowly tailored” requirement of strict scrutiny. Additionally, the NPRM states “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.”[3] Such language hews close to the “least restrictive means” language of strict scrutiny. ATIXA asks ED for clarification.
ATIXA asks ED to clarify whether this apparent disconnect was intentional or if ED disagrees with ATIXA’s characterization. If there is daylight here between the proposed rule and the strict scrutiny standard, ATIXA asks ED to provide clarification. Tracking the language of intermediate scrutiny makes sense given the NPRM’s focus on sex- and gender-related criteria. However, courts apply intermediate scrutiny differently, and ED’s application in the NPRM may set a higher bar than some courts use when applying intermediate scrutiny.[4]
ATIXA views an attempt to apply strict scrutiny to sex- and gender-related criteria as an opening for legal challenge to the Final Rule that we hope ED would prefer to avoid. Although courts and agencies often use different standards and analyses to decide similar questions of law, ATIXA deems this concern worth raising, even if only to provide ED an opportunity to provide any clarifications as appropriate.
Disparate Impact
ATIXA notes that the language ED used in the NPRM seems to imply that any policy directed to trans-male athletes could not satisfy an unfair competition standard, though a policy directed to trans-female athletes might. Any such approach to an unfair competition standard would have a disparate impact on trans-female athletes. ATIXA welcomes any further ED comment or insight into this potential issue.
Benching Transgender Athletes
ATIXA asks ED to clarify how the proposed rule may or may not apply in a situation in which a coach or administrator benches a transgender, transitioning, non-binary, or intersex athlete because of their gender identity. Technically, in such a situation, the athlete would be on the team, but the coach’s decision would effectively deny or limit their participation while still allowing the recipient to claim no exclusion. ATIXA requests that ED clarify the rights Title IX protects. Is it the right to be on a team, the right to compete, the right to have the opportunity to win or play, etc.?
ATIXA recognizes the coach’s discretion in playing time decisions. Correspondingly, situations in which an athlete claims their benching is because of their status, as opposed to what the coach needs in that competition/game, can be challenging to navigate. That said, a pattern of such benching can and should raise an inference or rebuttable presumption that the reason is, at least in part, based on the gender-identity of the athlete.
Gender Identity Verification
ATIXA asks ED to clarify whether the proposed rule:
- Requires recipients to accommodate a student based solely on their own representations of their gender identity.
- Permits or prohibits recipients from requiring parental/guardian or doctor verification of gender identity to “prove” gender identity in situations in which the student is a minor.
- Permits or prohibits recipients from requiring a birth certificate or updated birth certificate information to “prove” gender identity.
- Permits or prohibits recipients from requiring parental/guardian notification of gender identity to “prove” or “confirm” gender identity in situations in which the student is a minor.
ATIXA invites the ED to clarify its position on whether this proposed rule change is meant to permit or prohibit policies requiring parental/guardian notification when a minor student requests to participate on a team consistent with their gender identity but not their sex assigned at birth.
Gender Fluid Students
ATIXA asks ED to clarify how recipients should respond in situations in which a student identifies as gender fluid.
Directed Questions
- ATIXA supports the general approach ED outlined in the NPRM as a centrist compromise but would prefer that ED adopt a simpler rule allowing athletes to choose to participate in whatever team aligns with their gender identity. At some point, if competitive sports come to be dominated by trans-female athletes, ED can revisit this rule. But we are so far from that being a reality in the United States that it may never happen, or it may take a generation to know if it will happen. Why address a phantom fear now with a rule that allows restriction when the problem is largely speculative?
- ATIXA believes the two educational objectives, competitive fairness and safety, anticipated by ED in the NPRM are instructive. We cannot think of others that might suffice. ATIXA encourages ED to include a clearly defined list in the Final Rule, though we expect there to be flexibility for OCR to accept other reasons on a case-by-case basis.
- ATIXA understands that the permissibility of sex-related eligibility criteria can differ depending on the sport, level of competition, grade or education level, and other considerations. Educational objectives such as fairness and injury avoidance may be more salient in certain sports, levels, or grades than other educational objectives like fitness, resilience, social and emotional learning, teamwork, and belonging. Barring a transgender fourth-grade student wishing to play on her school’s softball team will likely fail to meet the same sort of educational objectives that barring a transgender college student in track might meet. Therefore, the analysis should be different. That said, a tailored approach is appropriate to older students as well, as some sports or competitions may not justify denying or limiting participation. ED also faces the real-world implication of this rule, that a trans-female athlete may be able to compete all the way through school until she becomes too talented, at which time her right to participate could end. Although most athletes are encouraged to develop, progress, get stronger, faster, etc., the opposite could be true for trans-females, who could be penalized for the same kinds of achievements society rewards in cisgender athletes.
- ATIXA does not envision sex-related eligibility criteria that could meet the NPRM standard when applicable to students in earlier grades. ATIXA does not recommend adopting a rule that would serve to limit participation in younger grades, where fair competition and injury avoidance are not salient concerns compared to the benefits of participation.
- ATIXA is pleased that ED included this direct question because additional examples to elucidate the meaning of “minimizing harm” would be helpful in the final rule. Strategies to minimize harm may include:
- Involving the effected student(s) in an iterative process or conversation to identify the harm caused by the policy and determine strategies or remedies that could be successful given the student’s circumstances and wishes. For example, minimizing the harm may look different for an individual who is public about being a transgender individual than for an individual wishing to maintain privacy around their gender identity. Alternatively, depending on the totality of the circumstances, there may be another position or role for the individual that would be satisfactory.
- Establish an all-gender league with no sex- or gender-related criteria. Some situations may lend themselves to this kind of solution, like recreational leagues or some club sports. Minimizing harm would probably necessitate a reasonable level of competition in any alternative league.
- Collaborate with the student to identify alternative athletic opportunities and facilitate participation in those opportunities. Another sport or competition may not have the same kinds of safety or fairness concerns, depending on age or level.
- Identify opportunities with other recipients that may be suitable for the individual and facilitate pursuit of those opportunities.
ATIXA believes that under no circumstance should “minimizing harm” lead to pushing a student away from or towards an opportunity. ATIXA recommends ED include language specifying that recipients may not encourage or demand a student agree to alternatives in any way that applies undue pressure or results in the student’s restriction from the educational program.
- ATIXA suggests ED consider additional regulatory text in alignment with the above recommendations in this comment.
Regulatory Impact Analysis (RIA)
ATIXA believes that the RIA underestimates costs associated with reviewing the proposed regulations, identifying recipient conflicting policies, and designing new policies. When state athletic associations and other similar bodies factor into the mix, costs increase as recipients respond to those associations’ changes. Additionally, the RIA does not factor in the potential for millions of dollars in litigation costs that are likely to occur.
ED fashioned a proposed rule that requires careful drafting and evidentiary support. Recipients determined to exclude transgender athletes may spend significant time crafting policies to do so. Given the specificity and sport-by-sport tailoring the regulations require, drafting a compliant policy will take time and energy, especially given the layers of review and revision the RIA contemplates.
Unless a recipient wants to permit participation in alignment with gender identity for all sports at all levels, writing a compliant policy requires gathering evidence to support an educational objective as well. Additionally, if the recipient is in a state with a state law in direct contravention of the proposed rule, policymaking becomes significantly more complex.
ATIXA envisions that recipients’ legal counsels will need to spend significant time with school boards, boards of directors, other leadership, and other key stakeholders to determine the policy stance they wish to endorse – then they will need to craft a compliant policy. Such a process will take significantly more time than the RIA contemplates.
When the conversation moves to state associations or other similar organizations like the NCAA, the costs likely increase because of the number of sports, the number of competition levels, and the number of state laws to consider.
[1] 88 Fed. Reg. 22884.
[2] 88 Fed. Reg. 22877.
[3] 88 Fed. Reg. 22877.
[4] Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (“The burden is met only by showing at least that the classification serves “important governmental objectives and that the discriminatory means employed” are “substantially related to the achievement of those objectives.”); U.S. v. Virginia, 518 U.S. 515, 533 (1996) (“the reviewing court must determine whether the proffered justification is ‘exceedingly persuasive.’”); Nguyen v. I.N.S., 533 U.S. 53, 70 (2001) (“None of our gender-based classification equal protection cases have required that the statute under consideration must be capable of achieving its ultimate objective in every instance…the fit between the means and the ends is “exceedingly persuasive.”); Adams v. School Board of St. Johns County, 57 F.4th 791, 805 (11th Cir. 2022) (“Intermediate scrutiny is satisfied when a policy has a ‘close and substantial bearing on’ the governmental objective in question.”)