Playing by the Rules: Sports Programs Face Challenges in Including Transgender Athletes

4 min

A West Virginia law introduced as the "Save Women's Sports Act," which banned transgender athletes from competing on girls' and women's sports teams, was recently struck down by the Fourth Circuit Court of Appeals. In a 2-1 ruling, the court in B.P.J. v. West Virginia State Board of Education sided with a 13-year-old transgender girl who argued that she was prevented from running track at her middle school as a result of the law.

The appeals court found that the state law violated Title IX, a federal law that prohibits sex-based discrimination in programs that receive federal funding, including schools. In its ruling, the judges found that the law effectively deprived the teenager of any meaningful athletic opportunities solely on the basis of her sex. The state has announced it will ask the U.S. Supreme Court to weigh in next.

Deciding how, or even whether, transgender athletes should compete in sports based on their gender identities continues to be a divisive issue in the United States, and there are no signs of those tensions abating. The ruling in West Virginia comes as a federal lawsuit was recently filed against the NCAA, calling on the sports organization to rescind the eligibility of its transgender athletes. Meanwhile, multiple states have passed legislation or regulations restricting transgender athletes from participating in sports aligned with their gender identities.

Although the Biden administration recently finalized sweeping changes to Title IX regulations, it notably has not finalized a separate proposed rule on athletics eligibility. The April 2023 proposal, which the Department of Education called "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" (the Athletics NPRM), would amend Title IX to provide schools with guidance on how to apply or adopt sex-related criteria that would govern a student's ability to participate in sports based on their gender identity. The Athletics NPRM would apply to all K-12 public schools, and to colleges, universities, and all other sports programs that receive federal funding.

While Title IX has long prohibited schools from excluding individuals from participating in various sports teams solely on the basis of their sex, it permits schools to separate males and females when sex-based criteria are based on a competitive skill. The proposed rule sought to provide clarity about those criteria by requiring that they (1) be substantially related to an important educational objective and (2) minimize harm to students whose opportunity to participate consistent with their gender identity would be limited or denied.

The question of whether criteria are substantially related to an important educational objective would likely prove to be nuanced, depending on the population. For example, the needs of younger children who play sports to learn teamwork and to get exercise vary significantly from those of older children and young adults who aim to compete in elite athletics. The Athletics NPRM did not preclude teams from placing some restrictions on transgender students' participation in sports. However, if criteria existed that would cause less harm while achieving the same important educational objective, the proposed rule would require that the less harmful criteria be adopted.

In proposing the Athletics NPRM, the Department of Education recognized that it could not adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating in athletics consistent with their gender identity, because it would fail to account for differences between sports, levels of competition, and grade levels. These factors were also considered by the Fourth Circuit in the West Virginia case. While the Athletics NPRM may create more clarity, the transition to compliance would likely impose additional requirements, like the need to conduct more staff training, perform outreach with the broader community, and make updates to formal policies and handbooks. Given the legal and political landscape around this issue, any final rule is also likely to face substantial challenges in court.

Schools, universities, and sports teams must regularly address this complex issue as they wrestle with changing attitudes about transgender participation in sports while maintaining compliance with this developing area of law. Here are several steps that schools and teams can take today to stay on top of things:

  • Consider whether your school or team should adopt a formal policy on transgender athlete participation
  • Begin educating your community about the nuances and challenges of this process, while assuring participants that you want to continue offering a high-quality experience
  • Stay apprised of changes to local, state, and federal laws, as well as regulations and guidance from the Department of Education's Office of Civil Rights
  • Communicate with stakeholders in local and national athletic associations about their experiences and best practices in this area

Venable will continue to monitor developments related to the Athletics NPRM and the many legal challenges being brought in relation to transgender athlete participation. Please contact the authors of this article or any other attorney in Venable's Labor and Employment Group with questions or concerns.