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Athletic Opportunities and Benefits
Equal Athletic Opportunities for Both Sexes
Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in education programs and activities, including athletic programs, that receive Federal financial assistance. Schools that receive Federal funding have a responsibility under Title IX to provide equal athletic opportunities to all students, regardless of sex. Title IX requires schools to effectively accommodate the athletic interests and abilities of their students, regardless of sex, and provide equal opportunity in the benefits, opportunities, and treatment provided for their athletic teams.
On April 6, 2023, the U.S. Department of Education released proposed changes to its Title IX Regulations on Students’ Eligibility for Athletic Teams. During the two years of outreach to stakeholders to develop this proposed rule, the Department heard repeatedly that many schools, students, parents, and coaches face uncertainty about when and how transgender students can participate in school sports. The NPRM, if adopted as a final rule, would provide much needed clarity for students, parents, and coaches.
- The proposed regulations build upon the longstanding Title IX rules that protect equal athletic opportunities for women and girls.
- The proposed regulations support Title IX’s nondiscrimination requirement, while providing flexibility for schools to achieve important educational objectives through their athletic program.
- The proposed regulations would recognize that differences in grade and education level, level of competition, and sports must be taken into account for any eligibility criteria that would restrict transgender students from participating on teams consistent with their gender identity.
- The proposed regulations recognize that there are differences among students and school sports teams depending on grade and education level.
- The proposed regulations would recognize that school athletic teams vary in the level of competition they offer.
- The proposed regulations would recognize that the types of sports offered vary widely and that sport governing bodies vary in their participation criteria.
- The proposed regulations would recognize the importance of minimizing harms to students whose participation on teams consistent with their gender identity would be limited or denied.
Additional information on the proposed regulations includes a fact sheet.
The Department’s Proposed Title IX Regulations on Students' Eligibility for Athletics Teams were published in the Federal Register on April 13, 2023, thus beginning the 30 day public comment period. The public comment period closed on May 15, 2023.
Until any new regulations go into effect, the 2020 regulations remain in effect. The proposed regulation would be added as (b)(2), and current (b) would be redesignated as (b)(1).
The U.S. Department of Education’s Implementing Regulations 34 C.F.R 106 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance require institutions, in section 106.41(c), to provide equal athletic opportunity for members of both sexes.
The following factors are considered when determining whether male and female students are provided with equivalent benefits, opportunities, and treatment:
- Whether the selection of sports and level of competition accommodate the interests and abilities of members of both sexes
- The provision and maintenance of equipment and supplies
- Scheduling of game and practice time
- Travel and per diem allowances
- Opportunity to receive coaching and academic tutoring
- Assignment and compensation of coaches and tutors
- Provision of locker rooms, practice and competitive facilities
- Provision of medical and training facilities and services
- Provision of housing and dining facilities and services
Additionally, the Title IX regulations specify that if schools or districts provide athletic financial assistance, they must provide reasonable opportunities for such awards for members of each sex in substantial proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.
Intercollegiate Athletics Policy Clarification: The Three-Part Test - Part Three
On December 11, 1979, the U.S. Department of Education’s Office for Civil Rights (OCR) issued additional guidance on the Title IX intercollegiate athletic regulatory requirements through the 1979 Policy Interpretation. The 1979 Policy Interpretation set out a three-part test that the OCR uses to assess whether an institution is effectively accommodating the athletic interests and abilities of its students to the extent necessary to provide equal athletic opportunity. On January 16, 1996, the OCR issued the Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (1996 Clarification) to provide additional clarification on all parts of the three part test, including the specific factors that OCR uses to evaluate compliance under Part Three of the Three-Part Test. July 11, 2003, Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance was issued.
In 2005, OCR issued Additional Clarification regarding application of the indicators in the 1996 Clarification that guided OCR's analysis of Part Three. The accompanying User's Guide included a prototype survey instrument (model survey) that institutions could use to measure student interest in participating in intercollegiate athletics and included specific guidance on its implementation. However, on April 20, 2010, the OCR issued a Dear Colleague letter withdrawing the 2005 Additional Clarification and accompanying documents. The following 2005 documents were withdrawn and are no longer guidance:
- 2005 Additional Clarification of Intercollegiate Athletics Policy: Three Part Test – Part Three
- 2005 User’s Guide to Student Interest Surveys under Title IX, including the prototype survey
- The 2005 technical report
All of the Federal policies on Part Three, except for the 2005 Additional Clarification, 2005 user’s guide and 2005 technical report remain in effect. Additionally, the 1979 Policy Interpretation provides more specific factors that the OCR reviews, beyond the Three Part Test.
The April 20, 2010 Dear Colleague letter also reaffirms, and provides clarification on the multiple indicators the OCR evaluates to determine whether an institution is in compliance with Part Three of the Three-Part Test. This letter also provides technical assistance on the non-discriminatory design and implementation of a survey as one method to assess student interest under Part Three.
- The February 2023, Supporting Equal Opportunity in School Athletic Programs: A Resource for Students and Families provides examples of the kinds of situations that could, depending upon facts and circumstances, raise Title IX concerns at any education level.
- The February 2023, Title IX and Athletic Opportunities in K-12 Schools: A Resource for Students, Parents, Coaches, Athletic Directors, and School Communities provides questions and examples to help students, parents, coaches, athletics directors, and the school community evaluate whether the school’s athletics programs are providing equal opportunities, benefits, and treatment for boys and girls teams and if the programs are meeting students’ athletic interests and abilities, as measured by the Three Part Test.
- The September 17, 2008 Dear Colleague Letter: Athletic Activities Counted for Title IX Compliance provides additional information regarding the factors that the Office for Civil Rights (OCR) considers when determining whether equal athletic opportunities are available.
- The June 25, 2007 Dear Colleague letter provides clarification on the rights of pregnant students participating in sports.
Title IX complaints should be filed with the individual school or district. However, a complaint may also be filed with the Office for Civil Rights: How to File a Discrimination Complaint.