Advocacy Alert: USDE Proposes Rulemaking to Amend Regulations Implementing Title IX

As part of the Middle States Commission on Higher Education’s (MSCHE) strategic priority to promote advocacy initiatives for its members and others, we want to bring to the attention of all constituents the United States Department of Education’s (USDE) notice of proposed rulemaking to Amend Regulations Implementing Title IX of the Education Amendments of 1972 (Title IX). Read USDE’s Notice.

According to the notice,

the Department proposes amending § 106.41(b) of its Title IX regulations to provide that, if a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity, those criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied. As discussed below, the proposed regulation would not prohibit a recipient’s use of sex-related criteria altogether. Instead, the proposed regulation would require that a recipient meet this standard for any sex-related criteria that would limit or deny students’ eligibility to participate on a male or female team consistent with their gender identity.

Submitting Public Comments

Institutions should submit written comments via the Federal Rulemaking Portal by May 15, 2023.