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[Federal Register Volume 89, Number 247 (Thursday, December 26, 2024)]
[Proposed Rules]
[Pages 104936-104937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30921]

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DEPARTMENT OF EDUCATION

34 CFR Part 106

[Docket ID ED-2022-OCR-0143]
RIN 1870-AA19

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; Withdrawal

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Notice of proposed rulemaking; withdrawal.

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SUMMARY: The U.S. Department of Education (Department) is withdrawing 
the notice of proposed rulemaking entitled ``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'' published in the Federal Register on April 13, 
2023. The proposed rule would have amended the regulations implementing 
Title IX of the Education Amendments of 1972 (Title IX).

[[Page 104937]]

DATES: The notice of proposed rulemaking published in the Federal 
Register on April 13, 2023, 88 FR 22860, is withdrawn as of December 
20, 2024.

FOR FURTHER INFORMATION CONTACT: Bianca Costello, U.S. Department of 
Education, 400 Maryland Avenue SW, Fifth Floor, Washington, DC 20202. 
Telephone: (202) 219-2126. Email: [email protected].
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION: 

Background

    On April 13, 2023, the Department published a notice of proposed 
rulemaking titled ``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'' 
(Athletics NPRM) in the Federal Register that proposed amending 34 CFR 
106.41 of the Department's regulations implementing Title IX. 88 FR 
22860. The intent of the Athletics NPRM was to ``propose a regulatory 
standard under Title IX that would govern a recipient's adoption or 
application of 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.'' Id. The Department's proposed 
rule provided 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 team consistent with their gender 
identity, such criteria must, for each sport, level of competition, and 
grade or educational 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. 
88 FR 22891.
    The Department invited the public to comment on all aspects of the 
Athletics NPRM, as well as the Regulatory Impact Analysis. In response, 
the Department received more than 150,000 public comments on the 
Athletics NPRM during the 30-day comment period.

Withdrawal of the Notice of Proposed Rulemaking and Termination of the 
Rulemaking Proceeding

    The Department reviewed and considered all comments submitted 
during the comment period and appreciates the time and effort spent by 
commenters in sharing their views with the Department. Commenters 
offered a broad spectrum of opinions on the Athletics NPRM. Some 
commenters expressed general support for the proposed regulation, and 
some asked the Department to modify the proposed regulation to provide 
for more students to participate on a sex-separate athletic team 
consistent with their gender identity, particularly at the elementary 
and secondary school levels. Other commenters opposed the proposed 
regulation in its entirety and asked the Department to withdraw the 
Athletics NPRM. Numerous commenters expressed concerns about the 
application of the proposed regulation in practice, arguing that the 
proposed regulation was unclear or too complex for recipients to 
implement, and many commenters offered alternative regulatory text for 
the Department's consideration to clarify, simplify, elaborate on, or 
substantively change the focus and impact of the proposed rule. 
Additionally, a significant number of commenters included discussions 
of case law, scientific studies and research papers, and existing 
athletic association policies and practices regarding athletic 
eligibility criteria that, according to the commenters, supported the 
adoption, modification, or withdrawal of the proposed regulation.
    The Department recognizes that there are multiple pending lawsuits 
related to the application of Title IX in the context of gender 
identity, including lawsuits related to Title IX's application to 
athletic eligibility criteria in a variety of factual contexts. In 
light of the comments received and those various pending court cases, 
the Department has determined not to regulate on this issue at this 
time. Therefore, the Department hereby withdraws the Athletics NPRM and 
terminates this rulemaking proceeding. We do not intend for a final 
rule to be issued on this NPRM. If, in the future, we decide it is 
appropriate to issue regulations on this topic, we will do so via a new 
notice of proposed rulemaking, subject to the requirements of the 
Administrative Procedure Act, 5 U.S.C. 551, et seq.
    To the extent the Department receives complaints of discrimination 
about a recipient's obligation to provide equal opportunity to 
participate in athletics regardless of sex, it will continue to apply 
the longstanding legal standards reflected in the athletics regulations 
at 34 CFR 106.41 and in U.S. Dep't of Health, Educ., and Welfare, 
Office for Civil Rights, A Policy Interpretation: Title IX and 
Intercollegiate Athletics, 44 FR 71413 (Dec. 11, 1979), https://www.govinfo.gov/content/pkg/FR-1979-12-11/pdf/FR-1979-12-11.pdf.
    The Athletics NPRM issued on April 13, 2023, is hereby withdrawn, 
and the rulemaking proceeding for that NPRM is terminated as of the 
date of publication of this notice in the Federal Register.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3, braille, 
large print, audiotape, compact disc, or other accessible format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other Department documents published in the 
Federal Register, in text or Portable Document Format (PDF). To use 
PDF, you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access Department documents published in the Federal 
Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

Miguel Cardona,
Secretary of Education.
[FR Doc. 2024-30921 Filed 12-20-24; 2:00 pm]
BILLING CODE 4000-01-P
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