The Trump administration has dropped a proposal that would have made it so schools no longer had to provide both boys and girls the chance to play noncontact sports as a condition of receiving U.S. Department of Energy funding.
The federal agency took the unusual step of proposing the rule change under Title IX, the federal law prohibiting sex discrimination at schools, in May. The U.S. Department of Education generally takes the lead on Title IX regulations.
The Energy Department change would have rescinded a requirement that schools receiving money from the agency allow all students to try out for noncontact athletic teams when they don’t have both boys’ and girls’ teams.
The department said the current rules—which, for example, allow girls to try out for a baseball team if their school doesn’t have a softball team—“ignore differences between the sexes which are grounded in fundamental and incontrovertible reality while also imposing a burden on local governments and small businesses who are in the best position to determine the needs of their community and constituents.”
The agency originally said the rule change would take effect in July unless it received “significant adverse comments.”
In the end, the proposal attracted more than 21,000 comments, many of them sharply critical, and the Energy Department withdrew it on Sept. 10 after first delaying its effective date. K-12 Dive first reported the rule withdrawal.
The Energy Department rule change would have applied to far fewer schools than a rule change from the Education Department.
Roughly 300 universities and 80 school districts receive Energy Department funds, according to data from the agency, compared with the vast majority that receive money from the Education Department.
But while the Trump administration proposed changing the Energy Department’s Title IX rule, a comparable Education Department rule with the equal opportunity requirement for noncontact sports remains in effect.
Some observers saw the energy agency’s foray into Title IX rulemaking as the latest step in the Trump administration’s multiagency approach to enforcing its social agenda in schools.
The administration has involved the Health and Human Services and Justice departments, in particular, in taking action against schools, states, and athletic leagues for allowing transgender student-athletes to compete on girls’ and women’s teams, which the Trump administration contends is a violation of Title IX.
Others noted that the Energy Department used a procedure to propose the Title IX rule change, called direct final rulemaking, that allowed it to avoid providing the formal public comment period that’s typically required when agencies propose major regulations or major changes to them.
A group of administrative law experts submitted a comment raising concerns about the agency’s use of direct final rulemaking for this change.
In its Sept. 10 notice withdrawing the rule change, the Energy Department said the move didn’t preclude it from proposing a similar change in the future. A department spokesperson didn’t immediately respond to a request for comment Monday on whether it would try to propose the same change again.
Along with the Title IX policy, the Energy Department in May proposed a handful of other changes to its nondiscrimination rules for recipients of agency funding using the same process.
One rule proposal would revoke a provision that new, department-funded construction be accessible to people with disabilities. Another would rescind a requirement to provide information in languages other than English when needed and a rule that recipients of department funds not run their programs in a way that might have discriminatory effects—a concept known as disparate impact that the Trump administration opposes in several contexts.
Those rule changes are pending but delayed.
