Title IX and Athletics: Legal Basics

Title IX and Athletics: Legal Basics

February 9, 2023
Title IX and Athletics: Legal Basics
Title IX of the Education Amendments of 1972 (Title IX)
role in enforcing Title IX against schools that receive ED
prohibits discrimination on the basis of sex in education
funding. OCR investigates complaints of discrimination
programs and activities that receive federal financial
against recipients and also publishes guidance, such as
assistance. 20 U.S.C. § 1681. Although the statute does not
“Dear Colleague” letters, explaining the meaning of, and
mention athletics, long-standing regulations implementing
how to comply with, Title IX and its implementing
Title IX provide that recipients may not discriminate based
regulations.
on sex in athletics programs or activities. 34 C.F.R.
§§ 106.41 (athletics); 106.37 (financial assistance). As
Separate Athletics Teams
recipients of federal funding, most private and public
While Title IX prohibits sex discrimination in recipient
postsecondary institutions, as well as public schools at the
schools’ athletics programs, this does not mean all sex-
K-12 level, are subject to Title IX (the statute does have
based distinctions are banned. According to Title IX
exemptions, including for admissions policies at certain
regulations, schools may offer separate athletics teams for
educational institutions). Since the law’s passage, women’s
each sex where selection is based on competitive skill or the
participation in athletics has increased substantially at both
activity is a contact sport. In addition, subject to the
the high school and college levels.
obligations described below, while schools must provide
equal athletics opportunity to members of both sexes, they
To clarify the requirements in Title IX’s athletics
do not necessarily need to offer the same sports for each
regulations, the U.S. Department of Health, Education, and
sex. That said, if a school only offers a sport for one sex,
Welfare issued a Policy Interpretation in 1979 to offer
and opportunities for the other sex have been previously
guidance for covered colleges and universities operating
limited, a student from the excluded sex must be allowed to
intercollegiate athletics programs. Congress soon after split
try out for the team unless it is a contact sport. (Contact
that agency into the Department of Health and Human
sports include boxing, wrestling, rugby, ice hockey,
Services and the Department of Education (ED). Drawing
football, and basketball.)
from Title IX’s athletics regulations, the Policy
Interpretation lays out three basic categories in which
Three Categories of Obligations
recipient schools face Title IX obligations with respect to
The three general categories of legal obligations that Title
their athletics programs and activities:
IX imposes on school athletics programs relate to
(1) scholarships; (2) equivalent program treatment; and
 Proportional Financial Assistance (i.e., scholarships)
(3) accommodation of interest and abilities.
 Equivalent Benefits and Opportunities
Proportional Scholarships
When colleges and universities award athletics
 Effective Accommodation of Interest and Abilities
scholarships, they must offer reasonable opportunities for
awards for members of each sex in proportion to the
While directed toward intercollegiate athletics, the general
number of students participating in intercollegiate athletics.
principles and standards in the Policy Interpretation often
This obligation does not mean the dollar amount of
apply to interscholastic athletics programs at the elementary
scholarships for men and women must be perfectly equal.
and secondary levels, as well as to club and intramural
Instead, total assistance awarded to each sex must be
programs. This In Focus provides background on Title IX’s
substantially proportionate to the participation rates of men
athletics requirements, including the basics of what legal
and women. Put another way, if 60% of an institution’s
obligations recipient schools face, how the law is enforced,
intercollegiate athletes are women, then the total amount of
and emerging legal questions relevant to athletics.
aid to women athletes should be approximately 60%.
Disparities can be justified by certain legitimate,
Enforcement
nondiscriminatory factors.
Title IX is generally enforced in two ways: (1) through
private lawsuits brought directly against recipients in
Equivalent Benefits and Opportunities
federal court and (2) by federal agencies that provide
Title IX regulations require recipients that operate athletics
funding to recipients. Federal agencies that distribute
programs to provide “equal athletic opportunity for
federal financial assistance to education programs are
members of both sexes.” In determining whether this
responsible for promulgating regulations to implement Title
standard is met, a range of factors are relevant, including
IX and may terminate or suspend assistance in cases of non-
equipment; scheduling; travel expenses; coaching and
compliance. Because ED distributes substantial financial
tutoring, including compensation thereof; practice and
assistance in the elementary, secondary, and postsecondary
competitive facilities; medical and training facilities and
contexts, ED’s Office for Civil Rights (OCR) plays a lead
https://crsreports.congress.gov

Title IX and Athletics: Legal Basics
services; and publicity, as well as recruitment and support
responsive to the developing interests and abilities of an
services.
underrepresented sex. A history of program expansion
could be shown through adding or upgrading teams to
According to OCR, institutions must provide equivalent
intercollegiate status as well as increasing the number of
treatment, benefits, and services with respect to these
participants for the underrepresented sex. Evidence of a
components of the athletics program. Each component is
continuing practice of expansion may be shown through
examined by comparing availability, quality, the kinds of
factors such as current implementation of a
benefits, the kinds of opportunities, and the kinds of
nondiscriminatory policy for requesting the addition or
treatment. According to the equivalency standard, identical
elevation of sports and communication of this policy to
benefits or treatment are not required, as long as the overall
students.
effects of any differences are negligible. Compliance issues
can arise if disparities are “of a substantial and unjustified
Full and Effective Accommodation: The third prong of
nature in a school’s overall athletics program” or “if
the test can be satisfied if a school can show that students of
disparities in individual program areas are substantial
an underrepresented sex are not denied opportunities
enough” to deny equal athletic opportunity.
because their interests and abilities are fully and effectively
accommodated. OCR is to consider whether there is an
Equality of opportunity is not measured through a sport-
unmet interest in a sport, ability to sustain a team in that
specific comparison. Instead, schools have flexibility in
sport, and “a reasonable expectation of competition for the
distributing athletics resources.
team.” If each of these factors is present, then a recipient
has not satisfied the third prong.
Effective Accommodation of Interests and Abilities
Title IX regulations require schools that offer athletics
OCR recommends that institutions have procedures for
programs to “effectively accommodate the interests and
determining the interests and abilities of students of the
abilities of members of both sexes.” OCR assesses whether
underrepresented sex, including documentation and
an institution has effectively accommodated the athletic
monitoring of the underrepresented sex’s participation in
interests and abilities of students sufficient to provide equal
club and intramural sports. OCR recommends similar
athletic opportunities by using a “Three-Part Test.” Under
examination of the participation of the underrepresented sex
this test, institutions will be in compliance with the
in high school athletics programs, amateur associations, and
effective accommodation requirement if
community leagues in the areas from which an institution
draws its students. This type of documentation may be
1. “Intercollegiate level participation
needed to demonstrate that an institution is properly
opportunities for male and female
assessing the interests and abilities of its students. Surveys
students are provided in numbers
are one method of accomplishing this goal.
substantially proportionate to their
respective enrollments”; or
Emerging Legal Issues
2. “[T]he institution can show a history and
One developing legal issue regarding athletics and Title IX
continuing practice of program
is the participation of transgender students on sports teams.
expansion” responsive to the interests of
State laws and policies on the matter range from permitting
an underrepresented sex; or
transgender students to participate consistent with their
gender identity to prohibitions on doing so. In turn, legal
3. The institution is “fully and effectively”
challenges alleging Title IX violations have been brought
accommodating the interests and abilities
against both approaches. For instance, students have
of an underrepresented sex.
challenged policies that permit transgender girls to
Recipient schools need to meet only one of the prongs to
participate in sports consistent with their gender identity,
comply with the effective accommodation requirement.
arguing it deprives them of equal athletic opportunities.
Likewise, transgender students prohibited from competing
Substantially Proportionate: An inquiry into whether
in sports consistent with their gender identity have
participation opportunities are substantially proportionate to
challenged such policies as discrimination based on sex in
male and female enrollment is conducted on a case-by-case
violation of Title IX.
basis, with consideration of the specific circumstances and
size of a program. For instance, if an institution’s
In June 2022, ED issued a Notice of Proposed Rulemaking
enrollment percentages for each sex match participation
that would address other aspects of Title IX, such as sex-
rates, this prong is satisfied. According to OCR, the test can
based harassment and gender identity more generally. See
also be met if the number of opportunities “required to
CRS Legal Sidebar LSB10804, Education Department
achieve proportionality would not be sufficient to sustain a
Proposes New Title IX Regulations: Responding to Sex
viable team.” In other words, if the participation rate for a
Discrimination and Harassment at School, by Jared P.
given sex is less than the enrollment figures but the
Cole; and CRS Legal Sidebar LSB10830, Education
difference in prospective additional athletes would not be
Department Proposes New Title IX Regulations: Sexual
enough to sustain a viable intercollegiate team, then the test
Orientation and Gender Identity, by Jared P. Cole. The
may be satisfied.
agency indicated it would conduct a separate rulemaking
addressing athletics that would specifically establish what
Program Expansion: The second prong of the three-part
criteria schools may use to determine a student’s ability to
test asks if an institution can show a history and continuing
participate on a particular female or male team.
practice of program expansion that is demonstrably
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Title IX and Athletics: Legal Basics

Jared P. Cole, Legislative Attorney
IF12325

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