Title IX proved to be a watershed. Within two years, the number of high school girls playing sports soared from fewer than 300,000 to [3.5] million. … The increases in girls and women playing sports has an impact beyond athletics. Studies show that women who play sports are healthier, get better grades, and have higher graduation rates.

—Armor, Luther, Berkowitz, Jacoby, & Schnell, 2022

In the 50 years since Congress enacted Title IX of the Education Amendments of 1972, athletic opportunities for females have significantly increased. However, gross inequities still remain. As one collegiate female athlete said, “I think that we’ve just gotten used to kind of playing with less … less jerseys or less food, worse travel, worse hotels. That’s just the norm.” (Armor, Luther, Berkowitz, Jacoby, & Schnell, 2022). After a video documenting the stark disparities in the men’s and women’s NCAA tournament weight rooms went viral in 2021, the public became increasingly aware of inequities at the collegiate level.

But has similar attention been given to inequities in secondary schools? A recent article in The New York Times discussed gender equity in sports and found that since 2021, “the number of complaints involving sex discrimination in athletics from kindergarten to 12th grade has outpaced those involving colleges by 40 to one” (Pennington, 2022). According to state athletic association leaders, it is possible that most high schools are out of compliance with Title IX. An attorney who has filed Title IX lawsuits against schools in over 30 states explained that he has never lost a case (Pennington, 2022).

School leaders must understand their evolving legal obligations under Title IX. Most are aware that this federal statute prohibits any education program or activity receiving federal funding from discriminating, excluding, or denying benefits based on sex. This article provides guidance to encourage greater sex and gender equity, as well as recommendations to avoid litigation and Office for Civil Rights (OCR) complaints. It is intended to update school leaders’ knowledge about (1) inequitable programming and (2) transgender athletes. The article does not discuss additional Title IX issues surrounding harassment and hazing in athletics, but leaders should ensure their coaches and other colleagues do not exhibit deliberate indifference to these incidents which often occur in locker rooms and at team events.

Inequitable Programming

Title IX mandates that school districts must ensure an equitable athletic experience for all students regardless of gender. Therefore, regardless of whether funding comes from an external source (i.e., a football booster club), the district remains responsible for equitable facilities, staffing, game/practice schedules, and transportation (Pennington, 2022).

To determine compliance, OCR applies the “three-prong test” which requires a district to show one of the following: (1) the sports participation opportunities for female students are provided in numbers that are substantially proportionate to female school enrollment; (2) a history and continuing practice of expanding athletic programs for females; and (3) full and effective accommodation that provides enough opportunities to match female students’ interests and abilities (Green, 2021).

Many Title IX complaints settle out of court. For example, a Georgia family settled with their school district after the district agreed to invest $750,000 to upgrade the softball facilities, as well as pay the parents’ attorney fees. The mother said they filed the lawsuit because the “softball field was horrible; a girl broke her ankle stepping in one of the many holes in the outfield. … We didn’t have protective barriers in front of the dugouts, the foul lines were washed out, and the grass was nonexistent in some parts. Meanwhile, the boys’ baseball field had a beautiful press box, fantastic dugouts, and a $10,000 pitching machine.” (Pennington, 2022).

Similar cases are pending in federal courts. One before the 10th Circuit Court of Appeals involves a group of parents suing a Utah district for not offering girls’ tackle football (Gordon v. Jordan Sch. Dist., 2021). Another lawsuit was filed in a Pennsylvania federal district court which claimed the school district violated Title IX for not providing an equal opportunity for female students to play ice hockey. Parents are asking for at least $100,000 in damages (Farenish, 2022).

Transgender Athletes

Title IX’s application to athletics has led many to ask whether Title IX extends to transgender athletes. In Bostock v. Clayton Co. (2020), the U.S. Supreme Court decided that sex-based discrimination encompasses sexual orientation and gender identity. Although the Court did not analyze Title IX, the federal law that it did interpret—Title VII of the Civil Rights Act—is related to Title IX because the text of both statutes prohibits discrimination based on sex. Therefore, after Bostock clarified that sex-based discrimination includes sexual orientation and gender identity discrimination, many assumed that Title IX should be interpreted similarly.

Multiple courts across the U.S. have consistently ruled that Title IX requires schools to treat transgender students consistent with their gender identity. In a victory for transgender athletes, a Connecticut federal district court dismissed a lawsuit brought by cisgender female track athletes who claimed the state athletic association’s policy allowing transgender student participation violated Title IX (Soule v. Conn. Assn. of Schs., 2021).

The U.S. Department of Education has declared that Title IX covers sexual orientation and gender identity discrimination; however, litigation continues because multiple states have challenged the Department’s interpretation (Tenn. v. U.S. Dept. of Educ., 2022). Currently, the proposed Title IX regulations are not finalized. Plus, the Department has sidestepped the controversial issue of whether Title IX requires public schools to allow transgender athletes to participate in athletics consistent with their gender identity. The Department announced that it will undergo a separate rule-making process for this issue, but the process is predicted to take over a year (Stanford, 2022).

In the interim, school leaders and transgender athletes remain without clear federal guidance, and they must navigate an ever-changing maze of court decisions, state laws, and athletic association rules (Barnes, 2022). California is the only state that has enacted a law to protect transgender athletes, and 18 states have enacted legislation banning transgender athletes from participating in sports consistent with their gender identity (Movement Advancement Project, 2022). It is helpful that ESPN has created an online summary outlining each state’s policies that includes the states’ interscholastic athletic association rules (Barnes, 2022).

Some state laws conflict with athletic association rules or court decisions. For example, a West Virginia state law prohibits any athlete that was assigned male at birth from participating in any female sports. A West Virginia federal district court, however, blocked enforcement of the law when it sided with an 11-year-old transgender athlete. School officials had told the athlete, who had been living as a girl since third grade, that she could not join her middle school cross country and track teams because of the West Virginia law, but the court ordered that the district must allow her to participate (B.P.J. v. W.Va. Bd. of Educ., 2021). Courts in at least four states (West Virginia, Indiana, Idaho, Utah) have blocked enforcement of state laws banning transgender athletes from participating in school sports (Movement Advancement Project, 2022). Clearly, the law surrounding transgender athletes remains in flux.

Recommendations

Despite the legal uncertainties related to transgender athletes, school leaders can strive to provide equal opportunities in sports by considering the following recommendations:

  1. Conduct an equity audit of your school’s athletic opportunities. Compare and contrast aspects between your boys’ and girls’ teams such as amount of practice time, equipment, uniforms, scheduling, facilities, publicity, and quality of coaches (Green, 2021).
  2. Pay careful attention to which court decisions and state laws are directly applicable to your district.
  3. Review the resources cited in this article to identify your state’s laws and policies related to the participation of transgender athletes.
  4. Require professional development for your Title IX coordinators, athletic directors, and coaches to increase their legal literacy about sex-based discrimination.
  5. Ask yourself to name female and male sports teams in your state. Then, let the difference in those numbers motivate you to foster increased equity in athletics.

Janet R. Decker, JD, PhD, is an associate professor in the School of Education at Indiana University, and a co-author of Legal Rights of School Leaders, Teachers, and Students. Ryan D. Decker is a sixth grader and sports enthusiast who studied this topic for a school assignment for Donna Bernens-Kinkead. He served as an inspiration and research assistant for this article.

References

Armour, N., Luther, J., Berkowitz, S., Jacoby, K., & Schnell, L. (2022, May 4). ‘They’ve had 50 years to figure it out’: Title IX disparities in major college sports haven’t gone away. USA Today. blufftontoday.com/in-depth/news/investigations/2022/03/30/title-ix-50th-anniversary-women-short-changed-major-college-sports/7090806001

Barnes, K. (2022, June 7). Alabama to Wyoming: State policies on transgender athlete participation. ESPN. espn.com/espn/story/_/id/32117426/state-policies-transgender-athlete-participation

B.P.J. v. W. Va. State Bd. of Educ., 550 F.Supp.3d 347 (S.D. W. Va. 2022).

Farenish, M. (2022, Sept. 4). Parents sue State College School District, claiming Title IX violation over ice hockey. NorthCentralPA. northcentralpa.com/news/crime/parents-sue-state-college-school-district-claiming-title-ix-violation-over-ice-hockey/article_b340b7fc-293f-11ed-b0e5-67ca20291bc8.html

Gordon v. Jordan School District, 522 F.Supp.3d 1060 (D. Utah 2021), appeal docketed, No. 21-4044 (10th Cir. Mar. 31, 2021).

Green, L., (2021, Apr. 27). Nine ways Title IX protects high school students. NFHS. nfhs.org/articles/nine-ways-title-ix-protects-high-school-students

Movement Advancement Project, (2022) Equality maps: Bans on transgender youth participation in sports. lgbtmap.org/equality-maps/sports_participation_bans

Pennington, B. (2022, June 22). The real enforcers of Title IX: Angry parents. The New York Times. nytimes.com/2022/06/22/sports/title-ix-gender-parents.html?login=email&auth=login-email

Soule v. Conn. Ass’n of Sch., 2021 WL 16177206 (D. Conn. 2021).

Stanford, L. (2022, Sept. 8). Transgender student athletes ‘just want to play.’ Will federal law assure they can? Education Week. edweek.org/leadership/transgender-student-athletes-just-want-to-play-will-federal-law-assure-they-can/2022/09

Tenn. v. U.S. Dept. of Educ., 2022 WL 2791450 (E.D. Tenn. 2022), appeal docketed, No. 22-5807 (6th Cir. Sept. 13, 2022).