Athletic opportunities for girls and women are protected by an array of civil rights laws that apply broadly, including schools, parks and recreation departments and the United States Olympic Committee. Title IX of the Education Amendments of 1972,
1 the Equal Protection Clause of the United States Constitution,
2 state and local Equal Rights Amendments,
3 the Ted Stevens Olympic and Amateur Sports Act
4 and state and local public accommodations laws
5 are all designed to prevent and remedy sex discrimination. These laws apply in various ways to a wide range of programs, such as physical education, intramural, club or other co-curricular school physical activity programs and physical activity programs offered by parks and recreation department. They also apply to interscholastic and intercollegiate varsity sports programs as well as sports programs sponsored by non profit organizations that utilize public facilities or are governed by national sports governing bodies under the auspices of the United States Olympic Committee. In general, the following guidelines are consistent with these laws and, importantly, with the body of research regarding the physical and psychological development of girls and boys.
I. WHEN IS IT APPROPRIATE OR NECESSARY THAT FEMALES AND MALES PARTICIPATE WITH AND AGAINST EACH OTHER IN SPORTS?
POSITION: Prior to puberty, females and males can compete against each other and can compete on co-ed teams.Prior to puberty, there is no gender-based physiological reason to separate females and males in sports competition. Instead, competition groupings should be organized around skill and experience. Girls and boys of equal skills should not be prohibited from playing on teams consisting primarily of the opposite sex. While separate-sex teams are not appropriate in instructional leagues, in some competitive youth sports leagues, it is recognized that girls may not have had the same opportunities to develop skills compared to similarly aged boys. In these situations, separate-sex leagues may be appropriate, grouping according to skill, rather than gender, when engaging in competitive play.
POSITION: After puberty, coed competition should be permitted and encouraged in situations in which there are equal numbers of females and males on both teams and there are rules governing fair competition between the sexes. Coed competition, when appropriately governed to prevent female or male advantage, is desirable. Mixed doubles in tennis, coed volleyball and coed basketball are good examples of competitions in which females and males on the same team and in equal numbers compete against identical number of females and males on the opposing team. As long as rules are designed to offset the physiological advantages of males, such competition is safe, healthy and desirable.
II. WHEN ARE SEPARATE-SEX TEAMS NECESSARY OR APPROPRIATE?
POSITION: After puberty, separate teams should be provided for girls and boys in competitive athletics. However, girls and boys should still participate in co-ed environments in instructional and recreational programs.Once boys reach puberty, in general, it is difficult for girls to compete against boys on equal terms. Due to the male hormone androgen, boys develop more muscle mass per unit volume of body mass than do girls. Thus, even though a girl and boy may be of equal height and weight, the boy will have more fat-free mass (a greater percentage of his body will be muscle) than the girl. He will be stronger, able to run faster, throw farther, etc. This is why after the age of 11 or 12, boys and girls typically compete (and should compete) on separate, same-sex teams. This is also the reason why separate-sex teams are required to give girls an equal chance to play. All sports (with few exceptions like shooting, archery, etc.) involve propelling an object through space or overcoming the resistance of a mass, thus strength is an advantage. If there were only one team open to both girls and boys, boys would be overrepresented because of their physiological strength advantage.
III. WHEN SHOULD GIRLS BE ALLOWED TO TRY OUT FOR BOYS' TEAMS?
POSITION: Girls should be allowed to play on a boys' team when girls possess the required skills and abilities, and when girls are underrepresented in the sports program.6
(1) When girls are underrepresented among a school's athletes and possess the interest and ability to participate in a sport that is only provided for the boys, a school has an obligation to either provide a team for the girls or allow the girls to participate on the boys' team.The OCR's Policy Interpretations of Title IX makes clear when schools must establish teams for girls in certain circumstances.
7 In particular, when a school offers a team in a contact sport for one sex and wishes to exclude members of the opposite sex from that sport, it must offer a team for members of the opposite sex under the following conditions: opportunities for members of the excluded sex have historically been limited there is sufficient interest and ability to sustain a viable team and there is a reasonable expectation for competition for that team.
8 For non-contact sports, the following condition is added: members of the excluded sex do not possess sufficient skill to be selected for a single integrated team or compete actively on such a team if selected.
9Also, the exclusion of females from participation in a particular sport solely offered to males when girls are underrepresented in the athletic department has been held to violate the Equal Protection Clause of the 14th Amendment of the United States Constitution.
10(2) When girls have the skills and physical abilities to compete on boys' teams, girls should be permitted to do so when they have fewer opportunities to compete within the athletic program.Physiological differences within the sexes are greater than the differences between the sexes. Thus, especially in sport leagues below the most elite level of sports participation, some individual girls will be able to compete with and against boys, despite the physiological advantages of most boys. When girls are underrepresented with regard to total athletic program opportunities, girls should be permitted to try out for and compete on boys' teams even if there is a comparable sports team for girls.
Whether analyzed under Title IX's regulations or under the 14th Amendment, the result is the same. For example, at School A only 40% of the student-athletes are female, but 50% of the student body is female. School A has two soccer teams, one for its females and another for its males. Because the females are underrepresented with regard to total athletic program opportunities, a girl with the requisite athletic ability can compete on the boys' soccer team.
(3) In sports with different rules by gender, a girl should be allowed to play on the boys' team when girls are underrepresented among the school's athletes. In a sport such as lacrosse, which is a contact sport for males and a non-contact sport for females, or in the case of baseball and softball, the two sports are different, and denying a girl the opportunity to try out for the boys' team is a violation of the 14th Amendment.
11(4) When girls are trying out for a boys' team, all the athletes should be required to pass the same fitness and skills tests. It is discriminatory to require a girl to pass a strenuous physical examination prior to participating on a boys' team if the exam is different from the one that the boys are required to pass.12It is wrong to assume that girls cannot participate on boys' teams due to inferior physical strength or other insufficient physical capabilities. When schools have tried to use gender as a proxy for safety, judges have struck down this notion as discriminatory, stating: "The evidence shows that range of differences among individuals in both sexes is greater than the average differences between sexes. The failure to establish any physical criteria to protect small or weak males from the injurious effects of competition with larger or stronger males destroys the credibility of the reasoning urged in sport of the sex classification… Any notion that young women are so inherently weak, delicate or physically inadequate that the state must protect them from the folly of participation in vigorous athletics is a cultural anachronism unrelated to reality.”
13(5) "Separate but equal" teams are justified for the same sport. A school is exempt from the obligation to allow females the opportunity to participate on a male's team when the ratio of female to male athletes at the school is equal to the ratio of female to male students or the school can demonstrate it has a history of continuous improvements for female athletes.Where a school is offering equal athletic opportunities for females and males, schools are not obligated to permit females to try out for the males' team.
14 Although females may have the desire to participate on a male team rather than on the female team in the same sport for the purpose of developing their abilities, the law specifically authorizes schools to offer separate teams for their female and male students. However, these separate teams must be treated equally. Differences in the treatment of women's and men's teams, with regard to aspects of sports like equipment, facilities, publicity or access to coaching, could violate Title IX or the 14th Amendment.
15IV. WHEN SHOULD BOYS BE ALLOWED TO TRY OUT FOR GIRLS' TEAMS?
POSITION: Boys should be allowed to play on a girls' team when there is no team for boys offered in that sport, boys are underrepresented with regard to total athletic opportunities and the strength and skill levels of the boys are comparable.
(1) Boys cannot participate on girls' teams when there is no team offered for boys in the sport if girls are underrepresented in the sports program.Because sports participation opportunities for girls have been historically limited and when sports participation opportunities for girls continue to be limited at a school, girls can try out for boys' teams
even if there are girls' teams in the same sport. Title IX articulates this right in non-contact sports, and this position has been upheld in 14th Amendment and Equal Rights Amendment cases for contact and non-contact sports.
16 Since the opportunities for boys have not been historically limited, and boys are typically overrepresented in athletic departments, boys do not have these same rights. While some courts in Equal Rights Amendment states have found that such a position violates the individual rights of boys,
17 other courts in ERA states
18 and federal courts supporting 14th Amendment protections have found that protecting the participation rights of girls as a previously discriminated against "class" outweigh the rights of an "individual" boy to play on a girls' team.
19(2) Teachers and coaches are obligated to ensure safe sports and physical activity environments. If the skill, size and strength of any participant, female or male, compared to others playing on the team creates the potential of a hazardous environment, participation may be limited on the basis of these factors, rather than the sex of the participant.For instance, a teacher or coach would not pair a heavyweight Olympic boxer with a novice lightweight, because the situation creates the potential of significant injury. Similarly, an unskilled and extraordinarily strong male may create the potential of significant injury if allowed to play on the girls' field hockey team. In such cases, objective decisions by experienced teachers should be made. In instructional settings, teachers are better able to control skill match-ups. In competitive athletics, that control is possible in sports that use weight classes, but may not be possible in other sports.
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Founded in 1974 by Billie Jean King, the Women's Sports Foundation is a national charitable educational organization seeking to advance the lives of girls and women through sports and physical activity. The Foundation's Participation, Education, Advocacy, Research and Leadership programs are made possible by individual and corporate contributions. The Foundation is located in Nassau County, N.Y. For more information, please call the Foundation at 800-227-3988 or visit www.WomensSportsFoundation.org.
*The Women's Sports Foundation thanks Deborah Brake, Professor, University of Pittsburgh, Elizabeth Farina, University of Pittsburgh student, Nancy Hogshead-Makar, Professor of Law, Florida Coastal School of Law, Olympic gold medalist swimmer, Terri Lakowski, Women's Sports Foundation Public Policy Coordinator, Donna Lopiano, Women's Sports Foundation CEO and Jocelyn Samuels, Vice President of Education and Employment, National Women's Law Center for their assistance in creating this document. ___________________________________________________________
120 U.S.C. Section 1681, et. seq. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Generally, there are three elements of the law as it applies to athletics: (1) Participation, (2) Scholarships and (3) Treatment. 34 C.F.R. § 106 (2002). In order to determine whether male and female students are being provided equitable participation opportunities to play sports, the high school or college must meet any one of the following three standards:
(1) Student-athlete participation is proportional to the student body. (For example, if 50% of the students are male and 50% of are female, then this criteria would be met if half of the athletes are male and half are female).
(2) The college or high school has a history and continuing practice of program expansion for the underrepresented gender (e.g., adding sports, expanding squad sizes).
(3) The college or high school has met the interests and abilities of the underrepresented gender.
44 Fed. Reg. 71413 (1979).
If athletic scholarships are being provided, the law requires that they must be provided in proportion to the student-athlete percentage. (For example if women comprise 55% of the student-athlete population, then women should be receiving 55% of the athletic scholarship dollars.) The treatment requirements requires that benefits and services provided to male athletes and female athletes be similar in quality, quantity, and suitability with 11 areas that must be examined in order to determine overall compliance this requirement. These 11 areas are:
• Equipment and Supplies
• Scheduling of Games and Practice Times
• Travel and Related Expenses
• Availability of Coaches and their Compensation
• Locker Rooms, Practice, and Competitive Facilities
• Medical and Training Services
• Publicity
• Support Services
• Recruitment of Student Athletes
• Housing and Dining Facilities and Services
• Availability of Tutors
44 Fed. Reg. 71413 (1979).
2United States Constitution. Fourteenth Amendment (1868). Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.
3 Various states have promulgated equal rights amendments (ERA) requiring that state laws treat men and women equally. State ERAs support the rights of female athletes to participate on men's teams in both contact and non-contact sports. In general, while males have the same rights to play on women's teams, such rights have not been upheld when women are underrepresented in athletic programs and the courts have considered the issue in that context.
4 36 U.S.C. § 220501, et seq.”, hereinafter the “Amateur Sports Act” established the current governance structure for amateur and Olympic sports in the United States. The Amateur Sports Act specifically addressed the obligations of the USOC and the National Governing Bodies (“NGBs”) to address gender discrimination. Specifically:
1. USOC to encourage women's sports. Section 220503 (12) notes that the USOC's purposes include to "encourage and provide assistance to amateur athletic activities for women."
2. NGBs must provide equal opportunity. Section 220522 (a) (8) mandates that an amateur sports organization cannot be recognized as an NGB unless it "provides an equal opportunity to amateur athletes, coaches, trainers, managers, administrators and officials to participate in amateur athletic competition, without discrimination on the basis of race, color, religion, age, sex, or national origin, and with fair notice and opportunity for a hearing to any amateur athlete, coach, trainer, manager, administrator, or official before declaring the individual ineligible to participate."
3. NGBs must have women on their boards. Section 220522 (a) (9) follows the previous provision, declaring that an amateur sports organization cannot be recognized as an NGB unless it "is governed by a board of directors or other governing board whose members are selected without regard to race, color, religion, national origin or sex, except that, in sports where there are separate male and female programs, it provides for reasonable representation of both males and females on such board of directors or other governing board."
4. NGBs must provide equitable support for women. Sec. 220524(6) says that a national governing body is under a duty to "provide equitable support and encouragement for participation by women where separate programs for male and female athletes are conducted on a national basis."
5 In athletics cases, public accommodation laws are used to prevent municipal recreation programs from discriminating on the basis of sex in the provision of programs or facilities or prevent businesses, organizations or clubs offering public services or using public facilities from discriminating on the basis of sex in membership, participation opportunities.
6 In high school athletics, male athletes receive 1.3 million more participation opportunities than their female counterparts. N.F.H.S.A.A. Participation Statistics (2005-2006). In collegiate athletics, male athletes outnumber female athletes 222,838 to 166,728 thus receiving 56,110 more opportunities to participate.) NCAA, Gender-Equity Report (2003-2004).
7 OCR Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, (Jan. 16, 1996); available at http://www.ed.gov/offices/OCR/docs/clarific.html.
8 Id. at 10.
9 Id.
10 Darrin v. Gould, 540 P. 2d 882 (Wash. 1975) (holding that the exclusion of two females, based solely on sex and who completely satisfied all requirements for participating in their school district's football program, violated the ERA).
11 Hoover v. Meiklejohn, 430 Supp. 164 (D. Colo. 1977) (overturning the Colorado High School Activity Association's policy of limiting soccer participation to the male sex.);
Lantz v. Ambach, 620 F. Supp 663 (S. D. N. Y. 1985) (overturning a school policy prohibiting mix gender competition in basketball, boxing, football, ice hockey, rugby, and wrestling).
12 Mercer v. Duke University, 190 F. 3d 643 (4th Cir. 1999).
13 Hoover v. Meiklejohn, 430 F. Supp. at.169.
14 O'Conner v. Board of Education of School District No. 23, 645 F. 2d 578 (7th Cir. 1981) (holding that the school district was within its rights to prohibit the female plaintiff from trying out for the male basketball team, since a female team already existed and the school was otherwise in compliance with the requirements of Title IX). Comment per Farina, Elizabeth. (2005) Unpublished manuscript prepared for Professor Deborah Brake, University of Pittsburgh, dated August 11, 2005.
15 34 C.F.R. § 106.41 (2002).
16 Kleczek v. Rhode Island Interscholastic League, 612 A. 2d 734 (R. I. 1992) (holding that an interscholastic league policy was allowed to prohibit men from participating on a women's field hockey team when no men's field hockey team was provided);
Petrie v. Illinois High School Association, 394 N. E. 2d 855 (Ill. App. Ct. 1979) (holding that preserving and fostering athletic competition for females, and preventing unfair athletic domination by males were compelling state interests, and allows the school's policy to restrict membership on the only volleyball team to females). Comment per Farina, Elizabeth. (2005) Unpublished manuscript prepared for Professor Deborah Brake, University of Pittsburgh, dated August 11, 2005.
17 Attorney General v. Massachusetts Interscholastic Athletic Association, Inc., 393 N. E. 2d 284 (Mass. 1979) (overturning an interscholastic league policy forbidding males to participate in females' sports teams, but permitting females to participate in males' teams). Comment per Farina, Elizabeth. (2005) Unpublished manuscript prepared for Professor Deborah Brake, University of Pittsburgh, dated August 11, 2005.
18 B.C. v. Board of Education, Cumberland Regional School District, 531 A. 2d 1059 (N.J. Super. 1987) (holding that preserving women's athletic opportunities was an important governmental objective, and that prohibiting males from participating in females' teams was substantially related to that objective);
Petrie, 394 N. E. 2d at 863 (holding that preserving and fostering athletic competition for females, and preventing unfair athletic domination by males were compelling state interests, thus allowing the school's policy to restrict membership on the only volleyball team to females). Comment per Farina, Elizabeth. (2005) Unpublished manuscript prepared for Professor Deborah Brake, University of Pittsburgh, dated August 11, 2005.
19 Clark v. Arizona Interscholastic Association, 695 F. 2d 1126 (Ariz. 1982), (holding that excluding males from participating on the female volleyball team did not violate Equal Protection rights of the male students because it was a substantially related method of achieving the important objectives of promoting sport opportunities for females and redressing past discrimination); Mularadelis v. Haldane Central School Board, 74 A.D. 2d 248 (N.Y. App. Div. 1980), (holding that the petitioner's exclusion was justified because males in general still had more opportunities than females in the institution's sports program). Comment per Farina, Elizabeth. (2005) Unpublished manuscript prepared for Professor Deborah Brake, University of Pittsburgh, dated August 11, 2005.