Title IX, Sports and Language

The confusion surrounding Title IX is exacerbated by the use of terms that have different meanings within and outside of Title IX’s application to sports. We saw a little of that yesterday, in regulations and interpretations. The regulations require “equal athletic opportunity.” We usually think of the phrase “equal opportunity” as synonymous with non-discrimination, a rule that excludes consideration of prohibited criteria. Consider, for example, “Equal Employment Opportunity.” But in Title IX and sports, “equal opportunity” has become something else entirely.

The contrast between the two types of equal opportunity can be seen in cases involving women who want to participate in a “male” football or wrestling team, where the school does not have women’s teams for those sports. Because Title IX regulations specifically allow schools receiving federal funds to have single-sex teams in “contact sports,” plaintiffs in these cases generally sue under the Equal Protection Clause if the school is public. And they usually win. Furthermore, courts usually emphasize that the claimant is not seeking a legal right to a spot on the team, but only an “opportunity” to try out. In one case, a Kansas district court, after dismissing a plaintiff’s Title IX claim and then ultimately granting a preliminary injunction on her equal protection claim, noted that Title IX defined “equal opportunity” in a manner that is significantly different from the definition of “equal protection.” It was correct. Just read Judge Lagoa’s concurrence on Title IX and sports in the Eleventh Circuit’s recent en banc opinion in Adams v. School Bd. Ivanjska Countywhere he repeatedly argues that allowing trans women to compete on women’s sports teams would deprive women of “equal opportunity” under Title IX.

Indeed, the nominally male football and wrestling teams in public schools are actually open teams because women have the constitutional right to try out for them (if there is no women’s team in the sport). The same goes for schools (private or public) that receive federal funding if they have all-male golf or tennis teams. Is every place on these teams an “opportunity” for women? It is not in the language of the Title IX regulations that apply to sports; a female only has a “chance” if she makes the team.

The cases did nothing to clear things up. Exactly the opposite.

In one of the earliest and most famous athletic Title IX cases, Cohen v. Brown University, the First Circuit, holding that Brown violated Title IX because it demoted women’s (as well as men’s) varsity teams, insisted that Title IX requires only “gender-blind equality of opportunity for its students,” and that the same analysis would apply if Brown had open teams instead of gender-segregated ones. He also strongly insisted that Title IX does not include “affirmative action” or mandate “preferences.” Instead, it was just an anti-discrimination law, just like its model, Title VI. Just imagine a court determining whether a school is in compliance with Title VI. counting how many members of different races were on college teams and determining whether the proportion for each race was similar to that race’s proportion in the undergraduate population.

The Seventh Circuit, in contrast, in Kelley v. Bd. commissioner, evaluated Title IX’s requirement to consider sex-distributed opportunities under the Fifth Amendment, concluding that it passed scrutiny because “Congress has broad authority under the Fifth Amendment’s Due Process Clause to remedy past discrimination,” and satisfies intermediate scrutiny under the Fifth amendment. (Of course, that argument assumes that Congress itself, not HEW, created the rules.) Because sex-neutral, nondiscriminatory measures by government agencies are not subject to heightened scrutiny, the court held, at least implicitly, that Title IX. not such a statute, but one which gives precedence. On the other hand, the court also confusingly stated that the purpose of Title IX was only to “prohibit educational institutions from discriminating on the basis of sex.”

The sixth circle, in University of Miami Wrestling Club vs. University of Miamisupported the elimination of various men’s teams on the grounds that Title IX “targets opportunities for the underrepresented gender[] and does not give rights to the historically overrepresented sex.”

Language difficulties are understandable. Title IX is generally a non-discrimination law. Schools that may have discriminated against women in admissions or institutions in the past have no obligation to do anything but treat people equally regardless of gender. They can have “soprano only” or “tenor only” choirs. Nothing in the text of the statute suggests any similarity to laws that expressly grant benefits to members of groups defined by race, national origin, or sex (for example, contracting the law on fallow land). However, in athletics, Title IX has been interpreted to not only permit, but to mandate, a system that provides women with “opportunities” different, and possibly greater, than they would have if athletic teams could have members of either gender and if given the choice were made exclusively skill.

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Tomorrow we’ll return to the issue of trans women playing on women’s sports teams, discussing a case recently settled by the Second Circuit in which plaintiffs argued that allowing trans women to do so violated Title IX. We’ll also discuss some other statutes and whether the concept of “equal athletic opportunity” from Title IX sports can apply.

But before that I want to clarify two things. First, I hope that my legal analysis in these blog posts will not leave readers with the impression that I favor only open sports or that I am against women’s sports teams. Neither is true. I’m a big fan of women’s only sports; as I described on Tuesday, I think such sports are allowed under Title IX and the Equal Protection Clause if heightened oversight is applicable because post-puberty women would have difficulty competing successfully on open teams. I might even support laws requiring schools to have separate teams for women. I just doubt if Title IX is really that law.

Which brings me to my second point. Some might argue that since Congress did nothing about the interpretations that essentially turned Title IX into a law requiring women’s teams, we should simply accept that state of affairs as if Congress enacted it. After all, the original regulations were specifically promulgated at the request of Congress, held hearings on them, approved by the President, etc. The Civil Rights Act of 1987 was enacted to restore the scope of Title IX (among other statutes), including its reach in sports, by expanding the “programs” that Title IX reached in a school that receives federal funds.

This is by no means a frivolous argument and I will not go into the nuances Chevron or Auer (or is Kiser?) respect. But I’m not convinced. First, I cannot help believing that separate women’s sports teams are a “preference” now “required” by administrative interpretations because of the “imbalance” that would result from open teams, and that the statute itself (20 USC § 1681(b)) prohibits it. But even if I were convinced, I’d still like our enforcement agencies and our courts to be more honest about what’s going on. The first subsection of the regulation (34 CFR 106.41(a)), after all, says that segregated teams are prohibited. Interpretations and clarifications always suggest that open teams are allowed, even when the specifics of the regulations seem to suggest otherwise. The courts, or at least some of them, suggest that the application of Title IX. on sports is no different from application in other areas. But of course it is.

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