Title IX and Its Administrative Interpretations
As I mentioned at the outset, one of my motivations for writing Gender Identity, Sports, and Affirmative Action: What’s Title IX Got To Do With It? was trying to figure out when it became clear that schools receiving federal funds could not simply have one sports team for each sport for all members of their community. To answer that question, we need to examine some regulations and interpretations.
The story of the regulations is well known. After Senator John Tower unsuccessfully proposed an amendment to Title IX to exempt college basketball and football from its scope, Congress passed a statute requiring the Department of Health, Education, and Welfare to propose regulations for athletics. The regulations were promulgated in 1975. They have remained unchanged since then, and the most important ones currently appear at 34 C.F.R. § 106.41.
Did these regulations require separate sports teams? Not at first glance. Section 106.41(a) states that a recipient of federal funds shall not provide athletics separately on the basis of sex. Section 106.41(b) then immediately steps this assertion back and says recipients may provide separate sports teams if either (a) competitive skill is a criterion for selection or (b) the sport is a contact sport. (Query: Can a school receiving federal funds maintain two separate intramural tennis ladders, one for each sex?)
It gets complicated. There is a rule (athletics shall not be provided separately), an exception (separate teams are permissible under two circumstances), an exception to the exception (where there is only one team that purports to include only one sex, and the excluded sex has previously had limited opportunities, the team must be open), and then an exception to the exception to the exception (but not if the sport is a “contact sport”). Got that?
Section 106.41(c) is labelled “equal opportunity.” It requires “equal athletic opportunity for members of both sexes” and provides a list of ten factors that the government will assess to determine if “equal opportunities are available.” Does it apply only if a school sponsors separate sex-segregated teams? Not very clear, although some of the factors seem difficult to apply to open teams. Subsection c then has a paragraph following the ten factors that states that (1) unequal aggrega
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