Athletics is poised to be a major topic in Title IX this year. The participation of transgender athletes in school sports continues to dominate headlines, as we reported earlier on this blog, while gender inequity remains a key concern in school sports programs 50 years after the passage of Title IX, despite major gains for female athletes and women’s sports. In this post, we provide updates on recent OCR resources and a complaint resolution that address Title IX issues related to school athletic programs. 

OCR publishes new resources on Title IX and athletics—but no proposed rule, yet 

When the Department of Education released its new proposed Title IX rule last June, it announced that a separate notice of proposed rulemaking on sex discrimination in athletics would be released at a later date to address transgender athlete participation and “the question of what criteria, if any, recipients should be permitted to use to establish students’ eligibility to participate on a particular male or female athletics team.” 

While the release date of the highly anticipated proposed rule is still up in the air, OCR published three new resources on February 17, 2023, that address equal opportunity in athletic programs—an overview resource and two specialized resources covering information specific to K-12 and higher education institutions. 

The overview resource, “Supporting Equal Opportunity in School Athletic Programs: A Resource for Students and Families,” reiterates the responsibility of schools and colleges under Title IX to accommodate the athletic interests and abilities of all their students; provide equal opportunity in benefits, opportunities, and treatment for their sports teams; and not discriminate on the basis of sex in providing athletic scholarships and financial aid to students. The resource lists common scenarios that may raise Title IX concerns, including situations where there are disparities in the provision of gear, apparel, facilities, and other resources to men’s versus women’s teams. The resource also advises potential complainants to notify their school’s athletic director or Title IX Coordinator or file a complaint with OCR if they believe a school is violating its responsibility to provide equal athletic opportunities under Title IX. 

The K-12 and higher education resources provide more detailed information for students, coaches, athletic directors, and school communities specific to these educational contexts. The K-12 resource provides guidance for evaluating the respective benefits, opportunities, and treatment for boys’ and girls’ teams, including the equitable provision of equipment and supplies, opportunities for scheduling games and practice time, travel and daily allowance, coaching, locker rooms and other facilities, medical and training facilities and services, and publicity for games. In addition to the factors above, the higher education resource addresses the assessment of academic tutoring, housing and dining services, recruitment, and athletic scholarships and financial aid for men and women athletes.  

While the latest OCR resources are not necessarily groundbreaking in content, they are a valuable reminder for schools to evaluate whether they are providing student athletes with an equal opportunity to participate in athletic programs under the three-part test for Title IX (substantial proportionality; history and continuing practice; interests and abilities of students). These resources are especially timely given the increased public scrutiny over the continuing inequities faced by female athletes in schools and colleges over 50 years since the passage of Title IX. 

School district agrees to voluntary resolution of Title IX athletics discrimination complaint 

In one such case, OCR received a complaint that a boys’ baseball program at a district high school in Oregon had superior locker rooms, practice, and competitive facilities compared to the girls’ softball program, as well as superior and newer uniforms, equipment, and supplies. In addition, the girls’ softball teams had inferior opportunities to receive coaching than the boys’ baseball teams because the girls’ head coach did not receive a prep period at the end of the school day to prepare the fields before practices and games, rendering their coach unavailable to coach the girls at those times, whereas the boys’ head coach did receive such a prep period and was available to coach the boys during those times.  

The school district voluntarily agreed to resolve the complaint before the OCR investigation concluded. In November 2022, OCR issued a resolution agreement in which the school district agreed to conduct an assessment of the facilities used by the boys’ and girls’ interscholastic athletic teams to ensure that they were receiving equivalent benefits, opportunities, and treatment with respect to locker rooms, practice, and competitive facilities; equipment and supplies; and opportunities to receive coaching. The district also committed to creating and implementing a corrective action plan to address inequities following the completion of their assessment. 

Similar complaints of school districts’ inequitable treatment of female student athletes and sports teams have been surfacing in federal courts nationwide, including a potentially landmark class action Title IX suit against Hawaii’s Department of Education and state interscholastic association alleging widespread and systemic sex discrimination against female athletes.  

OCR’s resources on Title IX and athletics thus serve as a good starting point for schools to use to evaluate their current athletic programs and ensure that they are providing their students with equal opportunities to participate in school sports programs, regardless of gender.  

We will be monitoring the upcoming release of the Title IX proposed rule on transgender athletes and other issues in school athletics and keep you updated. Please reach out to your Franczek attorney or any member of Franczek’s Title IX team if you have any questions. 

*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.