We are excited to announce distinguished Title IX attorney Felice Duffy has joined the national Title IX powerhouse law firm of Nesenoff & Miltenberg LLP.

CALL US 24/7 AT 212-736-4500

Title IX & Student Conduct Code Blog

Nesenoff & Miltenberg, LLP

Recent OCR Guidance Regarding Athletics Does Not Address Sexual Orientation or Gender Identity

For those who are anxiously waiting to find out the current legal standing of LGBTQIA+ students who feel thwarted in their efforts to participate in college athletics, the new Title IX athletics guidance issued recently by the U.S. Department of Education’s Office for Civil Rights (OCR) is a disappointment. While the guidance can prompt educational institutions to update some programs for compliance, many questions remain to be answered.

The information emphasized in the guidance document could, however, provide clues regarding future standards and requirements for college athletics.

Three Main Requirements

In the new resource guide, OCR reminds the public and schools in particular that an institution’s compliance with Title IX requirements for athletic programs will be measured by observations in three key areas. The school’s athletic programs will be examined to determine whether they are providing equal opportunities based on the following:

  1. A comparison of the treatment of men’s and women’s teams, including benefits and opportunities
  2. An examination of the athletic scholarships and financial assistance provided by the school
  3. The steps the school is taking to meet students’ athletic interests and serve their abilities

The guidance document provides a series of questions schools can consider to determine whether they meet the requirements.

Benefits and Opportunities for Women’s Teams vs. Men’s Teams

Schools are expected to offer “equivalent benefits, opportunities, and treatment to its men’s and women’s teams overall.” Since this requirement is phrased in terms of obligations to the team as a whole rather than individual athletes, any transgender athletes hoping for protection of their right to participate receive no support from the guidance document.

Instead, the document encourages schools to consider the following factors:

  • Equipment and supplies (For instance, are the uniforms and equipment of equivalent quality and equally available to both teams?)
  • Practice time and game schedules (Do the teams play the same number of games? Are practice teams equally convenient? Are both teams given equal opportunities to compete before a substantial audience?)
  • Travel amenities (Do both teams travel by the same means of transportation? Do they have equivalent accommodations and meal allowances?)
  • Coaching (Do the coaches for each team have equivalent qualifications? Are coaches paid equally? Are coaches able to spend the same amount of time coaching compared with teaching or other duties?)
  • Academic tutors (Are tutors equivalently qualified and made available for equal amounts of time? Are the rules to qualify for tutoring the same?)
  • Facilities for competition and practice (Are locker rooms equivalent in size and quality? Do playing fields have equal restrooms and seating for spectators? Are the scoreboards and lighting equivalent?)
  • Medical services (Are exams conducted by professionals with equivalent qualifications? Do teams travel with equivalent medical personnel?)
  • Training facilities (Are conditioning facilities equivalent? Do certain teams have priority using facilities or personnel?)
  • Housing and Dining (Do teams have equivalent housing and furniture? Are the meal plans, food quality, and location of facilities similar?)
  • Publicity (Does the school provide equal coverage of men’s and women’s events? Are pep bands and cheerleaders provided equivalently for each?)
  • Recruitment (Do coaches have equal amounts of time for recruitment? Is recruitment funding equivalent?)

OCR points out that private contributions must be taken into account when assessing compliance with equality requirements. For instance, if a booster club or other organization supports a particular program provided to one sex, the school must ensure that equivalent benefits are provided to the team of the other sex.

Athletic Scholarships and Financial Assistance

When determining whether schools provide equal opportunities regarding financial components of participation, OCR looks at whether the total amount of athletic financial assistance offered to men and women is proportionate to the participation rate. Neither the dollar value nor the number of scholarships made available need to be equal so long as the value is proportionate.

By way of example, OCR explains that “if 45% of the participants in the school’s athletic program are women, then women should receive about 45% of the available athletic financial assistance.” One aspect the agency did not address is how a school should classify whether a participating athlete is a man or a woman. Schools could have the incentive to classify athletes who identify as female but were described male at birth as male athletes in order to justify providing more scholarship funds to male athletic programs such as football.

Meeting Students’ Athletic Interests and Abilities

Schools are required to meet the interests and abilities of “men and women” who make up the student body. Again, without a definition of men or women, the classification of transgender or certain other LGBTQIA+ students could be shifted to provide a statistical advantage in some cases.

OCR provides three tests a school can use to determine whether it is meeting the interests and abilities of athletes who attend. The Substantial Proportionality option compares the percentage of men and women on athletic teams with the percentage of men and women enrolled as full-time undergraduate students. The History and Continuing Practice Option allows a school to satisfy the requirement by showing that they have been adding athletic programs for an underrepresented sex and that they are continuing to add such programs. If the school has been trying to achieve equality just by cutting programs for one sex without adding programs for the other or by adding the same amount of athletic programs for male and female athletes, those actions won’t meet the test.

The final option a school can use to demonstrate that they are meeting this requirement is to show that the existing disproportionate arrangement is meeting students’ needs and interests. For instance, the school might show that there is not enough demand and talent to support a team. The input of students and parents can be crucial in supporting or refuting a school’s assertions under this option.

Legal Guidance for Transgender and LGBTQIA+ Students Who Believe Their Rights Have Been Violated

While the recent OCR document is more of a reminder than a clarification of policies, students who feel that their schools have illegally discriminated against them by failing to provide equal opportunities based on their sexual orientation or gender identity may still have legal options for relief. In the current quickly changing landscape, students should consult an experienced Title IX attorney for assistance.

The team at Nesenoff & Miltenberg, LLP is dedicated to protecting students’ rights. We can help pursue options either through the school, through an administrative agency, or in court. We invite you to schedule a strategy session to learn more about the ways we can assert and protect your rights or the rights of a loved one.