Title IX and Athletics

Higher education institutions that receive federal funding are prohibited from discriminating based on sex in their athletic programs.   

Gender Equity

Are you thinking about discontinuing a sport? Or adding a sport? Or are you just curious whether your institution provides equitable opportunities to all your athletes? This section is for you!

Title IX Regulations and Policy Clarifications

Athletic programs – club, intramural, and varsity intercollegiate – are required to provide equal opportunity to male and female athletes. The Title IX of the Education Amendments of 1972, 34 C.F.R. § 106.41, includes information on the factors that the U.S. Department of Education considers when determining whether athletics programs are complying with Title IX in terms of gender equity.  

Several years later, the Department of Education released an interpretation of Title IX and Intercollegiate Athletics and provided that there are three separate areas evaluated for compliance: (1) participation opportunities, (2) athletic scholarships, and (3) benefit and treatment areas. Since issuing this policy interpretation on December 11, 1979, the U.S. Department of Education and Office of Civil Rights (OCR) has issued several clarifications that should be considered in conjunction with this document, listed below by compliance area. [1]

The most recent OCR guidance was a resource document titled Title IX and Athletic Opportunities in Colleges and Universities. Published in February 2023, it helps college and university communities evaluate whether a school complies with Title IX and provides equal athletic opportunities.  

1. Participation Opportunities 

Title IX requires colleges and universities to “accommodate the interests and abilities” of students. In other words, institutions must provide equal access to athletic programs (participation opportunities) for female and male students. Compliance in this area requires an institution to meet one of the three-part (or three-prong) tests. OCR has provided the following clarification on this requirement: 

[1] Note, this policy interpretation is generally applied to high school athletics as well. 

2. Athletic Scholarships

Colleges and universities are required to provide athletic financial aid proportionate to athletic participation. OCR has provided the following guidance as it relates explicitly to athletic scholarships:  

3. Benefits and Treatment Areas 

Often referred to as the "laundry list," institutions are required to provide equitable benefits and treatments to their male and female student-athletes in the following areas: 

1. Equipment and supplies; 

2. Scheduling of games and practice times; 

3. Travel and per diem expenses; 

4. Coaches; 

5. Academic tutors; 

6. Locker rooms, practice, and competitive facilities; 

7. Medical and training services and facilities; 

8. Housing and dining services and facilities;  

9. Publicity;  

10. Support services; and 

11. Recruiting. 

Note that OCR provides different factors to consider within each benefit area when assessing compliance. For example, when OCR assesses equipment and supplies for equivalence between men and women, it will look at the quality, amount, suitability, maintenance and replacement, and availability of equipment and supplies. All the factors can be found in the 1979 Policy Interpretation on Title IX and Intercollegiate Athletics.


OCR Resolution Agreements Regarding Athletics and Title IX

This search engine allows for reviewing resolution documents prepared by the U.S. Department of Education’s Office for Civil Rights. The database can be sorted by K-12 or collegiate agreements and by year. This data is particularly useful when analyzing benefit and treatment areas and how OCR applies the factors to specific facts.  


Key Cases

Most Title IX athletic lawsuits are brought by student-athletes whose team was discontinued, arguing that the college is not providing equitable athletic participation opportunities under one of the three-part tests. These cases can assist in evaluating how a court may interpret OCR’s guidance and an institution’s legal duties under Title IX. Below are a few key cases on the subject: 

  • Below v. Michigan State Univ., 24 F.4th 1051 (6th Cir. 2022) (when determining prong one compliance (substantial proportionality), must compare the “participation gap” to the size of the “viable team” – not the size of an average team) 
  • Biediger v. Quinnipiac Univ., 691 F.3d 85, (2d Cir. 2012) (successful challenge to reinstate women’s volleyball because cheerleading was not a sport for Title IX purposes) 
  • Cohen v. Brown University, 991 F.2d 888, (1st Cir. 1993) (successful challenge to reinstate two women’s teams because the school did not meet the three-prong test) 
  • Roberts v. Colorado State Bd. of Agriculture, 998 F.2d 824, (10th Cir. 1993) (successful challenge to reinstate intercollegiate softball because the school did not meet the three-prong test)


Other Helpful Resources

The Equity in Athletics Data Analysis (EADA) website publishes athletic information about colleges and universities that receive federal funding. Information on this website can assist in evaluating a school’s Title IX compliance with participation opportunities and athletic scholarships. However, note that the EADA counting is separate and different from the Title IX counting. While EADA data is helpful, it does not capture the full picture of Title IX compliance.  


NCAA Resources

Within recent years, the NCAA has implemented compliance requirements for membership as it relates to Title IX:

  • NCAA Sexual Violence Policy
    • The new items of the updated NCAA Sexual Violence Policy were required to be attested to by November 3, 2023. This policy requires athletic departments to provide specific training regarding sexual violence prevention, intervention, and response. It requires student-athletes to complete an annual disclosure form regarding sexual, interpersonal, and other acts of violence. The policy also requires institutions to gather information on investigations, disciplinary actions, and criminal proceedings involving prospective and transfer students. 
  • Diversity, Equity, and Inclusion Review Framework
    • Starting in 2023, Division I institutions are required to conduct a Diversity, Equity, and Inclusion (DEI) review every four years. NCAA Bylaws 20.2.4.3. The NCAA clarifies that this review should include a gender equity/Title IX review.  


Transgender Participation in Athletics

Transgender students participating on sports teams consistent with their gender identity has become an increasingly forefront topic on higher education campuses. Below are resources to assist with the subject:

  • April 13, 2023, Proposed Title IX Athletics Regulations
    • These proposed regulations, released for future publication in the Federal Register on April 6, 2023, would propose to amend the Title IX athletic regulations regarding sex-related eligibility criteria for male and female athletic teams. The fact sheet can be found here.
  • State Laws
    • As of April 2024, twenty-four states have passed laws addressing transgender participation in sport, including Ohio. These states include Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
  • NCAA Resources
    • In January 2022, the NCAA updated its policy on participation by transgender students by their gender identity. The new policy is a sport-by-sport approach that aligns with the United States Olympic and Paralympic Committee and International Olympic Committee. The policy, effective immediately, has three phases of implementation.
  • NAIA Policy
    • On April 8, 2024, the NAIA released a new policy addressing transgender participation in sport. The policy limits only “NAIA student-athletes whose biological sex* is female may participate in NAIA-sponsored female sports” and defines biological sex. The policy allows females undergoing masculinizing hormone therapy to participate in certain female designated sport activities.

While the administration considers formal regulations, the judiciary is also weighing in. There is ongoing litigation in the U.S. Court of Appeals for the Second Circuit and the U.S. Court of Appeals for the Fourth Circuit regarding transgender athletes' participation in sports teams.

Further, the U.S. Court of Appeals for the Ninth Circuit in Hecox v. Little recently upheld an injunction against Idaho's Fairness in Women's Sports Act, which bans women and girls who are transgender from trying out for or participating in public school female sports teams, because it discriminates based on both sex and transgender status.

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