Honorable George V. Sitler
AGO 031517
No. 031517
West Virginia Attorney General Opinions
State of West Virginia Office of the Attorney General
March 15, 2017
Patrick Morrisey Attorney General
Elbert
Lin Solicitor General
Honorable
George V. Sitler
Prosecuting
Attorney of Mercer County
Mercer
County Courthouse Annex
120
Scott Street, Suite 200
Princeton,
West Virginia 24740
Dear
Prosecutor Sitler:
You
have asked for an Opinion of the Attorney General regarding
sex-segregated athletic programs. This Opinion is being
issued pursuant to West Virginia Code § 5-3-2, which
provides that the Attorney General "may consult with and
advise the several prosecuting attorneys in matters relating
to the official duties of their office." To the extent
this Opinion relies on facts, it is based solely upon the
factual assertions set forth in your correspondence with the
Office of the Attorney General.
According
to your letter, a question has arisen concerning student
participation in the softball team at Pikeview High School.
You explain that the Mercer County Schools sponsor several
sex-segregated sports programs. Football and baseball have
"[traditionally" been "male sports,"
whereas "[s]oft ball has always been treated as a
females-only sport." The letter states that "[a]
male student, who exhibits some nontraditional
gender-identity traits (makeup, skirts, etc.)[,] has signed
up and announced his intention to try out for" the
softball team.
Your
letter raises the following legal question:
May a school prohibit a male student with nontraditional
gender-identity traits from participating in a traditional
girls-only sports program and still comply with Title
IX?
Title
IX of the Education Amendments of 1972 "marked a
momentous shift for women's equality in classrooms, on
playing fields, and in communities throughout our
nation."
1 The federal law provides that "[n]o
person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or
activity receiving Federal financial assistance." 20
U.S.C. § 1681(a). And in a 1975 regulation implementing
Title IX, the federal government interpreted the law to
prohibit discrimination "on the basis of sex" in
athletic programs. 34 C.F.R. § 106.41(b).
[2]
Under
Title IX regulations, a federally funded school may provide
"separate teams for members of each sex," provided
that certain conditions are satisfied. Id. The
federal regulation applying Title IX to athletic programs
specifically permits "separate teams for members of each
sex where selection for such teams is based upon competitive
skill or the activity involved is a contact sport."
Id. There is an exception for the circumstance
"where a [funding] recipient operates or sponsors a team
in a particular sport for members of one sex but operates or
sponsors no such team for members of the other sex, and
athletic opportunities for members of that sex have
previously been limited." Id. In that case,
"members of the excluded sex must be allowed to try-out
for the team offered unless the sport involved is a contact
sport." Id. Contact sports are defined to
include "boxing, wrestling, rugby, ice hockey, football,
basketball and other sports the purpose or major activity of
which involves bodily contact." Id. More
generally, a funding recipient must provide "equal
athletic opportunity for members of both sexes"—a
mandate evaluated by many factors, such as the provision of
equipment and supplies, the scheduling of games and practice
time, and the assignment and compensation of coaches.
Id. § 106.41(b).
3
Applying
these principles, we believe that under appropriate
circumstances, a school could restrict participation in
Softball to females only without running afoul of Title IX.
As stated in the U.S. Department of Education's 1979
Policy Interpretation, "where an institution sponsors a
team in a particular sport for members of one sex, it may be
required either to permit the excluded sex to try out for the
team or to sponsor a separate team for the previously
excluded sex." 44 Fed.Reg. at 71,418. The answer to that
question turns on facts beyond those presented in your
letter. For example, whether softball is a contact sport as
defined by...
