The confusion surrounding Title IX is exacerbated by the use of phrases that have disparate meanings inside and outside Title IX's application to sports. We saw a bit of this yesterday, in the regulations and interpretations. The regulations require "equal athletic opportunity." Normally, we understand the phrase "equal opportunity" to be synonymous with nondiscrimination, a rule precluding the consideration of a prohibited criteria. Think "Equal Employment Opportunity," for example. But in Title IX and sports, "equal opportunity" has come to mean something quite different.
The contrast between the two kinds of equal opportunity can be seen in cases involving women seeking to participate on a "male" football or wrestling team, where the school has no female teams for those sports. Because Title IX regulations specifically permit schools receiving federal funds to have teams for only one sex in "contact sports," the plaintiffs in these cases generally sue under the Equal Protection Clause if the school is state-operated. And they usually win. Further, the courts usually emphasize that the plaintiff is not seeking legal entitlement to a position on the team, but only an "opportunity" to try out. In one case, a district court in Kansas, after rejecting the plaintiff's Title IX claim, and then ultimately granting a preliminary injunction on her Equal Protection claim, noted that Title IX defined "equal opportunity" in a way substantively different from the definition of "equal protection." It was right. Just read Judge Lagoa's concurrence on Title IX and sports in the Eleventh Circuit's recent en banc opinion in Adams v. School Bd. of St. John's County, where she repeatedly asserts that allowing trans females to compete on female sports teams would deprive females of "equal opportunity" under Title IX.
Indeed, nominally-male football and wrestling teams at state schools are, in fact, open teams because females have a constitutional right to try out for them (if there is no female team in the sport). The same holds true for schools (private or public) receiving federal funds if they have male-only golf or tennis teams. Is every slot on those teams an "opportunity" for women? Not In the language of Title IX regulations as applied to sports; a female has an "opportunity" only if she makes the team.
