Braving the New World of Inclusive Athletics 

Title IX, FPM, and other Compliance Issues

Some Definitions

Gender Identity: refers to a person’s innate sense of their own gender (e.g., cisgender, transgender, nonbinary)�

Sex: used in the NPRM (often as “sex-related”) to mean the sex assigned a person at birth based on anatomy�

Sexual Orientation: refers to whom a person is emotionally, physically, and/or romantically attracted (e.g., straight, gay, lesbian, bisexual, queer, etc.)�

Transgender: refers to a person whose gender differs from the sex which was assigned to them at birth�

Nonbinary: refers to a person whose gender identity is something other than the male or female gender identity, or does not fall within one identity or the other, or is a blend of the two

Transgender athletes

Providing context

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• Nationwide, there are about 15.4 million high school students
• 2% of US high school students are estimated to be transgender (about 3 million students)
• Of those, about 26% are estimated to participate in athletics (about 78,000 students nationwide)

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Federal Law: Bostock and E.O.13988

In 2020, the Supreme Court held that discrimination on the basis of transgender (and LGBTQ) status constitutes sex discrimination under Title VII of the 1964 Civil Rights Act.

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In 2021, the Biden Administration published Executive Order 13988, which made a policy statement that effectively extended the Bostock ruling to Title IX, including gender identity and sexual orientation.

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Federal Law: Department of Education

In 2021, the Department of Education explained that it would enforce Title IX’s ban on discrimination based on sex to include:

• Sexual orientation
• Gender identity

But in 2022, DoE was enjoined from enforcing this Notice of Interpretation by court order in the following states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, Tennessee, South Carolina, South Dakota, and West Virginia

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California’s AB 1266 (2013)

California’s School Success and Opportunity Act (Cal. Ed. Code Section 221.5(f))

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A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.

California Interscholastic Federation

CIF Bylaws 300.D on Gender Identity Participation

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Participation in interscholastic athletics is a valuable part of the educational experience for all students. All students should have the opportunity to participate in CIF activities in a manner that is consistent with their gender identity, irrespective of the gender listed on a student’s records.

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Eligibility: Getting on the Team

Notice of Proposed Rulemaking �Proposed Section 106.41 (b)(2)

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Sex/gender-identity rules adopted related to eligibility must:

• Substantially related to the achievement of an important educational objective AND
• Minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be otherwise limited or denied

Applies to each sport, level of competition, grade / education level

No “one size fits all” policy is to be adopted by a school district

Eligibility: Education Level

Elementary School

• “Few, if any, sex-related eligibility criteria applicable to students in elementary”

Middle School

• Important opportunity to introduce students to new activities
• Develop physical fitness
• Leadership and teamwork skills

High School

• DoE “expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases,” such as “fairness in competition,” so long as all of the other proposed rule’s requirements are also met

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Eligibility: Competition Level

Competitive athletics

• Varsity teams – advanced skill development, selective, high levels of competition
• Junior varsity – skill building, somewhat selective, lower levels of competition
• “No cut” teams – broad participation and basic skills development

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Club, intramural, recreational sports

• Participation, personal improvement, physical well-being
• Winning is not the primary goal

After Making the Team

Providing context

• Playing time / Practice time: No guarantee, but…
• Treatment by coach, teammates
• Treatment by opposing team, coach, spectators

Political Reaction

• On April 20, 2023, the House of Representatives passed the “Protection of Women and Girls in Sports Act of 2023.”
• Federal funding could be lost if transgender athletes allowed to play on girls’/women’s teams
• Transgender athletes would be allowed to participate and compete ”so long as no female is deprived of a roster spot on a team or sport, opportunity to participate in a practice or competition, scholarship, admission to an educational institution, or any other benefit that accompanies participating in the athletic program or activity”

School Districts: What to Do?

• Educate Districts about New TIX Athletic Rules (Superintendent, District Office, School Site Administrators, Athletic Directors, Coaches, Parents, and Students)
• Best practice: everyone plays according to their gender identity, with eligibility rules that are NOT based on sex/gender

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• Be aware that this issue will likely be litigated all the way to the Supreme Court via parent and community complaints
• West Virginia: West Virginia et al. v. B.P.J. (Alito / Thomas dissent in denial of application to vacate injunction indicated the S.Ct. will likely “be required to address [the issue] in the near future”)
• Utah: Roe et al. v. Utah High School Activities Assoc. (Legal win of preliminary injunction of HB11 (restricting trans girls’ participation in girls’ sports) met by creation of an “expert panel” to conduct a case-by-case eligibility determination of transgender girls, based on height and weight)

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West Virginia et al. v. B.P.J.

• In 2021, HB 3293 was passed in WV, banning trans girls from participating in girls’ sports teams.

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• Becky Pepper-Jackson, 12 years old, trans girl, sought to participate in girls’ cross country and track-and-field.

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• Complaint was filed in Southern District of WV, alleging that HB 3293 violated Title IX and the Equal Protection clause.

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• Southern District of WV held that HB 3293 was constitutional and complied with Title IX, dissolved the preliminary injunction, and entered summary judgment for the State.

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West Virginia et al. v. B.P.J.

• B.P.J. filed for a stay pending appeal and was granted an injunction pending appeal by a divided Fourth Circuit (2-1). �
• WV asked the Supreme Court to vacate the Fourth Circuit’s injunction. It did not. Alito and Thomas dissented from the S.Ct.’s very short unsigned order, which simply denied the application to vacate. �
• The Alito / Thomas dissent to the denial criticized the S.Ct., stating that it, like the Fourth Circuit, had failed to provide its reasoning and warned that the S.Ct. will likely “be required to address [the issue] in the near future”

Roe et al. v. Utah High School Activities Assoc.

• In 2022, parents of three transgender girls filed a lawsuit seeking a preliminary injunction against Utah’s HB11, restricting trans girls’ participation in girls’ sports teams�
• State court granted the preliminary injunction August 19, 2022�
• Republican lawmakers responded by creating a “state commission of political appointees who will determine on a case-by-case basis” if trans girls are eligible to participate, based on questions and assessments that include height and weight and other considerations to determine if they have an “unfair advantage.”�

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Roe et al. v. Utah High School Activities Assoc.

• The Utah legislature has adopted the School Activity Eligibility Commission and members will include:
• a medical data statistician
• a physician with experience about gender identity healthcare
• a sports physiologist
• mental health professional
• collegiate athletic trainer
• representative of an athletic association and
• a rotating member who is a coach or official in the sport relevant to each case

Title IX: A Case Study to Learn From

Legal Update: NCAA

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Along with each college/university’s request for student information, the college/university is expected to send a FERPA release signed by the student-athlete.

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ALWAYS send the request form to the Compliance Office for review, approval of the form, and assistance in completing the form.

LEGAL Update: SDSU

The lawsuit contends that the plaintiffs represent a broader class-action group – all female athletes at SDSU – that has been deprived of equal scholarship money and benefits.

For example, plaintiffs contend that in 2018, there were nearly 100 more female athletes than male athletes – 316 to 221 – and yet the male athletes received $4.6 million in total athletic financial aid while female athletes received $4.58 million

• Legal Update: Office of Civil Rights

Cases out of California:

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Chino Valley Unified School District (CA):

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In April 2022, OCR found that the district violated Title IX by failing to respond promptly and effectively to notice of sexual harassment of students on a high school athletic team by some of their teammates.

• Legal Update: Office of Civil Rights

Cases out of California:

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• San Juan Bautista School of Medicine (PR): In May 2022, OCR resolved complaints of sex and race discrimination in the school’s handling of Title IX investigations.

• Legal Update: Office of Civil Rights

Cases out of California:

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• Tamalpais Union High School District (CA):
• In June 2022, OCR determined that this district violated Title IX by failing to respond promptly and effectively to repeated notice of ongoing sex-based harassment of a transgender student by another student, predicated on sex stereotyping.

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�Federal Program Monitoring (FPM)�

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FPM�

• The purpose of FPM is for the California Department of Education (“CDE”) to verify that programs funded by federal sources meet specific legal requirements.
• Each “program” has its own “program instrument.”

FPM�

• FPM review can be Onsite, Online, and/or Telemonitoring.
• Onsite can include in-person classroom observation and interviews of staff and parents/guardians.

FPM

For the 2022-23 cycle, Sweetwater Union High School District (“SUHSD”) was selected for the following FPM Program Instruments:

• Adjusted Cohort Graduation Rate (“ACGR”)
• Federal Stimulus Monitoring (“CA”)
• Compensatory Education (“CE”)
• Career Technical Education (“CTE”)
• Education Equity (“EE”) 🡪 includes Title IX requirements
• English Learner (“EL”)
• Supporting Effective Instruction (“SEI”)
• School Support & Improvement (“SSI”)

FPM

• SUHSD was monitored onsite, online, & via telemonitoring.
• SUHSD submitted 2,457 documentary pieces of “evidence” for the 2022-2023 FPM cycle of which 181 documents were for EE and/or Title IX.
• SUHSD received 8 findings. All 8 findings were under EE and were cleared within the 60-day “addendum” window following the onsite visit.

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FPM: EE

Within EE Program Instrument, there are 11 sections, 5 of which involve Title IX evidence:

• EE01: Prohibition of Discrimination, Harassment, Intimidation, & Bullying
• EE 02: Prohibition of Sexual Harassment
• EE 03: Suicide Prevention & Pupil Safety
• EE 04: Title IX Coordinator(s) & Notification
• EE 05: Section 504 Complaint Procedures
• EE 06: Marital, Prenatal, & Pregnancy Status
• EE 07: Immigration & Citizenship
• EE 08: Curriculum Instruction & Counseling Materials
• EE 09: Pupil Activities, Clubs & Programs
• EE 10: Athletics
• EE 11: California Racial Mascots Act

EE Program Instrument

The EE Program Instrument was 48 pages in 2022-23 that identify the pieces of “evidence” that the LEA is required to upload to the CDE online portal called the CDE Monitoring Toor (“CMT”).�PRO TIP 1: Create a stand alone document with all your PDF evidence, with EE number, starff, associated and title. Number each piece of evidence identified in the Program Instrument (on the instrument itself) for ease of reference by staff gathering FPM documents. SUHSD identified 181 documents required for EE. Numbering individually will help identify documents that overlap.�https://docs.google.com/document/d/13IfWQh0MOmtTzjcsTjido0nWBPeIHEJu/edit?usp=sharing&ouid=104733944176284778832&rtpof=true&sd=true

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Make sure the compliance email address in your policies & regulations MATCHES the email that is posted on your website

Pro Tip: Ensure that Compliance related resources are on the front page of your website and easily identifiable with one click

District Website�

Pro Tip: Compile all Title IX resources in one location so staff have quick references.

Pro Tip:

Title IX Coordinator

“Job Description”

FPM Takeaways:

1. Attend CDE FPM trainings, which may be scheduled in August and mid-year.
2. Review CDE Toolbox Resources, including FAQ documents for examples.
3. Meet with your County Office of Education (“COE”) FPM coordinator, e.g. State & Federal Programs department, for advice & tips.
4. Ask to meet your assigned FPM Reviewers (CDE Staff) as early as possible before the site visit so that you can start dialogue, ask questions, etc.
5. If you can, schedule Board meetings around key times of FPM Review Period so that you can update policies as necessary.
6. Look up policies, handbooks, etc. of a district that recently completed FPM.
7. Ensure that Compliance related resources are on front page of your website and easily identifiable with one click.
8. Compile all Title IX resources in one location.

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For further information:

Jennifer Carbuccia

General Counsel – Sweetwater Union High School District

619-585-6082 jennifer.carbuccia@sweetwaterschools.org

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Lise K. Strom

Equity Compliance Officer – Santa Clara Unified School District

408-423-3509 LStrom@scusd.net

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