Can a West Virginia public school keep a 'girls-only' softball team girls-only and exclude a male student who identifies with non-traditional gender expression, without violating Title IX?

Plain-English summary

In early 2017, the Mercer County prosecutor asked the West Virginia AG whether Pikeview High School could keep its softball team girls-only when a male student "who exhibits some nontraditional gender-identity traits (makeup, skirts, etc.)" announced an intention to try out. The AG framed the question narrowly: would excluding that student violate Title IX of the Education Amendments of 1972?

The AG opinion answered no, in appropriate circumstances, on two independent grounds.

Ground one: Title IX expressly allows separate-sex athletic teams under specific conditions. 34 C.F.R. § 106.41(b) 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." The carve-out for the excluded sex requires a try-out only when (a) the school sponsors a team in that sport for one sex but not the other, and (b) athletic opportunities for the excluded sex have "previously been limited" overall. Three fact-bound questions therefore drive the answer for any specific school: is the sport a contact sport (probably not for softball, per Horner v. Kentucky High School); have athletic opportunities for the excluded sex been previously limited (a school-wide question, not sport-specific, per Williams v. Bethlehem and Mercer v. Duke); and does the school overall provide "equal athletic opportunity for members of both sexes."

Ground two: the AG's reading of "sex" in Title IX. The AG concluded that "sex" in Title IX, as understood when Title IX was enacted in 1972, refers to biological/physical sex differences and reproductive function, not professed gender identity. The opinion cites contemporaneous dictionaries and the work of UCLA psychoanalyst Robert Stoller, who originated the term "gender identity" in 1963 and explicitly distinguished it from biological sex. The AG further argued that under Title IX's status as a Spending Clause statute, conditions imposed on grant recipients must be "unequivocally clear" (Pennhurst), so any ambiguity should be resolved against reading new categories into "sex." Congress separately chose to add "gender identity" to the federal hate crimes law (18 U.S.C. § 249) and the Violence Against Women Act, but never amended Title IX, which the AG reads as confirming that "sex" in Title IX does not encompass gender identity.

The federal-administrative posture in March 2017. The opinion was issued during an unsettled period. The Obama administration's May 2016 Dear Colleague Letter had directed schools to "treat a student's gender identity as the student's sex for purposes of Title IX." On February 22, 2017, the Trump administration formally withdrew that guidance. The U.S. Supreme Court had granted certiorari in G.G. v. Gloucester County School Board (the Fourth Circuit case requiring a Virginia school to provide bathroom access consistent with a student's gender identity), but on March 6, 2017, after the rescission, the Court vacated the Fourth Circuit's decision and remanded for further proceedings. So the AG was writing into a window where the Fourth Circuit's prior gender-identity-favorable ruling had been vacated, the Obama-era guidance was gone, and the Trump administration had said only that the federal government would "further and more completely consider the legal issues involved."

The AG's bottom line for school administrators in 2017. A school could prohibit a male student with non-traditional gender-identity traits from participating in a traditional girls-only sports program and still comply with Title IX, provided the school's overall athletic program met § 106.41's equal-opportunity requirements. The opinion was explicit that this conclusion does not bind any court or any future federal administration, and noted that private parties can sue under Title IX for damages (Cannon; Franklin v. Gwinnett). State athletic associations across the country took different approaches: Texas determined gender from birth certificates; California allowed participation consistent with gender identity; West Virginia had no statewide policy at the time.

The opinion is a snapshot of a contested area of law during a federal-policy reversal. Multiple developments since 2017, including new federal guidance, court rulings on transgender athletes, and state legislation in West Virginia and elsewhere, may have shifted the analysis significantly.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The legal landscape on Title IX, gender identity, and athletic eligibility has shifted substantially since this opinion was issued. West Virginia, the federal government, and federal courts have all generated additional law on this topic between 2017 and the date of this page. Anyone making policy or eligibility decisions should consult current statutes, regulations, federal guidance, and applicable court rulings.

Common questions

Q: At the time of this opinion, did Title IX allow schools to bar trans students from sex-segregated teams?
A: The 2017 AG opinion concluded that Title IX itself did not require schools to admit a student to a sex-segregated team based on professed gender identity, and that under appropriate facts a school could exclude such a student without violating Title IX. The opinion repeatedly cautioned that this view did not bind courts or future federal administrations.

Q: Was this opinion issued under Obama-era or Trump-era guidance?
A: It was issued in the gap. The Obama-era Dear Colleague Letter (May 2016) was rescinded on February 22, 2017. This opinion is dated March 15, 2017, so it post-dates the rescission. The Trump administration had not yet issued substitute guidance.

Q: What about the Fourth Circuit's G.G. v. Gloucester decision?
A: The Fourth Circuit had held in 2016 that schools must let transgender students use bathrooms matching their gender identity, deferring to the Obama-era guidance. The Supreme Court stayed and then granted cert. After the federal guidance rescission, the Supreme Court vacated the Fourth Circuit's decision in March 2017 and remanded for further proceedings. The AG opinion treats G.G. as no longer controlling.

Q: Is softball a "contact sport" under Title IX regulations?
A: 34 C.F.R. § 106.41(b) lists "boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact." Softball is not on the list. The Sixth Circuit assumed softball and baseball are non-contact in Horner v. Kentucky High School Athletic Ass'n. The opinion does not definitively decide the contact-sport question for softball.

Q: Could a private student or family sue a West Virginia school under Title IX?
A: Yes. Federal law provides both a federal enforcement mechanism (20 U.S.C. § 1682) and an implied private right of action recognized in Cannon v. University of Chicago, 441 U.S. 677 (1979). Damages are available in private actions per Franklin v. Gwinnett, 503 U.S. 60 (1992).

Q: Did West Virginia have a state policy on this in 2017?
A: No, per the opinion. West Virginia had no statewide policy on transgender participation in single-sex sports in 2017. State practice has changed since, and current state law and athletic-association rules govern current eligibility decisions.

Background and statutory framework

Title IX, 20 U.S.C. § 1681(a). "[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."

Title IX athletics regulation, 34 C.F.R. § 106.41(a), (b). § 106.41(a) prohibits sex discrimination in any "interscholastic, intercollegiate, club or intramural athletics offered by a recipient." § 106.41(b) permits separate teams "where selection for such teams is based upon competitive skill or the activity involved is a contact sport." Recipients must provide "equal athletic opportunity for members of both sexes."

1979 Policy Interpretation. 44 Fed. Reg. 71,413 (Dec. 11, 1979). DOE's interpretation of how Title IX's athletics provisions apply, focusing on equal-opportunity assessment via factors like equipment, scheduling, and coaching.

Spending Clause / Pennhurst clear-statement rule. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981). Conditions on federal funding must be unambiguously clear so states can knowingly accept the terms.

Original-public-meaning approach to "sex." Carcieri v. Salazar, 555 U.S. 379 (2009). Statutory terms are interpreted by their meaning when the statute was enacted. The AG used 1972-era dictionaries (American Heritage, Webster's Third, OED) for "sex," all of which defined the term in physiological terms.

Stoller's distinction. Robert J. Stoller, Sex and Gender (1968), originated the modern term "gender identity" and distinguished it from biological sex. The AG cites this for the proposition that the 1970s legal vocabulary kept "sex" and "gender identity" as separate concepts.

Other federal statutes addressing gender identity. 18 U.S.C. § 249 (federal hate crimes, lists "gender" and "gender identity"); 42 U.S.C. § 13925(b)(13)(A) (VAWA, prohibits discrimination on basis of "sex" and "gender identity"). Title IX has not been amended to add gender identity. The AG cites this asymmetry as evidence Congress understood the difference.

Bathroom-access litigation context. Texas v. United States, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016) (preliminary injunction against Obama-era guidance, multi-state plaintiff group including West Virginia). G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), vacated and remanded after federal guidance withdrawal.

Try-out exception cases. Williams v. School Dist. of Bethlehem, Pa., 998 F.2d 168 (3d Cir. 1993) (rejecting argument that boys' field hockey opportunities had been previously limited where district had girls-only field hockey). Mercer v. Duke University, 190 F.3d 643 (4th Cir. 1999) (Duke did not dispute that women's athletic opportunities had been previously limited; second condition met). Horner v. Kentucky High School Athletic Ass'n, 43 F.3d 265 (6th Cir. 1994) (assumed softball/baseball non-contact).

Private enforcement. Cannon v. University of Chicago, 441 U.S. 677 (1979) (implied private right of action). Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992) (damages available in Title IX private actions).

Citations and references

Statutes and regulations:
- W. Va. Code § 5-3-2 (AG advisory authority)
- 20 U.S.C. §§ 1681(a), 1682
- 34 C.F.R. § 106.41(a), (b)
- 44 Fed. Reg. 71,413 (1979 Policy Interpretation)
- 18 U.S.C. § 249
- 42 U.S.C. § 13925(b)(13)(A)

Cases:
- Carcieri v. Salazar, 555 U.S. 379 (2009)
- Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)
- Williams v. School Dist. of Bethlehem, Pa., 998 F.2d 168 (3d Cir. 1993)
- Mercer v. Duke University, 190 F.3d 643 (4th Cir. 1999)
- Horner v. Kentucky High School Athletic Ass'n, 43 F.3d 265 (6th Cir. 1994)
- Texas v. United States, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016)
- G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016)
- Cannon v. University of Chicago, 441 U.S. 677 (1979)
- Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992)

Source

• Landing page: https://ago.wv.gov/media/17801/download?inline
• Original PDF: https://ago.wv.gov/media/17801/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

March 15, 2017

(304) 558-2021
Fax (304) 558-0140

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 "[t]raditionally" been "male sports," whereas "[s]oftball 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." 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).

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).

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 34 C.F.R. § 106.41(b), i.e., a sport "the purpose or major activity of which involves bodily contact." If not, have "athletic opportunities for members of th[e] [excluded] sex . . . previously been limited"? This is a fact-intensive question that most courts appear to evaluate on a school-wide (as opposed to a sport-specific) basis. And finally, does the school satisfy its overarching requirement to provide "equal athletic opportunity for members of both sexes"?

We also believe that Title IX's use of the word "sex" permits a school to refuse to consider a student's professed gender identity when determining which students may join an otherwise permissible single-sex sports team. The word "sex," which is also the operative term in the relevant regulations, was understood in the mid-1970s to include physical differences between males and females. See Carcieri v. Salazar, 555 U.S. 379, 388 (2009) ("We begin with the ordinary meaning of the word 'now,' as understood when the IRA was enacted"). Dictionaries from that time consistently include definitions of the word "sex" that refer to physiological distinctions between males and females, particularly with respect to their reproductive functions. Moreover, there is no contemporaneous evidence of the word "sex" being understood to refer to an individual's professed gender identity in a way that disregards (or supersedes) an individual's biology and physiology. In fact, Robert Stoller, the UCLA psychoanalyst who first used the term "gender identity," wrote in 1968 that gender had "psychological or culture rather than biological connotations." Robert J. Stoller, Sex and Gender: On the Development of Masculinity and Femininity 9 (1968). To him, "sex was biological but gender was social." Haig, supra, at 93.

This understanding of the word "sex" in Title IX is bolstered by more recent acts (and omissions) by Congress. Congress has specifically chosen to extend protection for "gender identity" in the federal hate crimes law, see 18 U.S.C. § 249 (listing both "gender" and "gender identity"), and the Violence Against Women Act, see 42 U.S.C. § 13925(b)(13)(A) (prohibiting discrimination on the basis of both "sex" and "gender identity"). But it has never amended Title IX.

Any remaining doubt should be dispelled by the fact that Title IX is a Spending Clause statute and thus must be construed strictly. As the U.S. Supreme Court has explained, Congress has power under the Spending Clause to enact laws that place conditions on the distribution and use of federal funds. Such laws are "much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions." Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). But this puts an important limit on Congress's power. To ensure that a State "voluntarily and knowingly accepts the terms of the 'contract,'" the Supreme Court has required that grant conditions in Spending Clause statutes be unequivocally clear in the statutory language. Id. "[I]nsisting that Congress speak with a clear voice," the Supreme Court has explained, "enable[s] the States to exercise their choice knowingly, cognizant of the consequences of their participation." Id.

There is no plausible argument that Title IX clearly requires a school to consider a student's professed gender identity when determining which students may join a single-sex sports team. As discussed above, the evidence overwhelmingly shows that the word "sex" was understood in the mid-1970s to refer to physiological distinctions between males and females, particularly with respect to their reproductive functions. Even if it could be argued that some evidence supports understanding the word "sex" to refer to an individual's professed gender identity, that could not satisfy the Supreme Court's "clear-statement" requirement for conditions imposed in a Spending Clause statute like Title IX.

Against all this, we have not located any controlling federal court decision holding that a school subject to Title IX must allow a student's professed gender identity to determine whether the student may join a single-sex sports team. As you may know, there has recently been significant litigation across the country over whether Title IX requires a school to allow students access to bathrooms based on their gender identity. But these cases have not presented the question of gender identity and single-sex sports teams.

Moreover, even on the question of access to bathrooms and other intimate spaces, those cases do not provide controlling guidance. In a closely watched case in Texas, a federal district court concluded that a regulation permitting sex-segregated bathrooms is not ambiguous and rejected an attempt to read "gender identity" into the meaning of the word "sex." "It cannot be disputed," the court wrote, "that the plain meaning of the term sex as used in § 106.33 when it was enacted . . . following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth." Texas v. United States, F. Supp. 3d , 2016 WL 4426495, at *15 (N.D. Tex. Aug. 21, 2016).

In contrast, the U.S. Court of Appeals for the Fourth Circuit has concluded that a school must provide a student access to a bathroom based on the student's gender identity, but that decision has been stayed by the U.S. Supreme Court and its legal underpinnings have been overtaken by events. In G.G. v. Gloucester County School Board, the Fourth Circuit concluded that the Title IX regulation permitting sex-segregated bathrooms is ambiguous as applied to transgender students, and deferred to an informal letter from the U.S. Department of Education ("DOE") under the Obama Administration that interpreted the regulation to require schools to treat transgender students consistent with their gender identity. 822 F.3d 709, 718-24 (4th Cir. 2016). But the U.S. Supreme Court stayed that decision on August 3, 2016, and granted certiorari on October 28, 2016, to review the matter is currently reviewing the matter. Then, on February 22, 2017, the Trump Administration withdrew and rescinded the letter to which the Fourth Circuit deferred, and on which the Fourth Circuit entirely based in its decision. The Fourth Circuit did not indicate in its decision how it would have ruled in the absence of the DOE letter, nor did it address the implications of the Supreme Court's requirement that Spending Clause statutes, like Title IX, be unequivocally clear. Following the federal government's change in position, the U.S. Supreme Court vacated the Fourth Circuit's decision and remanded the matter to the lower court for further proceedings.

In light of all of the foregoing, it is the opinion of this Office that a school could prohibit a male student with nontraditional gender-identity traits from participating in a traditional girls-only sports program and still comply with Title IX.

We note that, consistent with our view that Title IX leaves the consideration of gender identity to the discretion of state and local school authorities, state high school athletic associations across the country have taken varied approaches to this issue. In Texas, the Constitution of the University Interscholastic League states: "Gender shall be determined based on a student's birth certificate. In cases where a student's birth certificate is unavailable, other similar government documents used for the purpose of identification may be substituted." But in California, the California Interscholastic Foundation policy is that "[a]ll 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." Some states, like West Virginia, have no statewide policy.

This Opinion does not, of course, bind the federal government or any court that might consider this question in the future. Both the federal government and private parties have the ability to enforce Title IX. The federal government has an express right to do so under the statute, 20 U.S.C. § 1682, and the U.S. Supreme Court has determined that private parties have an implied private right of action, Cannon v. University of Chicago, 441 U.S. 677, 703 (1999). In a private action against a local school board, the Supreme Court found that damages may be awarded. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992).

Currently, there is no threat of federal action against schools that decline to consider a student's gender identity in determining whether the student can participate in a single-sex sports team. Under President Obama, the federal government issued a guidance letter on May 13, 2016, stating that it would "treat a student's gender identity as the student's sex for purposes of Title IX and its implementing regulations." As to sports teams, the letter stated that "Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams," but declared that "[a] school may not . . . adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students other students of the same sex (i.e., the same gender identity) or others' discomfort with transgender students."

While we do not believe the Obama-era guidance required schools to allow students to participate in sports consistent with their professed gender identity, that question is now irrelevant. In addition to withdrawing the DOE letter at issue in G.G. v. Gloucester County School Board, President Trump has withdrawn and rescinded the May 13, 2016, guidance letter, and stated that the federal government "will not rely on the views expressed" therein. The Trump letter explains that the previous guidance did not "contain extensive legal analysis or explain how the position is consistent with the express language of Title IX," and states that the federal government intends "to further and more completely consider the legal issues involved." Consistent with the analysis in this Opinion letter, the Trump letter reaffirms that "there must be due regard for the primary role of the States and local school districts in establishing educational policy."

Future administrative action by the federal government and future court decisions could impact the conclusions and analysis in this Opinion.

Sincerely,

Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General