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Summary
The Equal Rights Amendment (ERA), which is part of the Massachusetts Declaration of Rights and Constitution. The ERA states that “equality under the law shall not be abridged because of sex, race, color, creed or national origin.” The ERA was applied to school athletics in 1979 in the matter of Attorney General v. MIAA, 378 Mass. 342 (1979), a case which schools continue to follow today. Similar to Title IX, the ERA and interpretive case law ensures equitable opportunities for boys and girls to participate in school athletics. ERA, however, has been applied in such a way as to allow for mixed gender teams. In Attorney General v. MIAA, the court determined that a blanket rule prohibiting boys from playing on girls’ teams, where there was no equivalent boys’ team, violated the ERA.
As a result of this 1979 ruling, the MIAA amended its rules to state, “A girl may play on a boys’ team if that sport is not offered in the school for the girl, and a boy may play on a girls’ team if that sport is not offered in the school for the boy.” This has led schools across Massachusetts to afford opportunities for both boys and girls to compete in sports designated for the other sex where the school did not offer a boys and girls team in the same or relatively equivalent sport.
The case involved male students who were interested in participating in girls’ field hockey. The MIAA advanced several arguments in support of its rule to prohibit boys from girls’ teams - all of which were rejected. The court rejected the arguments that biologically males would have an advantage over females, that it would be unsafe for boys and girls to compete against one another, or that boys would inevitably overtake girls’ sports. In D.M. et al. v. Minnesota State High School League et al., Case No. 18-3077, the 8th Circuit struck down an athletic association rule that prohibited boys from participating in the schools’ competitive dance teams. Citing the Equal Protection clause of the 14th Amendment of the U.S. Constitution,
the 8th Circuit decision compelled schools to offer the boys the opportunity to participate in competitive dance. While not precedent setting in Massachusetts, the 8th Circuit decision suggests that schools should also consider the 14th Amendment Equal Protection Clause in disputes over gender based athletic opportunities in a similar manner as the ERA.
In 2019, the MIAA revised the rule to say: “If a school offers a single team in a particular sport, it may not restrict eligibility based on gender unless such restriction is necessary to ensure that the school’s gendered designation of athletic opportunities complies with Title IX (either by demonstrating proportionality or the absence of unmet interest among members of the underrepresented sex).” This change better clarified the interplay between the ERA and Title IX obligations.
Blanket prohibitions based on gender should be avoided. The MIAA case in 1979 and D.M. case decided by the 8th Circuit Court show that when an athletic association has a blanket prohibition of boys playing on girls teams such rules were overly broad and not sufficiently tailored to the interest in advancing gender equity in school based athletic programs.
Collect and understand the data about boys’ and girls’ participation in athletics. Currently, schools report to the Department of Elementary and Secondary Education on the number of single gender sports and teams and number of participants by gender as part of Title IX compliance monitoring.
If schools are providing relatively equal athletic opportunities to boys and girls, then permitting boys to play on girls’ teams and vice versa meets the requirements of the ERA and likely would not violate Title IX.
If the data show that opportunities for boys and girls are not equal, then allowing students of the over-represented gender onto teams of the under-represented gender may violate Title IX and should be carefully considered.
Student safety has not been a successful defense to excluding students of one gender from participating on teams of the opposite gender. The arguments generally fail due to the lack of correlation between injuries and mixed-gender teams.
43. Gender and Participation
- If a school offers a single team in a particular sport, it may not restrict eligibility based on gender unless such a restriction is necessary to ensure that the school’s gendered designation of athletic opportunities complies with Title IX (either by demonstrating proportionality or the absence of unmet interest among members of the underrepresented sex).