(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor 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. However, where a 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, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.
(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors:
(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity.
Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
[45 FR 30955, May 9, 1980, as amended at 85 FR 30579, May 19, 2020; 89 FR 33888, Apr. 29, 2024]
Notes of Decisions
Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
· cites it 2× “49 —————— 48 A regulation allows single-sex teams, 34 CFR §106.41 (b) (2019), but the statute itself would of course take precedence.”
Amy Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996).
· cites it 10× “In so doing, we upheld the district court’s analysis and ruled that an institution violates Title IX if it ineffectively accommodates its students’ interests and abilities in athletics under 34 C.F.R. § 106.41 (c)(1) (1995), regardless of its performance with respect to other…”
Portz v. St. Cloud State Univ. & Minn. State Colls. & Universities, 297 F. Supp. 3d 929 (D. Me. 2018).
· cites it 4× “See 34 C.F.R. § 106.41 (a). Plaintiffs have filed this case as a class action on behalf of SCSU's current, prospective, and future female students, alleging that SCSU has violated Title IX by (1) providing male students with a greater opportunity to participate in varsity…”
Soule Ex Rel. Stanescu v. Connecticut Ass'n of Schs., Inc., 90 F.4th 34 (2d Cir. 2023).
· cites it 4× “The plaintiffs allege that the CIAC Policy failed to provide “equal athletic opportunity for members of both sexes,” 34 C.F.R. § 106.41 (c), because it afforded “students who are born female … materially fewer opportunities” for athletic achievement “than students who are born…”
Amy Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993).
· cites it 6× “See 34 C.F.R. § 106.41 (b). Finally, whether teams are segregated by sex or not, the school must provide gender-blind equality of opportunity to its student body.”
Cohen v. Brown Univ., 879 F. Supp. 185 (D.R.I. 1995).
· cites it 13× “34 C.F.R. § 106.41 (a). The regulations go on to clarify, however, that institutions are permitted to “operate or sponsor separate teams for members of each sex” under certain circumstances detailed therein.”
Mansourian v. Regents of Univ. of California, 602 F.3d 957 (9th Cir. 2010).
· cites it 5× “” 34 C.F.R. § 106.41 (c). 6 The regulations establish two components of Title IX’s equal athletic opportunity requirement: “effective accommodation” and “equal treatment.”
Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910 (7th Cir. 2012).
· cites it 4× “See 34 C.F.R. § 106.41 . HEW followed notice and comment rulemaking procedures, and President Ford approved the final regulations, as required by Title IX, 20 U.”
Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012).
· cites it 4× “” 34 C.F.R. § 106.41 (c). Section 106.41(c) provides a non-exhaustive list of factors relevant to determining whether equal athletic opportunities are available: (1)Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of…”
— 34 C.F.R. § 106.41(a) — 3 cases
— 34 C.F.R. § 106.41(b) — 5 cases
— 34 C.F.R. § 106.41(c) — 5 cases
— 34 C.F.R. § 106.41(c)(1) — 3 cases
— 34 C.F.R. § 106.41(c)(2) — 2 cases
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