45 C.F.R. § 86.34

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A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.

(a) With respect to classes and activities in physical education at the elementary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from the effective date of this regulation. With respect to physical education classes and activities at the secondary and post-secondary levels, the recipient shall comply fully with this section as expeditiously as possible but in no event later than three years from the effective date of this regulation.

(b) This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.

(c) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

(d) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards which do not have such effect.

(e) Portions of classes in elementary and secondary schools which deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.

(f) Recipients may make requirements based on vocal range or quality which may result in a chorus or choruses of one or predominantly one sex.

(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

Notes of Decisions

Cited in 2 cases, 1981–2018 · leading case: Rossley v. Drake Univ. & Drake Univ. Bd. of Trs., 336 F. Supp. 3d 959 (S.D. Iowa 2018).

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Rossley v. Drake Univ. & Drake Univ. Bd. of Trs., 336 F. Supp. 3d 959 (S.D. Iowa 2018). “33 ); courses ( 45 C.F.R § 86.34 ); counseling, guidance, or admission ( 45 C.”

Bd. of Educ. v. Califano, 507 F. Supp. 827 (S.D.N.Y. 1981). “45 C.F.R. § 86.34 (a). The Board argues that it reasonably believed that it would have violated Title IX if it had merged the seniority lists before the merger of the physical education programs was complete.”

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