(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 of 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 Director may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
(d) Adjustment period. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics at the elementary school level 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. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics at the secondary or post-secondary school level 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.
(Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682; and sec. 844, Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 484)
[40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975]
Notes of Decisions
Equity in Athletics, Inc. v. Dep't of Educ., 639 F.3d 91 (4th Cir. 2011).
· cites it 2× “” 45 C.F.R. § 86.41 (c). One of the ten factors used to determine equality of opportunity is “[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.”
Pederson v. Louisiana State Univ., 912 F. Supp. 892 (M.D. La. 1996).
· cites it 8× “” 45 C.F.R. § 86.41 (c)(1). In 1979, HEW’s Office of Civil Rights (hereinafter “OCR”) added another layer to the administrative amalgamation.”
Equity in Athletics, Inc. v. Dep't of Educ., 675 F. Supp. 2d 660 (W.D. Va. 2009).
· cites it 5× “45 C.F.R. § 86.41 (a). While the regulations explicitly authorize recipients to “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,” 45 C.”
Arthur West v. Loretta E. Lynch, 845 F.3d 1228 (D.C. Cir. 2017).
“41 (c) and 45 C.F.R. § 86.41 (c)). According to the plaintiff organizations, some schools passed the test “not by offering increased athletic opportunities to female students, but by reducing the opportunities available to male students,” including by eliminating men’s varsity…”
Nat'l Wrestling Coaches Ass'n v. United States Dep't of Educ., 263 F. Supp. 2d 82 (D.D.C. 2003).
· cites it 4× “45 C.F.R. § 86.41 (c). This section lists nine additional factors an agency may consider when determining whether a funded entity is complying with the regulations by making equal opportunities available in athletics.”
Mularadelis v. Haldane Cent. Sch. Bd., 74 A.D.2d 248 (N.Y. App. Div. 1980).
· cites it 5× “The dispute in this instance centers upon the interpretation to be given the italicized portion of subdivision (b) of 45 CFR 86.41, promulgated under title 9, which explicitly covers separate sex teams in school athletics, to wit: "However, where a recipient operates or sponsors…”
Gomes v. Rhode Island Interscholastic League, 469 F. Supp. 659 (D.R.I. 1979).
· cites it 4× “45 C.F.R. § 86.41 . Responding to these judicial and legislative mandates, many schools now provide increased athletic opportunities for women.”
Lisa Martin v. Int'l Olympic Comm., 740 F.2d 670 (9th Cir. 1984).
“Moreover, defendants, not the women runners, created the system of separate events for men and women in the Olympics, and, therefore, should not now use that decision as a shield against legal action to end discrimination. Finally, my concurring colleague’s views on separate but…”
— 45 C.F.R. § 86.41(a) — 2 cases
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