I recently accepted an offer from the Mississippi Sports Law Review to publish my article, Approaching 50 Years: Title IX’s “Competitive Skill” Exception to the Prohibition on Single-sex Sports, in the journal’s upcoming 10th volume. The article conducts a thorough analysis of the lesser-known exception to Title IX’s general rule that school sports teams must be co-ed.
My interest in the topic was piqued while litigating a case in Minnesota a couple of years ago where I represented two high school boys who were prohibited from trying out for their high school competitive dance teams. We took the case all the way to the 8th Circuit where we won a preliminary injunction on equal protection grounds. Unfortunately, the court declined to address our claim that limiting competitive dance teams to girls-only also violates Title IX because selection to dance teams is not based on “competitive skill.” The court would’ve been the first appellate court to interpret the meaning of Title IX’s competitive skill exception.
As a result of the court’s decision not to address the Title IX claim, I wrote this article to take on the important task of attempting to determine the meaning of the competitive skill exception. A full understanding of the exception is necessary to determine whether all non-contact school sports teams may be limited to a single sex under Title IX. If so, then Title IX’s general prohibition against single-sex sports is effectively nullified by its exceptions, and future litigants lack an important avenue for statutory recourse for discrimination on the basis of sex. The article will be published sometime in the Spring of 2021. In the meantime, you can view a draft of the article on SSRN.