A female member of a mixed-gender golf team tees off on the Massachusetts Interscholastic Athletic Association.
Over the past 35 years, Title IX has been successfully used to increase the number of educational and athletic opportunities for girls and women. However, Title IX is limited by the financial focus of its last clause: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." Private, voluntary school activity associations fall into a gray area with respect to Title IX, since they only receive indirect federal financial assistance (through the schools that make up their membership). Therefore, in gender-equity cases involving these associations, other legal avenues must be traveled. One such case is Thomka v. Massachusetts Interscholastic Athletic Association [2007 Mass. Super. LEXIS 83 (Mass. Super. Ct. Feb. 8, 2007)]. Lindsey Thomka, a female student at private Cathedral High School in Springfield, was a member of the school's mixed-gender golf team. Cathedral fielded such a team because it lacked sufficient student interest to establish separate boys' and girls' teams - an accommodation that is allowed under Massachusetts Interscholastic Athletic Association rules. Under MIAA rules, schools can choose to offer golf either in the fall or spring, but not during both seasons. Fall was traditionally the preferred season since the athletes were better practiced (having played through the summer) and the weather is drier. With the rise of girls' golf, schools that added the sport tended to do so in the boys' off-season (usually the spring), with the justification being that one person could coach both teams. The result was that while MIAA boys' tournaments were held in the fall and spring to accommodate boys' programs held in one or the other season, girls' teams were offered just one, which was held in the spring. This complicated matters for girls, like Lindsey Thomka, who played on mixed-gender teams, which are primarily boys' teams opened to girls to accommodate their interest in participating in golf. MIAA bylaw 126.96.36.199 specifies that male and female players on mixed-gender teams must compete in regional and state tournaments held for their particular sport (and their particular gender). Cathedral's golf team would thus, if it qualified for the state team tournament, play in the fall tournament. Thomka, meanwhile, as a girl on a mixed-gender team - assuming she qualified for a slot in the individual golf tournament - would have to wait until the spring tournament to compete for individual honors. Thomka's freshman season in the fall of 2004 qualified her for the girls' individual state tournament held the following spring (she finished second). In the fall of 2005, Thomka, then a sophomore, finished the regular season with the lowest average score on her mixed-gender team, and although her team did not qualify as one of the top three teams for the fall team tournament - which crowns a team (boys' or mixed-gender) champion and an individual boys' champion, but not a girls' individual champion - Thomka requested that she nonetheless be eligible to compete. Denied entry into the individual championship portion of the state tournament by the MIAA, which cited bylaw 188.8.131.52, Thomka sued the association in the Superior Court of Massachusetts. Thomka argued that bylaw 184.108.40.206 was discriminatory on the basis of sex and violated the Massachusetts Equal Rights Amendment, and requested a preliminary injunction (granted) that would allow her to compete that fall. (Required to hit from the back tees because of a late MIAA rule interpretation, Thomka finished last in a field of boys.) On its face, bylaw 220.127.116.11 appears to be neutral, offering equal opportunities for male and female athletes to compete for individual and team championships in their respective sports. The court, however, found that the rule impaired the competitive talents of Thomka and may have prevented her from competing at the level of competition that her ability might otherwise permit. Bylaw 18.104.22.168, the court ruled, discriminates against female golfers whose teams play in the fall by requiring them to compete for championships in their off-season without the benefits of a season of interscholastic play, coaching and camaraderie. (Girls competing on girls' teams in the spring are not disadvantaged in this way.) By contrast, male golfers competing in the fall or spring always have the opportunity to compete for individual and team state championships in their sport's season. Having found that bylaw 22.214.171.124 discriminated against females, the court - noting that not all discrimination is prohibited - next examined whether the MIAA had a valid reason for such discrimination. In most cases, if the rule or practice being challenged discriminates against an individual based on his or her gender, the courts will apply an intermediate level of scrutiny. To withstand such judicial scrutiny, the challenged rule or practice must be substantially related to an important governmental objective. However, since the state of Massachusetts has an Equal Rights Amendment on the books, the court held that gender discrimination must be reviewed at the same strict level of scrutiny required in racial cases. As a result, the court held that the MIAA rule could only be upheld if it could be shown that the rule was necessary to achieve a compelling governmental interest and if its impact was limited as narrowly as possible. The MIAA argued that bylaw 126.96.36.199 was necessary to achieve two compelling governmental interests. First, the MIAA claimed that the discriminatory treatment of female golfers was reasonable because the girls' state tournament was traditionally held in the spring at the "exclusive" Woodland Golf Club. The Superior Court, however, rejected this justification, finding it to be socially outdated and clearly not sufficient to justify excluding girls from competing in the fall state tournament. Next, the MIAA claimed that the exclusion of female golfers from the fall state tournament was reasonable and justified because girls had another opportunity available to them - the spring girls' state tournament. The court, however, ruled that the spring girls' tournament did not represent an equal opportunity for girls. In support of its finding, the court reiterated that girls who played golf in the fall were forced to compete at a time when they did not have the benefit of competition or coaching. In addition, the court noted that, as was the case with Thomka, girls who participate on golf teams in the fall often participate in other sports in the spring, diverting their time and energy from golf. While acknowledging that the MIAA had attempted to encourage athletic participation by developing rules permitting mixed-gender competitions, the court ruled that by providing female golfers with only one individual and team championship annually, while male golfers had two such championships annually, the MIAA bylaw violated the Massachusetts Equal Rights Amendment. The decision of the Superior Court of Massachusetts, however, raises some interesting questions. For example, in states without an Equal Rights Amendment, would a rule requiring male and female players on mixed-gender teams to compete in regional and state tournaments of their own gender be upheld as substantially related to an important governmental objective? In addition, while not addressed by the court in the case, it would be interesting to see how the court would have applied Title IX to the current case. Since state athletic associations, as indirect recipients of federal funding, have been found to be subject to Title IX, would such a rule also violate Title IX? While neither one of those questions were answered by the court, state athletic associations would be wise to review their current rules and policies to make sure that male and female athletes are provided the same benefits.