The U.S. Supreme Court’s recent holding that neither Title IX nor the Equal Protection Clause of the 14th Amendment forbids states from conditioning eligibility to participate in sports on sex identified at birth has spurred intrigue into whether the Court might be open to revisiting other applications of Title IX—namely the three-part test for compliance—though a close reading of the ruling casts doubt on that possibility.

The three-part test is used by the federal government and courts to assess if a school has provided equitable athletic participation opportunities for male and female students. A school can comply by meeting one of three criteria.

Those three are usually coined “substantial proportionality” (the percentage of men and women playing sports is roughly the same as the percentage of undergrad men and women), “history and continuing practice of expansion” (the school has expanded athletic opportunities for the underrepresented sex), and “fully and effectively accommodating interests” (the school is meeting the athletic interests of the underrepresented sex).

Although the three-part test is widely accepted by courts and has become integral to higher ed and college athletics compliance, it is not expressed in the Title IX federal statute as enacted through the Education Amendments of 1972. Nor was it addressed in the executive branch’s 1975 regulations that followed.

Instead, the Department of Health, Education and Welfare in 1979 promulgated the three-part test as guidance through agency rule-making and regulatory authority.

That origin story for the three-part test is important, considering the current high court’s skepticism about judicial reference to agency interpretation.

Two years ago, the U.S. Supreme Court held in Loper Bright Enterprises v. Raimondo that judges may no longer defer to an agency interpretation when the authorizing statute is ambiguous or silent.

“Agencies,” Chief Justice John Roberts wrote, “have no special competence in resolving statutory ambiguities.”

The origin story is also relevant to a decision in January by the U.S. Court of Appeals for the 6th Circuit in Niblock v. University of Kentucky. In it, the 6th Circuit applied the three-part test and found Kentucky in compliance with Title IX. 

Niblock was brought by former college lacrosse players Elizabeth Niblock and Meredith Newman after the university eliminated its women’s lacrosse program. Other key facts were Kentucky’s lack of women’s teams for equestrian and field hockey. The 6th Circuit reasoned a district court judge correctly concluded Kentucky had fully and effectively accommodated the interests and abilities of female students.

What made Niblock intriguing is a concurring opinion by Circuit Judges Jeffrey Sutton and Eric Murphy. A concurring opinion agrees with the court’s decision but for different or additional reasons; a concurrence is not law and doesn’t set precedent, but it can prove influential, as Justice Brett Kavanaugh’s oft-cited concurring opinion in NCAA v. Alston (2021) has demonstrated.

In the Niblock concurrence, Judges Sutton and Murphy surmised that, based on Loper Bright, a court ought to “revisit the 1979 guidance in an appropriate case.” 

They suggested that “many indicators” signal Title IX prohibits only intentional discrimination, a threshold that some Title IX plaintiffs would be unable to show. 

Along those lines, Judges Sutton and Murphy mentioned how Title VI, which prohibits use of public funds to discriminate based on race, color or national origin, has been read by the U.S. Supreme Court “to bar only intentional discrimination.” 

They insisted that it “would make little sense to interpret Title IX’s nearly identical language as permitting such disparate-impact claims.”

Back to last week’s 6–3 decision by the court in its review of two cases, Bradley Little, et al. v. Lindsay Hecox, et al., and State of West Virginia, et al. v. B.P.J. & Heather Jackson (B.P.J.).

In his majority opinion, Justice Kavanaugh concluded that neither Title IX nor its regulations say, “or even hint,” that “schools must allow certain biological males to participate in women’s and girls’ sports.” Additionally, he cited those sources of law to assert they omit mention of use of puberty blockers or hormones to alter biological traits as an exception.

Justice Kavanaugh also cited Loper Bright, albeit for an assertion of law that draws support from agency interpretation. He stressed that a federal agency’s consistent interpretation of the statute is, as enunciated in Loper Bright, “especially useful in determining the statute’s meaning.”

It’s also telling that Justice Kavanaugh’s majority opinion, along with the concurring opinions by Justices Clarence Thomas and Neil Gorsuch and the dissenting opinion by Justice Sonia Sotomayor, kept to the topic of transgender athletes’ eligibility to play a sport.

At no point in the 77 pages of opinions did any of the justices write or imply, either in the text or a footnote, that either their review of Title IX’s application to transgender athletes or the precedent of Loper Bright opens the door to a broader review of Title IX’s application to sports. There was ample opportunity for one of the justices to ruminate on the topic, but notably none did.

That approach contrasts with other recent opinions by the justices. Consider Dobbs v. Jackson Women’s Health Organization (2022), where the court overruled two decisions (Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey) that had recognized a federal constitutional right to abortion before fetal viability. In a much-noted concurring opinion, Justice Thomas urged his colleagues to use future cases to “reconsider” precedent on same-sex marriage and access to contraception.

The Supreme Court won’t review Niblock, as neither the plaintiffs nor Kentucky filed a writ of certiorari.

Title IX lawyer Lori Bullock, who represented Niblock and Newman in that case, says the prospect of an agency-skeptical Supreme Court adopting a similar view as the one enunciated in the Niblock concurring opinion ultimately persuaded her clients not to seek further review, bringing their challenge to an unsuccessful end.

However, B.P.J. has led Bullock to think otherwise, largely because of Kavanaugh’s observation that the executive branch’s Title IX regulations were “especially useful” in discerning the statute’s meaning.

“I can’t think of a time where I wished I had a crystal ball more than right now,” Bullock said in a phone interview. “If I had known this is how they would have felt, I think we would have absolutely taken it all the way.”

Since Niblock, the Loper Bright argument has surfaced in at least two pending Title IX cases. One involves Stephen F. Austin State University, which has invoked the doctrine in defending against a sex-discrimination case brought by female athletes whose sports faced elimination. The other was raised by a group of male wrestlers suing California Baptist University for cutting their program.

Pacific Legal Foundation (PLF) senior attorney Caleb Trotter, who represents the Cal Baptist plaintiffs, argues that the decision in B.P.J. references only the 1975 Title IX regulations—not its 1979 policy interpretation establishing the three-part test.

Bullock acknowledged that Trotter is “technically correct” about the scope of the opinion, but added: “If that door is still open, it is open just a crack. Based on the language the court used, I think it’s ultimately a losing argument for schools and Pacific Legal.”

The broader significance of B.P.J., however, may lie less in what the Supreme Court said than in what it declined to address.

It’s noteworthy that, for decades, the U.S. Supreme Court hasn’t accepted review of a case that involved review of the now 47-year-old three-part test. That has been true both when the court has had a progressive majority and when there’s been a conservative majority. A sensible reading is that the three-part test should remain embedded for the foreseeable future. 

Still, if four justices—the minimum needed for the Court to agree to review a case—want to reconsider, they can do so when a case presents the opportunity.