At issue here is whether K-12 sports programs separated by gender, are subject to the equal protection guarantees afforded by the United States Constitution. In this construct students are classified by gender, as in girls soccer, or boys football. While many school districts may allow girls to play on certain teams where both genders do not have their own team, such as football or baseball in some areas, for the most part, there are real attempts to offer make most sports available to each gender.

The Equal Protection clause of the Fourteenth Amendment of the United States Constitution essentially provides that no person in any state shall be denied equal protection of the laws (U.S. Const. Amend. XIV). As applied to the instant scenario, the Courts have typically held that this means equal protection against discrimination on the basis of gender or sex. This means in turn, that states or governmental entities, including school districts, must treat their citizens or those under their jurisdiction equally. And accordingly, this applies to schools and school athletic teams as well.

Title IX of the Education Amendments of 1972 (Title 20 U.S.C. Sections 1681-1688), Section 1681, concerning sex provides specifically that:
Prohibition against discrimination; exceptions. 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…
Exceptions may include classifications in sports programs based on gender (Title 20 U.S.C. Sections 1681-1688 et seq).

Not surprisingly, the United States Supreme Court has spent a considerable amount of time addressing the issue of Title IX, and one of the first cases was one in which the Court considered whether Title IX applied to private schools whose students received federally funded scholarships (Grove v. Bell, 1984). The Court held that that the equal protection guarantee of the Fourteenth Amendment required compliance with Title IX, despite the fact that there was no inference of discrimination.

The courts have consistently found that Title IX legislation covers all educational activities, which would mean the K-12 athletics contemplated in the instant fact scenario, including sports activities. Moreover, Title IX is found to apply to an entire spectrum of activities within an educational institution, regardless of whether the programs receive federal funding. Where Title IX has become controversial is the three prong test previously applied to the compliance equation. Opponents have openly labeled this a quota system and claimed that there is no correlation between interest in certain sports as amongst the genders. The criticism is that it requires participation to be in proportion to gender based enrollment which may not be an appropriate measure. Instead, it is argued that interest should have primacy and that to do anything otherwise might result in discrimination against men as the dominant gender.

The case of Cannon v. University of Chicago, 441 U.S. 677 (1979) examined whether Congress intended a remedy to be derived from Title IX for private parties, and whether individuals could sue under Title IX, or only those in a class action format. The Court held in accordance with a test previously articulated in Cort v. Ash, 422 U.S. 66 (1975), that in certain instances a federal law was capable of being privately enforced. Among the questions to be answered in such an inquiry: whether an individual is part of a class intended to benefit from the statute; whether legislation intended a private right of action; whether a private right of action impedes the legislative intent; and whether this is of historic concern to the states.

Under the foregoing tests, there are clearly equal protection implications in the issues of sports in K-12 schools as segregated by gender.