S. 543 — Fair Play for Women Act

This section states congressional findings concerning Title IX of the Education Amendments of 1972, including (1) growth in female high school athletic participation from nearly 300,000 in 1972 to more than 3,400,000 in 2019 and intercollegiate participation from nearly 30,000 in 1972 to 215,000 in 2020 at NCAA institutions; (2) current gaps leaving high school girls with 1 million fewer opportunities than boys (43% of total opportunities despite comprising nearly half of students) and colleges needing 148,000 more opportunities for women; (3) greater disparities for girls of color (67% of boys' opportunities at majority-students-of-color high schools vs. 82% at majority-white schools); (4) college noncompliance, with 93% having women's participation below enrollment rates (14% overall gap) and no federal funding rescissions; (5) inflated women's counts at NCAA institutions; (6) unequal treatment, including $252 million less in women's athletic scholarships in 2019–2020 and lower spending on recruiting (58 cents per dollar for men), travel (62 cents), and equipment (73 cents); and (7) widespread unawareness of Title IX rights and obligations.

This section sets forth the purposes of the Act, which are to (1) address unfair and discriminatory treatment of women and girls in sports in elementary and secondary schools, as well as institutions of higher education; (2) improve the collection and transparency of data pertaining to participation in and support for women’s and girls’ sports at schools receiving federal financial assistance; (3) ensure all students participating in athletics, as well as those who work in school-sponsored athletics, are aware of and understand the nondiscrimination rights of students related to their athletic opportunities; and (4) ensure all students have equal access to high-quality and supportive athletic opportunities.

This section defines terms for purposes of the Act, including— (1) elementary school and secondary school, having the meanings given those terms in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801); (2) collegiate, with respect to athletics, meaning intramural and club-level athletics or other athletics in which all participants attend the same covered institution of higher education; (3) covered institution of higher education, meaning a college, university, other postsecondary institution, or public system of higher education described in section 908(2)(A) of the Education Amendments of 1972 (20 U.S.C. 1687(2)(A)) and covered by section 908 of those Amendments (20 U.S.C. 1687), which defines the scope of entities subject to Title IX of the Education Amendments of 1972 (i.e., prohibiting sex discrimination in federally funded education programs); (4) covered local educational agency, meaning a local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system described in section 908(2)(B) of the Education Amendments of 1972 (20 U.S.C. 1687(2)(B)) and covered by section 908 of those Amendments; (5) intercollegiate athletic association, meaning any conference, association, or other group established by or comprised of two or more covered institutions of higher education that governs competitions among or exercises authority over intercollegiate athletics at such institutions and is engaged in commerce or an activity affecting commerce; (6) State athletic association, meaning any association, organization, or other group established by or comprised of two or more federally funded elementary schools or secondary schools that governs competition among or exercises authority over elementary school, secondary school, or interscholastic athletics at such schools; and (7) Title IX coordinator, meaning the individual who coordinates a covered local educational agency's efforts to comply with Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.).

This section prohibits State athletic associations and covered local educational agencies from discriminating on the basis of sex against any athlete in elementary school, secondary school, or interscholastic athletics, including through rules, required sports for membership, sponsored competitions or championships, or provided facilities, locations, or amenities. It further prohibits intercollegiate athletic associations and covered institutions of higher education from such discrimination in intercollegiate or collegiate athletics, including through rules, required sports for membership or participation, sponsored competitions or championships, provided facilities or amenities, goods or services for competitions, or revenue or benefit distributions (with violations for collegiate athletics applicable only to covered institutions of higher education). The section authorizes a private right of action in federal or state court by affected athletes (current, former, or seeking to participate) against the relevant association, institution, or agency, with courts authorized to award legal or equitable relief including compensatory damages (e.g., for financial injuries, emotional distress), punitive damages, attorney's fees, and expert fees. It requires annual training for relevant employees of State athletic associations, intercollegiate athletic associations, covered institutions of higher education, and covered local educational agencies on the section's provisions and enforcement procedures.

This section expands the equity in athletics disclosure requirements under the Higher Education Act of 1965 for institutions of higher education participating in federal student aid programs (i.e., annual reports on intercollegiate athletics participation, scholarships, revenues, and expenses to promote Title IX gender equity). Specifically, it (1) requires disclosures on collegiate (including intramural and club-level) athletics in addition to intercollegiate programs; (2) adds, for each men's and women's intercollegiate sport, details on athletically related student aid amounts, scholarship counts and averages, full-tuition or full-cost-of-attendance scholarships, and scholarship durations; (3) requires disaggregation of revenues, expenses, and other data by each men's and women's sport; (4) expands coach compensation reporting to include bonuses, benefits, buyouts, and payments by related entities (e.g., booster clubs); (5) adds reporting on multi-sport participants, men practicing on women's teams, race and ethnicity of athletes and coaches, intramural/club sport participation by gender, and Title IX compliance certification; and (6) revises submission timelines to October 15 annually (from prior requirements) with public posting by institutions and the Department by February 15, plus requires the Secretary to issue biennial gender equity reports beginning two years after enactment.

This section requires covered local educational agencies to provide annual training on Title IX rights (20 U.S.C. 1681 et seq.) and complaint procedures to the Department of Education's Office for Civil Rights to (1) Title IX coordinators and employees working with athletics, physical education, or health and (2) elementary and secondary school athletes, with such athlete training provided by a Title IX coordinator. This section requires covered institutions of higher education to provide equivalent annual training to (1) athletic department employees and employees with employment functions relating to collegiate athletics and (2) postsecondary athletes, with such athlete training provided by a non-employee Title IX expert. This section further directs the Secretary of Education to establish and publicly maintain—separate from the Office for Civil Rights database—a database of Title IX coordinators' names, phone numbers, and email addresses, disseminated in the same manner as institutional reports under section 485(g)(4)(B) of the Higher Education Act of 1965 (20 U.S.C. 1092(g)(4)(B)).

This section establishes annual administrative enforcement by the Secretary of Education for noncompliance with section 7 or Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)—which prohibits sex discrimination in federally funded education programs—by covered institutions of higher education, covered local educational agencies, elementary schools, and secondary schools. It requires the Secretary, at the beginning of each year, to identify entities found in noncompliance during the prior year via proceedings modeled on current law (20 U.S.C. 1682); authorizes civil penalties on such entities; and, for those in noncompliance during two or more of the prior five years, mandates submission of a compliance plan within 120 days and public release of the determination report.

This section provides a rule of construction clarifying that nothing in the Act exempts intercollegiate athletic associations, state athletic associations, covered institutions of higher education, or covered local educational agencies from Title IX of the Education Amendments of 1972, affirming their coverage both before and after enactment. (Title IX prohibits sex-based discrimination in federally funded education programs.)