Constitutional Test for Gender Discrimination in Public Facilities
Kozlowski, James C., Parks & Recreation
NRPA Law Review
The description of the Sullivan opinion contained herein resulted from my case research in response to an inquiry regarding alleged gender based discrimination in providing public athletic facilities. In this particular instance, the male leadership of a girls softball association in a metro county claimed that the county (in particular one county commissioner) was intentionally ignoring the construction of needed facilities in his geographical area because it would benefit female participation. According to the softball association, on several occasions, this elected commissioner had stated that he "just doesn't want any county park money spent to benefit the girls."
To counter such perceived genderbased discrimination, the softball association was looking for case examples that might clarify whether the law would indeed require gender equity in providing park and recreation facilities and programs. In particular, the inquiry referenced Title IX of the Education Amendments of 1972 as a legal basis for requiring gender equity in local park and recreation facilities.
Title IX, however, prohibits discrimination on the basis of sex "in education programs receiving Federal financial assistance." While athletics are considered an integral part of an institution's education program and are therefore covered by Title IX, this particular federal law would not necessarily apply to allegations of gender discrimination in the provision of county athletic facilities by a local park and recreation agency since this situation would not involve "education programs receiving Federal financial assistance."
However, as illustrated by the opinion of the federal circuit court in the case of Sullivan v. City of Cleveland Heights (6th Cir. 03/15/1989), such allegations of gender-based discrimination may give rise to a federal claim based upon the Equal Protection Clause of the U.S. Constitution. (Moreover, there may be state laws or local ordinances that prohibit gender discrimination in providing public programs and facilities.)
As stated in Sullivan, the 'proper standard for gender-based discrimination" is as follows: "To withstand constitutional challenge, previous cases establish that classifications by gender must serve important government objectives and must be substantially related to achievement of those objectives."
In Sullivan, the plaintiff alleged that the city imposed upon her an unconstitutional classification based on gender by affording her an unequal facility for changing clothes. The specific issue was, therefore, whether "Sullivan was accorded treatment by the City of Cleveland Heights unequal to that accorded her male counterparts.' If such unequal treatment existed, the court found that "the equal protection clause of the fourteenth amendment [to the U.S. Constitution] was violated unless the difference in the facilities bore a substantial relationship to an important governmental objective."
Similarly, applying these principles and reasoning to the allegations of gender discrimination by the women's softball association, the issue would be whether there is substantial evidence that "such unequal treatment existed" in the provision of athletic facilities for women in the county. If so, the county would have to show that "the difference in the facilities bore a substantial relationship to an important governmental objective" which would somehow justify unequal treatment between men and women.
Functionally Equivalent Facilities?
In Sullivan v. City of Cleveland Heights, 869 F2d 961 (6th Cir. 03/15/ 1989), plaintiff Kate Sullivan claimed her constitutional rights under the equal protection clause of the 14th Amendment were violated because the clothes-changing facilities that were made available for her at a public hockey arena were unequal to those provided for male hockey players. The facts of the case were as follows:
Kate Sullivan, 10-years old at the time of suit, was enrolled in the City of Cleveland Heights' hockey program. …