Legal Question in Discrimination Law in Michigan

Re: High School Athletics: Boys in girls sports

Unconstitutional in Massachusetts. Excerpts with cites follow:

Buchanan v. Director of Div. of Employment Sec., 393 Mass. 329, 471 N.E.2d 345 (1984): 1. Facial constitutionality. This court has found statutes to be

unconstitutional under the Equal Rights Amendment where they explicitly

established sex-based distinctions not based upon any compelling State interest.

See, e.g., Lowell v. Kowalski, 380 Mass. 663, 666, 405 N.E.2d 135 (1980)

(applying strict judicial scrutiny to two statutes basing inheritance rights of

illegitimate children on sex of parent, and finding one to be unconstitutionally

broad); Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, 378

Mass. 342, 354-357, 393 N.E.2d 284 (1979) (rule prohibiting male participation

on girls' sports teams held invalid under the Equal Rights Amendment).

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Attorney General v. Massachusetts Interscholastic Athletic Ass'n, Inc., 378 Mass. 342, 393 N.E.2d 284 (1979): Attorney General and others brought action against state Interscholastic Athletic Association and others for declaration that Association's rule, which provided that no boy could play on a girls' team though a girl could play on a boys' team if that sport was not offered for girls, was invalid and for an injunctive relief. The Supreme Judicial Court, Kaplan, J., held that: (1) discriminatory classification put into effect by the rule could not be justified on theory that the discrimination was not based on sex, but, rather, on biological differences between males and females; (2) discriminatory

classification could not be justified on theory that gender-based absolute

exclusion was necessary to protect players' safety; (3) discriminatory

classification could not be justified on a theory that it preserved emergent

girls' sports program from inundation by male athletes; and (4) rule prohibiting

any boy from playing on a girls' team was invalid under equal rights amendment

and statute barring sex discrimination in educational sphere. Case remitted for entry of judgment declaring rule invalid and enjoining its application.

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Opinion of the Justices to the House of Representatives, 374 Mass. 836, 371 N.E.2d 426 (1977): A question was propounded by the House of Representatives, and the Justices of the Supreme Judicial Court were of the opinion that a proposed bill prohibiting women from participating with men in certain contact sport teams

would be unconstitutional as allowing discrimination on basis of sex.