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Federal judge rules against girls trying to create sanctioned, separate high school football in Utah

UHSAA, three school districts aren’t in violation of Title IX or the Equal Protection Clause, ruling says

(Francisco Kjolseth | The Salt Lake Tribune) Sam Gordon, 14, works her fellow students at Herriman High School in an effort to sign up girls to play football during a recent clubs sign up day. Brent Gordon and his daughter, Sam, are part of a group suing multiple school districts to try to force the creation of sanctioned girls high school football that would play in the Spring.

The Utah High School Activities Association and three Utah school districts are not in violation of Title IX or the Equal Protection Clause in the U.S. Constitution by not offering a separate football team for girls, a federal judge ruled Monday.

U.S. District Court Judge Howard Nielson ruled in favor of the UHSAA and the Jordan, Canyons and Granite districts in the bench trial where Sam Gordon and other plaintiffs accused the association and districts of not offering equal opportunities to both genders, and a violation of their constitutional rights.

“It is well settled that laws that discriminate on the basis of sex are subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment,” Nielson wrote in his opinion. “The mere fact that Defendants do not provide separate football teams for boys and girls is not discrimination on the basis of sex, however.”

On the Title IX point, Nielson did not agree with Gordon’s lawyers’ that the USHAA and districts aren’t providing equal opportunities to boys and girls by not having a separate football team for girls.

“To the contrary, it is undisputed that girls are permitted to play football and do in fact play, albeit in extremely limited numbers,” Nielson wrote.

The bench trial, which lasted 13 days last September, featured testimony from football coaches, athletic directors, survey experts, and girls with experience playing football for their respective high schools as well as the Utah Girls Tackle Football League.

Many girls described positive experiences with teams on which they were the only girl. Others, however, recalled instances of bullying, exclusion and even alleged sexual assault.

While Nielson acknowledged that some girls did have unnecessarily negative experiences playing high school football, those experiences weren’t shown to result from “any practice or policy of UHSAA or any of the Districts,” and instead “appear to directly violate” the policies of the UHSAA and school districts.

A major point of contention by Gordon’s lawyers during the trial hinged on nomenclature and how it was used. They argued that the districts’ websites referred to the sport in question as “boys’ football” rather than “co-ed football” or just “football.”

They asked several coaches if they ever referred to the sport with “boys” in the name. They played audio of a school board meeting during which an official referred to the champion Corner Canyon as the “boys’ football team,” an instance Chargers coach Eric Kjar testified to not remembering despite being present.

In addition, Gordon’s lawyers contended that very few girls participate in football due to discouragement from players on the team or coaches. The girls who testified during the trial said that no administration official ever discouraged them from playing, though.

Those and other factors, Gordon’s lawyers said, led to a small number of girls going out for their high school football teams. But Nielson wrote that none of those factors “suffices to establish invidious discriminatory purpose or otherwise violates the Equal Protection Clause.”

Ascertaining whether school districts were violating Title IX depended on if they failed to meet girls’ interests in tackle football, ignored the ability to sustain the sport, or didn’t provide a reasonable expectation of competition. Gordon’s lawyers during the trial pointed a survey where girls ranked interest in different sports and other data they said proved the districts had the ability to sustain teams in various areas, but ostensibly ignored all of it.

Nielson, however, did not find those arguments compelling enough.

“We are pleased with the court’s ruling affirming our position that Canyons, Granite and Jordan School Districts did not violate the Equal Protection Clause of the US Constitution or Title IX in their athletics programs,” Assistant Attorney General Rachel Terry said in a statement to The Salt Lake Tribune. “As addressed in this case, with respect to football specifically, all students, male and female, are welcomed and encouraged to participate on their respective high school teams. The Districts will continue to strive to expand opportunities for all students and to ensure equal opportunities for male and female students in athletics and activities.”

Brent Gordon, Sam’s father who is also an attorney, called the case a “major victory” for girls in Utah.

“Our goal is to make Utah the birthplace of girls high school football and that goal has not changed,” Brent Gordon said in a statement to The Tribune. “Utah is the only place in the world that girls can play football on all girls teams and I am extremely proud of all of the thousands of girls In Utah who have had the courage over the past few years to follow their dream to play a sport they love regardless of whether the state’s leaders and representatives think that football is only for boys.”

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