APPEAL from the Circuit Court of Champaign County; the Hon.
ROGER H. LITTLE, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Plaintiff Trent Petrie by his mother and next friend, Pattsi Petrie, challenges (1) a rule of Champaign Central High School (Central) operated by defendant Champaign Community Unit School District No. 4 (Unit 4) which restricts membership on the sole volleyball team sponsored by the school to girls, and (2) rules of defendant Illinois High School Association (IHSA), a voluntary association of public and private high schools of the state, which restrict membership on the teams participating in the only volleyball tournament sponsored by it to girls.
On September 14, 1978, plaintiff brought suit in the circuit court of Champaign County seeking an injunction against Unit 4's enforcement of its rule which prohibited him from playing on the volleyball team and against IHSA rules which prevented him from competing in the only IHSA sponsored State volleyball tournament. During subsequent proceedings, a temporary restraining order and a preliminary injunction were denied. Later, after a hearing on the merits, plaintiff's suit was dismissed for want of equity. Plaintiff appeals from that order.
At the hearing on the merits, some of the evidence was received by stipulation, and the parties agreed that evidence received at the hearing on the request for preliminary injunction might be considered. Plaintiff was shown to then be a 16-year-old junior, 5'11" in height and 170 lbs. in weight, who had reported for the team and had been practicing with it when informed by school officials that he could not play in games with other schools because of defendants' rules. Much of the evidence including the matters set forth in the opening paragraph was not disputed. The other details of the evidence can best be discussed with the points of law to which they relate.
The trial court reasoned that the prohibitions against boys were classifications based on sex but were justified because they preserved, fostered and increased athletic competition for girls and prevented unfair competition that would arise from male dominance of the game. Defendants seek to support the decision on the same basis. Plaintiff agrees that there is a valid State interest in preserving, fostering and increasing athletic opportunities for girls but strongly disagrees that there is any important State interest in avoiding an imbalance in competition or preventing a male dominance. He also asserts that the classification is both overbroad and underbroad and uses sex as a proxy for the actual target as a mere matter of convenience. Although plaintiff does not concede that Central and IHSA may have separate volleyball teams and tournaments for boys and girls, the major thrust of his argument is that it is constitutionally impermissible to have volleyball teams and tournaments only for girls without opportunity for participation by boys.
There is no dispute that to be valid the regulations attacked must meet the requirements of the due process clause of the fourteenth amendment as well as article I, section 18, of the Illinois Constitution of 1970, which prohibits "the State or its units of local government and school districts" from denying or abridging equal protection of the laws on account of sex. Unit 4 is a school district and its action is State action regulated by the fourteenth amendment. IHSA's status is not as clear, but it concedes that because of its formation as an organization of schools, mostly public, its actions are also that of the State. Defendants also concede the applicability of section 27-1 of the School Code which states in part:
"No student shall, solely by reason of that person's sex, be denied equal access to physical education and interscholastic athletic programs or comparable programs supported from school district funds. Equal access to programs supported from school district funds and comparable programs will be defined in guidelines promulgated by the State Board of Education in consultation with the Illinois High School Association." Ill. Rev. Stat. 1977, ch. 122, par. 27-1.
The United States Supreme Court has never treated classifications based on gender as suspect and subject to strict scrutiny as it has done with those based on such factors as race, alienage and nationality. (In re Griffiths (1973), 413 U.S. 717, 37 L.Ed.2d 910, 93 S.Ct. 2851.) Rather, it has held in Craig v. Boren (1976), 429 U.S. 190, 197, 50 L.Ed.2d 397, 407, 97 S.Ct. 451, 457, that gender based classifications "must serve important governmental objectives and must be substantially related to achievement of those objectives." A similar statement has also been applied in Orr v. Orr (1979), 440 U.S. 268, 59 L.Ed.2d 306, 99 S.Ct. 1102; Califano v. Webster (1977), 430 U.S. 313, 51 L.Ed.2d 360, 97 S.Ct. 1192; and Califano v. Goldfarb (1977), 430 U.S. 199, 51 L.Ed.2d 270, 97 S.Ct. 1021.
The provision of article I, section 18, of the Illinois Constitution of 1970, prohibiting a denial of equal protection because of sex, was first interpreted and applied by the Illinois Supreme Court in People v. Ellis (1974), 57 Ill.2d 127, 311 N.E.2d 98. The court found to be invalid section 2-7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702-7(1)) which at the time the offenses charged were committed provided that no boy under 17 and no girl under 18 at the time of the alleged offense could be prosecuted under the criminal laws of the State.
The court referred to the debate which occurred when section 18 was proposed on the floor of the convention as an amendment to the report of the Bill of Rights Committee. Proponents of the amendment had argued that courts> had interpreted the general equal protection clause in such a manner that classifications based on sex were common and proper so that the proponents felt that such an amendment was necessary in order to guarantee women the same type of equality granted, for example, to blacks. (5 Record of Proceedings, Sixth Illinois Constitutional Convention 3669, 3675-76.) In view of the debates and the specific language of the provision, the court found "inescapable" the conclusion that section 18 was intended to supplement and expand the guarantees of the general equal protection clause and, therefore, ruled that "a classification based on sex is a `suspect classification' which, to be held valid, must withstand `strict judicial scrutiny.'" 57 Ill.2d 127, 132-33, 311 N.E.2d 98, 101.
The State interest required to meet the Federal "strict scrutiny" standard has been described by the United States Supreme Court as "overriding" (Loving v. Virginia (1967), 388 U.S. 1, 11, 18 L.Ed.2d 1010, 1017, 87 S.Ct. 1817, 1823); "compelling" (Graham v. Richardson (1971), 403 U.S. 365, 375, 29 L.Ed.2d 534, 544, 91 S.Ct. 1848, 1854); or "substantial" (In re Griffiths (1973), 413 U.S. 717, 722, 37 L.Ed.2d 910, 915, 93 S.Ct. 2851, 2855). The Ellis court found "no compelling state interest" which justified the disparate treatment. Necessity to accomplish the government interest has also been stated to be a required element in meeting the Federal "strict scrutiny" standard (e.g., In re Griffiths; Loving). Ellis did not discuss this factor.
Illinois Supreme Court cases subsequent to Ellis have not further explained the "strict scrutiny" standard as it is to be applied in Illinois. In People v. Boyer (1976), 63 Ill.2d 433, 349 N.E.2d 50, cert. denied (1977), 429 U.S. 1063, 50 L.Ed.2d 779, 97 S.Ct. 789, sections 11-10 and 11-11 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, pars. 11-10, 11-11), which make incest committed by a father with a daughter a more serious offense than that committed by a mother with a son, were held to be valid. The court reasoned that the child was the victim of incest, and that when the victim was a female who could become pregnant, the damage was greater than when the victim was a male. The court questioned whether the classification was one based entirely on gender but stated that if it was, the foregoing reasoning justified it under the strict scrutiny standard. Again, the element of necessity was not discussed.
Neither the United States Supreme Court nor the courts> of review of this State have previously dealt with gender-based classifications as related to eligibility to participate on athletic teams or in athletic events. Cases from other jurisdictions are of recent origin. In Brenden v. Independent School District 742 (8th Cir. 1973), 477 F.2d 1292; Morris v. Michigan State Board of Education (6th Cir. 1973), 472 F.2d 1207; Gilpin v. Kansas State High School Activities Association, Inc. (D. Kan. 1973), 377 F. Supp. 1233; Reed v. Nebraska School Activities Association (D. Neb. 1972), 341 F. Supp. 258; and Haas v. South Bend Community School Corp. (1972), 259 Ind. 515, 289 N.E.2d 495, rules prohibiting capable girls from playing on boys' teams were all struck down upon State or Federal equal protection grounds.
In Leffel v. Wisconsin Interscholastic Athletic Association (E.D. Wis. 1978), 444 F. Supp. 1117, a rule excluding girls from boys' teams in contact sports was similarly deemed invalid unless girls' teams were established. In Darrin v. Gould (1975), 85 Wn.2d 859, 540 P.2d 882, and Commonwealth v. Pennsylvania Interscholastic Athletic Association (1975), 18 Pa. Commw. Ct. 45, 334 A.2d 839, exclusion of capable girls from boys' teams even in contact sports was ruled to be violative of equal protection regardless of the existence of girls' teams.
The exclusion of girls from boys' teams was generally sought on grounds that girls, as a group, were less capable than boys at the sports involved and, in the contact sports, that they were more prone to injury. The courts> rejected these arguments, reasoning that the blanket prohibition placed a stigma of inferiority on girls as an excluded class and that the obviously better way to determine whether they were capable of playing was to give them a try out and then let the coach make a subjective determination as to whether they were capable of playing. The argument as to the danger of injury was answered by noting that not all girls were of a physique making them excessively injury prone and that, in any event, no objective standards had been set forth to eliminate the more frail boys.
Here, boys were the excluded class and their exclusion was made not because they were not likely to be good enough but because they were likely to be too good to permit adequate opportunities for girls. As stated in Attorney General v. Massachusetts Interscholastic Athletic Association, Inc. (hereinafter MIAA) (1979), ___ Mass. ___, 393 N.E.2d 284, the exclusion here carries no stigma of unworthiness to the excluded class. MIAA and Gomes v. Rhode Island Interscholastic League (D.R.I. 1979), 469 F. Supp. 659 (subsequently declared moot by the United States Court of Appeals, First Circuit, Docket No. 79-1181, August 31, 1979), both very recently decided, are the only reported cases called to our attention ruling upon the propriety of excluding males from public athletic teams in order to enhance and protect the athletic opportunities of females.
In Gomes, the plaintiff sought to play on a high school volleyball team limited to girls at a school that had no other volleyball teams on which boys could play. The defendant was an organization similar to IHSA and similarly provided volleyball competition only for teams composed exclusively of girls. The school had teams open to members of both sexes in cross country, tennis, track, basketball and baseball. The opinion recited that boys constituted "the overwhelming majority on those teams * * *." (469 F. Supp. 659, 661.) Teams exclusively for girls were provided in tennis, track, basketball, gymnastics, volleyball and softball. A football team, limited to boys for safety reasons, was also provided. Upon being denied permission to play on the volleyball team after having practiced with it, plaintiff brought suit to nullify the defendants' rules against his participation. He claimed violation of the Federal due process clause and 42 U.S.C. § 1983 (1976).
The team coach testified that in her opinion the playing skills of boys and girls were equal but conceded that if the game became more popular with boys, they would begin to dominate the teams. The latter conclusion was supported by the testimony of a physician and a researcher that high school boys' greater muscle strength, height, and length of limbs placed girls at such a disadvantage that few girls would be able to play if the sport were opened to boys.
Referring to this evidence, the court stated:
"In light of the evidence, these contentions are difficult to dispute. Rogers High has made a noble and noteworthy effort to provide athletic opportunities for females. At the high school level, the average male is objectively more physically capable than the average female. Open competition would, in all probability, relegate the majority of females to second class positions as benchwarmers or spectators. As the Sixth Circuit noted in the context of basketball,
`[w]hen the classification, as here, relates to athletic activity, it must be apparent that its basis is the distinct differences in physical characteristics and capabilities between the sexes and that the differences are reflected in the sport of basketball by how the game itself is played. It takes little imagination to realize that were play and competition not separated by sex, the great bulk of the females would quickly be eliminated from participation and denied any meaningful opportunity for athletic involvement.' Cape v. Tennessee Secondary Sch. Athl. Ass'n., 563 F.2d 793, 795 (6th Cir. 1977).
Distinguishing between male and female athletics raises no constitutional problems. The school committee has acted upon a demonstrably benevolent purpose and on objective and accurate medical evidence. See Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977). There is, however, no dispute on this aspect of Rogers High's athletic program. Plaintiff readily agrees that `separate but equal' teams are not only athletically beneficial, but also constitutionally permissible. See Hoover v. Meiklejohn, [430 F. Supp. 164 (D. Colo. 1977)]; Ritacco v. ...