By Mary Rohmiller and Alice Yao
The Eighth Circuit recently refused to use Title IX to keep a transgender girl off her high school softball team, and in doing so, left Title IX’s playbook for protecting female athletes fully intact.
On April 15, 2026, the Eighth Circuit decided Female Athletes United v. Ellison, denying a preliminary injunction that would have blocked a Minnesota high school athletic league’s policy letting a transgender girl play on the girls’ softball team. The decision is narrow and entirely consistent with longstanding Title IX athletics precedent. FAU does not weaken Title IX’s protections for female athletes; it illustrates why pleading matters: plaintiffs must allege facts tying the action or policy at issue to a sex-based denial of equal opportunity, and FAU did not. But nothing in this case precludes Title IX athletics claims involving unequal participation opportunities and unequal resources and equipment, as well as disputes over name, image, and likeness (NIL) money, from proceeding when properly pleaded.
What a Title IX Athletics Claim Must Plead
A viable Title IX athletics claim must connect the challenged action to a sex-based denial of equal athletic opportunity. The U.S. Department of Education’s 1979 Intercollegiate Athletics Policy Interpretation—the bedrock document for Title IX athletics compliance—directs the Department’s Office for Civil Rights (OCR) to ask whether differences between a school’s allocation of benefits, treatment, services, or opportunities between male and female athletes—both program-wide and in specific areas—create substantial, unjustified disparities. The areas it lists for review—equipment and supplies, scheduling, travel, coaching, facilities, medical services, housing, publicity, recruitment, and support services—all involve deliberate institutional choices about how to allocate finite resources between men’s and women’s sports programs.
When a school gives its men’s teams better equipment, better practice facilities, more coaches, or prime-time game slots, those are conscious choices by people who know they are treating men’s and women’s programs differently. For example, a school that funds recruiting for its men’s football and basketball teams as “flagship sports” but provides no recruiting funds for its women’s teams—and struggles to attract women athletes as a result—has made a deliberate choice. Animus is not required for a successful discrimination claim; it is enough that the school chose to “treat women differently.” See, e.g., Pederson v. Louisiana State Univ., 213 F.3d 858, 881 (5th Cir. 2000).
The 1979 Policy Interpretation provides the practical roadmap for Title IX claims. For participation claims, plaintiffs should plead facts such as roster numbers, enrollment, expansion history, unmet interest and ability, and the resulting shortfall in opportunities. For equal-treatment claims, plaintiffs should plead facts showing substantial, unjustified disparities in benefits or services across the program. These allegations matter because they identify institutional choices about how opportunities and resources are allocated between male and female athletes, rather than merely pointing to an unequal outcome. See, e.g., Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012); Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910 (7th Cir. 2012).
The Holding in FAU v. Ellison
With that framework in view, the defect in FAU was straightforward. FAU challenged a Minnesota State High School League bylaw that lets students play sports “consistent with their gender identity or expression.” FAU’s own complaint admitted the rule is neutral on its face. The complaint did not allege a substantial, program-wide disparity in participation opportunities, that the bylaw was discriminatory in design, or that it denied girls comparable treatment or benefits. Those omissions were dispositive.
Relying on longstanding Supreme Court precedent, the Eighth Circuit held that, on FAU’s pleadings, Title IX provided no private right of action for a challenge to a facially neutral policy based only on alleged unequal effects. See Alexander v. Sandoval, 532 U.S. 275 (2001); Cannon v. University of Chicago, 441 U.S. 677 (1979). The court did not hold that ordinary athletics claims are unavailable; it held that this complaint lacked the factual allegations supporting a showing of discrimination.
NIL and Revenue-Sharing Disputes Remain Viable
On June 6, 2025, the Northern District of California approved the settlement of a class action lawsuit challenging the NCAA’s longstanding ban on paying athletes from broadcast and other revenues—the so-called House Settlement. The House Settlement awarded $2.78 billion in back damages to athletes and, for the first time, allowed Division I schools to enter NIL deals directly with their student-athletes, subject to a cap of $20.5 million per school per year (increasing annually). The settlement does not mandate how schools must split that money among their teams; each school sets its own approach. Some schools have already concentrated NIL spending on as few as five sports, while others have spread it across seven or more.
Without robust Title IX enforcement, this new revenue-sharing system could entrench the very gaps between men’s and women’s programs that Title IX was designed to close. The NIL era may be the most important test of Title IX’s application to athletics to date. The court that approved the House Settlement expressly declined to decide whether direct school payments to athletes count as “athletic scholarships or grants-in-aid” (which must be distributed in proportion to participation) or as “benefits” (which need only be equivalent overall). The settlement is now on appeal to the Ninth Circuit, where an argument is being made that the back-damages distribution violates Title IX.
Federal guidance has added to the uncertainty. In January 2025, OCR said school NIL payments count as athletic financial assistance and must be distributed proportionally between male and female athletes. The Trump administration rescinded that guidance just one month later without replacing it. Then, in April 2026, President Trump issued an executive order titled “Urgent National Action to Save College Sports.” Executive orders can steer how federal agencies enforce the law, but as the FAU court noted, they do not themselves change the law. With OCR enforcement in flux, private Title IX lawsuits are more important than ever.
Private Title IX challenges to NIL distribution fit comfortably within the discrimination framework that FAU reaffirmed. A viable claim should identify the school’s allocation decision and the resulting substantial, unjustified disadvantage to women athletes, or allege that the stated revenue rationale is pretextual. For example, a complaint alleging that a school directs its entire $20.5 million NIL pool to men’s football and basketball while denying comparable athletic benefits to women, without a legitimate nondiscriminatory reason, would plead the kind of institutional choice and disparity that FAU lacked.
OCR Enforcement Also Remains Unaffected
Finally, FAU addressed only private lawsuits. OCR’s authority to enforce Title IX’s regulations runs on a separate track, and FAU does not speak to it. Whatever direction the executive branch takes on enforcement, those changes are independent of FAU and do not narrow the discrimination claims still available to private plaintiffs.
Conclusion
Female Athletes United v. Ellison ultimately answered a narrow pleading question. A plaintiff challenging a facially neutral eligibility rule cannot simply rely on alleged unequal effects while omitting facts that tie the practice to unequal athletic opportunity. That conclusion does not weaken athletes’ ability to challenge inequities that have driven Title IX athletics cases for decades. Schools that deliberately shortchange women’s programs—in equipment, facilities, coaching, scheduling, participation opportunities, or NIL dollars—face the same legal exposure they always have. Lawyers advising schools should continue to counsel full Title IX compliance, recognizing that FAU leaves the core Title IX protections for female athletes firmly in place.
