Effective Date of Rule: Thirty-one days after filing.

     Purpose: As the rule was previously written, WAC 392-190-026 only allowed schools to maintain separate sports teams for girls and boys in grades 7-12. Sports teams in grades K-6 were required to be coeducational. This was inconsistent with RCW 28A.642.020 and Title IX of the Education Amendments of 1972, which allow schools to provide separate sports teams at any grade, provided that they do so with no disparities based on sex.

     The proposed amendments to WAC 392-190-026 allow schools to provide separate sports teams for male and female students at any grade, provided that they do so with no disparities based on sex.

     Citation of Existing Rules Affected by this Order: Amending WAC 392-190-026.

     Statutory Authority for Adoption: RCW 28A.642.020 and 28A.640.020.

      Adopted under notice filed as WSR 13-07-021 on March 12, 2013.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

     Date Adopted: April 30, 2013.

Randy Dorn

Superintendent of

Public Instruction

OTS-5189.1

AMENDATORY SECTION(Amending WSR 11-09-024, filed 4/13/11, effective 5/14/11)

WAC 392-190-026   Recreational and athletic -- Sex discrimination -- Equal opportunities -- Separate teams.   (1) Sports teams and programs offered by a school district must be equally open to participation by qualified members of both sexes. For sports and recreational activities offered for students ((in grades 7 through 12)), a school district may maintain separate teams for members of each sex if:

     (a) It can clearly be shown, under the factual circumstances involved in the particular case, that the maintenance of separate teams for boys and girls truly constitutes the best method of providing both sexes, as a whole, with an equal opportunity to participate in the sports or games of their choice; and

     (b) At the same time, a test of substantial equality between the two programs has been met.

     (2) For the purpose of this section and WAC 392-190-050(2) "substantial equality" must be determined by considering factors including, but not limited to, the following:

     (a) The relationship between the skill and compensation of coaching staffs;

     (b) The size of their budgets;

     (c) The quality of competition and game schedule;

     (d) Uniforms;

     (e) Equipment and facilities; and

     (f) Sufficient numbers of participants to warrant separate teams.

[Statutory Authority: RCW 28A.642.020 and 28A.640.020. 11-09-024, § 392-190-026, filed 4/13/11, effective 5/14/11.]