Q: The girls basketball coach believes a member of the team is pregnant, but the student has not disclosed her pregnancy. The coach is concerned about the safety of the student and unborn child. The student has a UIL pre-participation physical examination form on file, but as with most students, it pre-dates the initiation of the school year. Can the athletic department require the student submit current medical certification verifying that she can participate in athletics?
A: Yes, the athletic department can require a medical release at any time continued participation raises a concern for the safety of the student; however, this practice must be applied consistently with all students having a physical condition requiring medical attention. Inconsistent application could result in a claim of discrimination and investigation by OCR.
Title IX prevents discrimination on the basis of sex, including treating students differently because of pregnancy or family status. The U.S. Department of Education Office of Civil Rights has issued guidance to school districts nation-wide that, “any special services provided to students who have temporary medical conditions must also be provided to pregnant students. Likewise, a student who is pregnant or has given birth may not be required to submit medical certification for school participation unless such certification is also required for all other students with physical or emotional conditions requiring the attention of a physician.” As such, a school district must treat pregnant students the same as it would treat any student with a temporary disability (e.g. broken leg, prolonged illness, etc.). This includes specifically, medical certification and re-certification, as well as expectations and privileges during the temporary absence, such as team travel, sitting on the bench, dressing out, etc.
Assuming the school district in this instance meets the consistency test and has a documented practice of requiring medical certification from students upon re-entry into a sport subsequent to accident or injury, the district is equally within its right to seek medical certification from the pregnant student. Should the student obtain physician consent to continue participation for all or any portion of the season without risk of harm to herself or the unborn child, the District's general athletic waiver and release forms should be sufficient to protect the school district from tort liability if the student or unborn child is injured during participation.
Finally, if your school district's extracurricular handbook does not address fitness for participation, we would recommend including a provision requiring that all students under a doctor's care obtain a medical release prior to initiation or continued participation in extracurricular activities.