For participation requirements they only have to meet one criteria - which could be accommodating interests and abilities of the underrepresented sex - so they are not out of compliance or avoiding a lawsuit - they are meeting one of the criteria. In Ohio State's case, they are a 50% split in gender (1a).
From the NCAA:
An institution must meet all of the following requirements in order to be in compliance with Title IX:
For participation requirements, institutions officials must meet one of the following three tests. An institution may:
Provide participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment of full-time undergraduate students;
Demonstrate a history and continuing practice of program expansion for the underrepresented sex;
Fully and effectively accommodate the interests and abilities of the underrepresented sex; and,
Female and male student-athletes must receive athletics scholarship dollars proportional to their participation; and,
Equal treatment of female and male student-athletes in the eleven provisions as mentioned above.