Title IX: The New Shimmer of Statutes

It prohibits discrimination and mandates segregation.

I want to begin by thanking Eugene for inviting me to blog on my new article about Title IX and Sports,  Gender Identity, Sports, and Affirmative Action: What's Title IX Got To Do With It? I'm a long-time reader and fan of the VC.

Back many years ago (more than I care to remember), my organization (the Center for Individual Rights) and I represented plaintiffs in lawsuits challenging the elimination of male sports teams at colleges or universities, usually wrestling teams. Our mantra was that the Department of Education demanded, and the schools applied, a "quota" for female sports teams based on the percentage of females in the undergraduate population. (Calling things we sued over a "quota" was the legal strategy du jour back in the day.) We consistently lost.

Fast forward fifteen or twenty years. The new Title IX-related issue was whether transgender females should be permitted to play on female sports teams. The odd thing about the debate was that both sides claimed Title IX required its position. Those on the side of trans females playing on female teams said that precluding them from doing so was sex discrimination in violation of Title IX. Those against trans females playing on female teams said it would be sex discrimination if they did.

A guest commenter on the VC, Professor Doriane Coleman wrote some very interesting blog posts in March 2019 on this topic and piqued my interest. The next year, Professor Coleman co-wrote an article (with Michael Joyner and Donna Lopiano) called Re-Affirming the Value of the Sports Exception to Title IX's General Non-Discrimination Rule.

Whoa! There's a sports exception to a general rule about non-discrimination in Title IX? What is it?  When did it get there? How did it get there?

The text is not helpful in answering those questions. Title IX states that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program receiving Federal financial assistance." 20 USC 1681(a). The next subsection goes on to state that "[n]othing contained in subsection (a) … shall be interpreted to require any education institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist …." (Aside: if you read somewhere that Title IX has only 37 words, don't believe it.)

The statute does have exceptions. There is (believe it or not) a beauty pageant exception. Title IX also specifically permits schools receiving federal funds to have mother-daughter and father-son events so long as there are equivalent events for both. They also can have separate living facilities for the different sexes. But there's no explicit exception for sports.

So what is the "sports exception"? It is not that there is a specific number of varsity athletic spots and scholarships reserved for female athletes, although that might be part of it. It is the mandated existence of female sports teams. That is, sex-segregated sports teams are not just permissible (which I'll discuss tomorrow), but required. Yet for all other purposes (outside of sports), Title IX is a traditional rule against discrimination. In admissions, for example, sex cannot be considered by schools receiving federal funds, and an imbalance that might result from a difference in qualifications between the sexes would not, by itself, be a violation of Title IX. Indeed, schools can have choruses with "requirements based on vocal range or quality" (34 C.F.R. 106.34(a)(4)), even if it results in a chorus of only one sex, without violating Title IX.

This is why, in my article, I claim that Title IX is like "New Shimmer," the product shilled in a classic faux advertisement on Saturday Night Live, which was both a dessert topping and a floor wax. (Dan Aykroyd: "Tastes terrific!"; Gilda Radner: "And just look at that shine!"). Title IX is both a rule against discrimination and, in the context of sports, a rule that mandates a preference for females.

The problem with our past litigating position is that it skipped over the requirement that teams open to anyone are apparently proscribed. Once one accepts the proposition of sex segregation, it becomes much more difficult to argue that one baseline (proportion of athletes of each sex should roughly equal proportion of undergraduates) is more discriminatory than another (proportion of athletes of each sex should roughly equal proportion of undergraduates interested in varsity sports).

If sports teams open to everyone on an equal basis violate the statute, I wanted to figure when it became clear that such teams were illegal. How did a law that just says "don't discriminate"—and that has a specific provision stating that it should not be interpreted to require a preference because of any imbalance—come to mean that you must take sex into account and must provide a preference because of the imbalance that would result from completely open teams? How we got to that point, and what it means for trans females participating on female teams, will be the subject of my blog posts for the week.

Tomorrow, I will set forth some basics about the statute and nondiscrimination in general, and discuss some issues regarding discrimination that arise when segregation (e.g., separate rest rooms) is permissible. On Wednesday, I discuss the development of the sports-related regulations and the interpretations of those regulations and how they obscure the fact that open teams likely will be deemed a violation of the law. On Thursday, I discuss how language in many cases causes a similar problem.

I wrap up on Friday by discussing a case in Connecticut involving the participation of trans females on female teams and the disparate interpretations and understandings of Title IX that were asserted therein, and, finally, some consequences of these interpretations of Title IX. Specifically, as applied to sports, Title IX is perhaps our foremost "equity" statute, as that term has been used in recent years (often in contrast to "equality"). I'll discuss other kinds of anti-discrimination laws, like those involving age and disability, in which arguments about "equity" in sports (or even other areas) could—maybe should—be made if Title IX is the model.