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.

Comments

[Dr. Ed 2]

"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. "

So this is how we could go to a higher ed system that is now almost 60% female without violating Title IX. That's how we can have a 2 Black female students for every Black male -- nationally -- without consequence.

[Noscitur a sociis]

What "consequence" would you like to see, exactly?

[Jerry B.]

Women are higher on the intersectionality ladder than men. Trans women are higher on the ladder than cis-women. Trans women of color are higher than white trans women. And so it goes.

[SimonP]

Title IX requires excluding "trans females" from "female teams," because it simultaneously requires the creation of those "female teams" and prohibits "all-comer teams" where biological males and females can both join.

Is that about the gist of it, Michael? Or are you going to have to bloat this out a bit further?

[TwelveInchPianist]

I guess we'll have to wait and find out, won't we?

[rloquitur]

Title IX does require the exclusion of "trans" women. Whether courts see it that way is a different matter.

My daughter is an athlete who still plays with boys--one day that's going to end.

[SimonP]

It's anyone's guess when the paragraph of actual analysis will occur. I'm looking forward to the author's abbreviated life story and experiences litigating Title IX, until then.

[rloquitur]

Any analysis has to start with reality. Males and females are physiologically different. My daughter plays travel hockey with boys. If she were a boy, she wouldn't be that exceptional, but as a girl, she is.

[SimonP]

Males and females are physiologically different.

And so? What follows from this completely uninteresting, trivially-true fact?

If a transwoman has gone through male puberty, and therefore has a clear competitive advantage over other women in a given sport, having nothing to do with innate talent or effort and everything to do with that puberty, then it makes sense to bar that transwoman from competing with cis women. But how often is that the case? Are transwomen all equally situated, in this regard? Is it always obvious when the advantage is “unfair,” or that it may well be within the range of ability that other women can fairly be expected to compete?

I don’t think the answer is going to be same for every sport, or even for every transwoman. The categorical exclusion of transwomen from women’s sports being pushed by conservatives isn’t about competitive advantage or reality; it’s about expressing a rejection of trans identity.

[David Nieporent]

Are transwomen all equally situated, in this regard? Is it always obvious when the advantage is “unfair,” or that it may well be within the range of ability that other women can fairly be expected to compete?

I don’t think the answer is going to be same for every sport, or even for every transwoman.

A silly argument. All cis men are not equally situated in this regard. Some will be within the range of ability that other women can fairly be expected to compete. But we still categorically exclude all cis men from women’s sports, because doing it on a case-by-case basis changes the very nature of the activity.

[Josh R]

But only with trans women is there a medical benefit to including then in women's sports.

[David Nieporent]

I… don't understand any aspect of that comment.

[Josh R]

Gender affirming care, which includes living your life consistent with your gender identity (which in turn includes playing on the team that matches your gender identity), is a recommended treatment for gender dysphoria.

[David Nieporent]

Males and females are physiologically different.

And so? What follows from this completely uninteresting, trivially-true fact?

That there have to be separate leagues for men and women, or women will be excluded from participation.

[rloquitur]

Obvious is not a synonym for "trivially-true." Males and females are different, and, as you've conceded, puberty creates an advantage. So what are we left with, people who made transition before puberty?

"The categorical exclusion of transwomen from women’s sports being pushed by conservatives isn’t about competitive advantage or reality; it’s about expressing a rejection of trans identity."

This is just so much nibbling around the edges. Men are men, and women are women--from a physiological standpoint--this idea that there shouldn't be a categorical ban, but some regulation of which trans women get to compete in women's events is just obfuscating the reality, i.e., that men and women are different, and if we are going to say that women have the right to compete fairly, that means they compete against women, if they so choose.

My daughter plays travel hockey with 13-14 year old boys. If she were a boy, she just wouldn't be that exceptional.

[Josh R]

Your summary is close, but not quite. From his article:

the argument that Title IX prohibits “trans females” from competing in women’s sports is very much dependent on the interpretation that Title IX is a set aside statute that not merely permits, but requires separate sports teams for females because females should not have to compete against “men” for available participation “opportunities" [...] I suspect that the correct answer probably lies in some compromise concerning the time spent transitioning, but I do not know (a footnote then suggests testosterone suppression suffices)

[David Nieporent]

Simon seems desperate to shut down this topic. First he called it "transphobic" (LOL)¹ and now this.
​
​
​
¹I am not laughing at being transphobic; I am laughing at how bad Simon's arguments were that it was transphobic.

[Longtobefree]

As written, Title IX just requires the elimination of "mens sports" and "womens sports" and they both be replaced by "sports". By implication, it also means replacing "mens showers" and "womens showers" with "showers.
Anybody can try out for any team, and the best get on the team. (no need to declare any gender necessary)
The expected result should be a reduction in the sport staffing employees, as the teams that generate the least funding, and championships, are eliminated.
In theory, this should have resulted in cost savings that could have reduced tuition.

[rloquitur]

Huh? This is silly. As a species, we are sexually dimorphic. That's a fact, and no amount of hormones, surgery etc. eliminates the differences between the sexes.

[DRM]

That a difference between A and B exists does not actually imply that an anti-discrimination statute tolerates, much less requires, segregation on the basis of the difference between A and B.

[rloquitur]

So no women's sports? Other than gymnastics?

[DRM]

Isn’t that the necessary conclusion of the actual statute?

Major premise: “No 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 or activity receiving Federal financial assistance”.

Minor premise: School sports are educational activities.

Conclusion: Whether or not it is a good idea, excluding boys from a school sport or team on the basis of their sex is illegal.

Seriously, what else can you conclude if you believe that the text of statutes passed by Congress are actually laws, not vague suggestions that the executive and judicial branches are free to ignore?

Obviously, girls'/women's sports that aren't part of a Federally-funded educational program are still legal.

[rloquitur]

"Title IX is both a rule against discrimination and, in the context of sports, a rule that mandates a preference for females."

Or just a preference for reality.

[Rev. Arthur L. Kirkland]

Pointers on a preference for reality from the superstitious, science-suppressing side of the aisle?

[rloquitur]

You have no idea who I am or what I believe. My guess is that I know a lot more about science than you do.

[mydisplayname]

Speaking of Saturday Night Live, it is impossible to discuss Title IX without mentioning "tennis without balls." ( see https://www.youtube.com/watch?v=8CvYBx0qEbk ).

Humor aside, it is remarkable that our reaction to Title IX comes decades after enactment and largely as a result of potential impacts known at the time of enactment: in this respect, Title IX is similar to Section 230. Congressional willingness to take action -- and to leave future action to others -- is interesting.

[Gasman]

Title IX may grant a sports exception.
But what then is the exception for sex segregated chess?

[David Nieporent]

Is chess an official college sport?

I do think it's weird that sex segregated chess exists in any context, but if it's not a school program it isn't covered by Title IX.

[River]

Many colleges have quidditch teams. Yes, it is a real sport, and just like in the books/movies, it is a co-ed sport. The rules of quidditch have requirements about how many players of a gender may be on the pitch at any time, so quidditch teams have to have people of multiple genders on them. Are you saying that every school with a quidditch team is violating Title IX?

[benji]

Are those operated by the school?

[River]

What does "operated" mean in this context? Certainly they are using the schools' fields for practice and trademarks for identification. The Whomping Wahoos and Jefferson's Army, for example, present themselves as the University of Virginia's quidditch teams.