Title IX and the Gender Binary: Trajectories of Equality

Prior to 1970, women were severely underrepresented in high school and college math, science, and business courses, and were almost invisible in high school technical courses.1 Even professional schools barred access to women for all programs but teaching, nursing, social work, and library science through quotas – and even if women did enter male-dominated programs, this exposed them to sexual harassment.2 The 1970s women’s movement focussed on the problems of restricted access to education, notably in business, medical schools, and law schools, as barriers to equal access to better jobs and equal pay.3

In response to these social realities, Title IX of the Education Amendments was enacted by Congress and signed in to law in 1972 by Richard Nixon.4 The law has its roots in equality: “Title IX is a law passed in 1972 that requires gender equity for boys and girls in every educational program that receives federal funding.”5

Senator Birch Bayh, who co-authored the original Title IX legislation, runs with Title IX athletes at Purdue University in the 1970s.

Title IX is a law designed to address 10 key areas, including: access to higher education, career education, education for pregnant and parenting students, employment, learning environment, math and science, sexual harassment, standardized testing, technology, and athletics.6 Title IX has been called a “living, breathing law,” because of the number of changes it has absorbed, including over 20 proposed amendments and Supreme Court cases in its 35-year history.7 In 1980, the Department of Education was established and empowered to oversee Title IX through the Office for Civil Rights.8 According to some observers, though, thousands of schools within the United States are not in compliance with Title IX.9

In theory, Title IX protects both men and women; however, supporting women’s programs through Title IX has repercussions for men’s programs... The law meant to ensure substantive equality, in fact, has had the unintended effect of killing off men’s sports teams.

But the US government has been committed to maintaining and revising Title IX standards. For example, when Brown University argued in 1996 that it did not violate Title IX because women are less interested in sports than men (a popular argument made by Title IX infringers), the American courts rejected the argument, upholding Title IX.10 Similarly, though Title IX was narrowed through amendments in 2005, the government displayed commitment to the law by rescinding the 2005 amendments in 2010.1112

Lastly, in June 2002, the government established the Commission on Opportunities in Athletics to "…collect information, analyze issues and obtain broad public input directed at improving the application of current Federal standards for measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX.”13 The Commission issues written reports recommending standard revisions and steps that can be taken to improve the effectiveness of Title IX.14

According to some observers Title IX has had an impact on the cultural institute of sport, catalyzing change regarding the ideal of the perfect American female.15 Girls and women are no longer discouraged about participation in sports: “Girls and women see themselves being accepted as strong, effective, competitive, and skilled athletes…In fact, their peer group now assigns high status to the role of female athlete, and families are fully supportive of girls’ sports participation.”16 Furthermore, women who participated in sports as girls display increased self-esteem, confidence, and pride in themselves both physically and socially as compared to non-athletes.17 Moreover, participation in sports correlates to higher likelihood of academic success for girls in high school as compared to their peers.18

The problem with reinforcing the notion of gender as a binary is twofold: it is archaic and unscientific, and it reinforces an unhealthy ideology.... By analyzing the binary through a queer or anti-essential approach to participatory parity, male-dominated and sex-segregated sports are seen as normalizing and perpetuating the marginalization of non-males.

Participation rates for American female athletes have also increased significantly following Title IX’s implementation. In 1998, 1 in 3 high school girls in the United States played varsity sports (compared to 1 in 2 boys), up from 1 in 27 in 1972.19 Since the implementation of Title IX, there has been an increase in female participation in Olympic, college, and high school sports, and women participate in sports recreationally at a high rate: “…there are now more than 55 million women who participate in recreational sports and fitness activities regularly. Women represent more than 55% of all volleyball players, 43% of all runners, and 41% of all soccer players.”20

American women’s involvement in sports has been more diverse than their male counterparts (who primarily participate in football, baseball, basketball, and ice hockey), and female sports participation is on the rise across all age brackets and in all sports – especially in team sports, which women were traditionally discouraged from pursuing.21 Women are also likely to continue participating in greater numbers: “…most experts project another doubling of female participation rates at the high school and college levels to match boys’ sports participation rates within the next several decades. ”22 All in all, Title IX has had positive effects for female athletes.

Unintended Consequences

a. Cuts to Men’s Programs

In theory, Title IX protects both men and women; however, supporting women’s programs through Title IX has repercussions for men’s programs. Critics have noted that: “The damage done to men’s sports is an ugly side effect of a law meant to bring positive change for female athletes.”23 The law meant to ensure substantive equality, in fact, has had the unintended effect of killing off men’s sports teams: “Some male sports are going extinct. The number of Division 1 men's gymnastics teams shrunk from 59 to 17 between 1981 and 2004; wrestling teams declined from 146 to 86; and even the number of Division 1A football teams…fell from 137 to 117.”24 Substantive equality in athletics, it seems, is secured not by boosting overall sports participation, but by cutting men’s programs.

This perception can be explained by examining Title IX’s history. Compliance under Title IX hinges on a three-prong analysis (on a program-wide basis):

1. Providing athletic participation opportunities that are substantially proportionate to undergraduate student enrolment;
2. Demonstrating a continual expansion of athletic opportunities for the underrepresented sex;
3. Demonstrating a full and effective accommodation of the interest and ability of the underrepresented sex.25

To be compliant, teams must meet one of the prongs. However, historically, the first part of the test has generated controversy as schools eliminated men’s sports to comply with what was perceived as the US Department of Education Office for Civil Rights’ (OCR’s) chief requirement: “…Congress held hearings in 1995 to review the status of OCR enforcement. Schools claimed that the substantial proportionality test was in reality the only standard by which OCR judged whether their program was Title IX compliant.”26

In response, the OCR Assistant Secretary issued the January 1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, stating that: “…there is still confusion about the elimination and capping of men’s teams in the context of Title IX compliance. The rules here are straightforward. An institution can choose to eliminate or cap teams as a way of complying with part one of the three-part test.”27 The problem, then, isn’t that Title IX specifically provides discrimination against men; rather, one of the paths to compliance under the three-part test insulates schools from lawsuits if they can show that each gender has participation levels that are substantially proportionate, which is often accomplished through cutting men’s programs.2829

One reason for schools adopting this strategy could be that women are starting to outnumber men on college campuses. Women earn as much as 57% of bachelor’s degrees, and rather than boosting the number of overall programs, schools cut costs by cutting men’s programs to achieve proportionality.30 An analysis of NCAA data demonstrates the scope of the problem: “In brief, the average number of male teams offered by an NCAA Division I institution fell from 10.2 in 1981-82 to 8.9 in 2004-2005 (a decrease of 14 percent) while the average number of women's teams rose from 7.3 to 10.2 (an increase of 40 percent).”31

While courts have rejected the notion that Title IX discriminates against men, critics sympathize with the predicament of men’s sports programs: “…the frustration of men's sports advocates is somewhat understandable. They've watched too many top men's programs die – including…swimming at UCLA – while schools have rushed to provide new opportunities to women in sports such as rowing...”32 In the end, it seems that schools have taken advantage of the OCR Secretary’s invitation to eliminate athletic programs.33 Thus, while the promotion of increased athletic programming has been supported on the one hand (for women), on the other, men’s athletic teams, especially in non-revenue generating or Olympic sports, have been cut back considerably.34 In the future, if Title IX is to truly support equality, it should ensure that existing and established programs are protected from the chopping block.

b. Trading on Sex

Title IX, though, also creates a particular set of problems for women regarding visibility and sexualization of athletes. Sports traditionally reward male athletes by celebrating their superiority and disproportionately rewarding them.35 Whether intentionally or not, sports uphold men as superior to women and other gender groups: “The fact that the names of professional women’s sports associations need to be specifically gendered while men’s remain unmarked (for example, Ladies Professional Golf Association vs. Professional Golf Association…) is a powerful example of the cultural assumption that sport is a male realm.”36

The problem of visibility of female sports is notorious. In 2004, soccer’s most senior administrator provided a solution. Sepp Blatter, the President of the Fédération Internationale de Football Association (FIFA), said women should dress more scantily in order to increase the popularity of women’s soccer: "Let the women play in more feminine clothes like they do in volleyball," he said.37 "They could, for example, have tighter shorts. Female players are pretty, if you excuse me for saying so, and they already have some different rules to men - such as playing with a lighter ball.

That decision was taken to create a more female aesthetic, so why not do it in fashion?"38 Interestingly, as Pauline Cope (goalkeeper for England) noted, "He doesn't know what he is talking about… We don't use a lighter ball for one thing, and to say we should play football in hotpants is plain ridiculous. It's completely irresponsible for a man in a powerful position to make comments like this."39 Blatter was re-elected as President of FIFA in 2007 and 2011.

Female athletes’ beauty and sex appeal overshadow their on-field endeavours, so they are depicted in suggestive ways.40 Writers in the Harvard Law Review have suggested that the American public has yet to adjust to the ways that female athletes challenge traditional notions of femininity and masculinity, and that the media have therefore used sexualisation to reflect and cater to the desires of their audience.41 Moreover, homophobia has a different effect on female athletes than their male counterparts: “Homophobia equates female athletic accomplishment with lesbianism. Thus, for men, the higher one’s achievements in the sporting realm, the less suspicion there exists regarding homosexuality. In contrast, the more success a woman achieves in sport…the more suspect her sexuality becomes…”42

Female athletes, though, often accept the media’s attention.43 Because the public does not consider women’s sports to be on par with men’s sports, female athletes often accept their sexualisation as a means to publicity and funding.44 Sadly, by publicizing female athletes as a) perfect looking, and b) at the top of their game athletically, the media produces a vision of unattainable success that ultimately can diminish the self-esteem of female viewers, particularly younger athletes.45 Female viewers may also peg the publicized athletes as “sell-outs,” undermining support and popularity of women’s sports.46

The above issues also have a detrimental impact on transgender athletes. If the current male/female split in athletics is divided along the lines of athletic prowess and sexuality, how will there be space for transgender athletes? As discussed above, female athletes have had a difficult time accessing participatory equality, and if bigotry is the underlying reason, then what chance would transgender athletes have of staking out a similar claim?

c. Gender Binary

Questions of gender equality under Title IX have mainly focused on equality between men and women. This has centered around two questions: “Equality is one of the underpinnings of American jurisprudence. The two overriding questions affecting student-athletes are: (1) may separate athletic programs be offered for men and women, based on their sex; and (2) if so, must ‘equal’ programs be provided…”47 However, this vision of participatory equality skates over other conceptions of gender: “The ideology of the two sex system itself is centrally implicated in gender hierarchy and supports sexism, homophobia, and transphobia. The sport nexus normalizes and reinforces the ideology of the two sex system…”48 By analyzing the binary through a queer or anti-essential approach to participatory parity, male-dominated and sex-segregated sports are seen as normalizing and perpetuating marginalization of non-males.49

Critics have argued that mainstream media insulates sports from critical examination.50 This is accomplished in two ways: “…by trivializing it – as merely entertainment, recreation or as a hobby for spectators – or valorising it – as a grand expression of so-called national or universal values…”51 While the role of the media is discussed in academic literature in terms of how it valorises masculinity, there is not so much discussion of challenging the sex segregated structure of sport.52 The media, though, is actually having a hand in reinforcing the sports institution’s role as a normaliser of gender binaries.53

The problem with reinforcing the notion of gender as a binary is twofold: it is i) archaic and unscientific, and ii) reinforces an unhealthy ideology. This is illustrated in the context of sex testing to fix categories of male and female bodies, where science has failed to clearly demarcate what is male and what is female.54 Further, the male/female gender split is not natural but a social construct.55 Reinforcing this inaccurate way of thinking causes painful consequences for athletes who do not fit neatly in to one of the two categories: measuring bodily capacity and limitations highlights sport’s role in entrenching social constructs of what a “natural” gender is.56 For example, for the first openly transgender NCAA Division I athlete, Kye Allums, gender categorization rules meant that although he identified as a man, since he hadn’t undergone treatment he could only compete as a woman; the ensuing media attention and examination of Allums’ life resulted in a suicide attempt.5758

Recently, the issue of equal treatment of transgender athletes has gained traction on the international stage. Policies regarding transsexual athletes, for example, are changing; the International Olympic Committee created a policy in 2003 to allow surgically and hormonally transitioned transsexual athletes to compete 2 years following their “full transition.”59 Since the IOC adopted the policy, other organizations have followed suit, adopting policies towards transgender athletes of their own, for example USA Track and Field.60 These changes in attitudes towards transgender athletes will result in inclusion on the international stage; however, this participation may ultimately rest on an athlete's willingness to undergo surgical manipulation - thus undermining equality.

The NCAA has a different standard – trans males (female to male) student-athletes receiving testosterone treatment can compete on a men’s team or a mixed team, whereas trans females (male to female) student-athletes taking testosterone suppression medication can compete on men’s teams or mixed teams, but cannot compete on a women’s team until one calendar year of treatment is reached.61 Though the NCAA would say that this policy is in line with core values of commitment to diversity, inclusion, and gender equity, it seems intuitively unequal that transgender athletes will face different rules depending on which gender they are transitioning to.62 The NCAA, however, states that the policy allows transgender athletes to participate while maintaining a balance of competitive equity.63Continued on Next Page »