Thursday, September 7, 2017
Nancy Leong & Emily Bartlett, Sex Segregation in Sports as a Public Health Issue
This Article adds a critical yet previously unaddressed dimension to the growing debate about the merits of sex segregation in sports by approaching sex segregation in sports as a public health issue. Participation in sports has consequences for women’s health, ranging from physical fitness to disease prevention to self-esteem to mental wellness to eating disorders. Critically, sex segregation in sports both reduces women’s participation in sports and changes the nature of the sports in which women participate, both of which have implications for the myriad health issues we discuss. The Article argues that analysis under the Equal Protection clause of governmentally-imposed sex-segregation must incorporate these consequences. Even where the government has plausible reasons for segregating sports by sex, those reasons may not be sufficient to survive intermediate scrutiny when the health issues are taken into account. The Article does not argue that sports should never be segregated by sex. Rather, it argues that the correct analysis must take into account all the relevant considerations, including those affecting health.
See also a prior post The Case Against Segregated Women's Sports
Monday, August 7, 2017
The N.F.L.’s Domestic Violence Policy: Revealing the Limits of an Internalities Approach to Domestic Violence
From Guest blogger, Jamie Abrams:
The National Football League’s (NFL’s) response to domestic violence provides a good example of the limits of internalities and the expansive and transformative power of externalities to apply a framework introduced in my last blog entry. In August 2014, the NFL Commissioner Roger Goodell announced a new Personal Conduct Policy. The policy was enacted after a high profile case of domestic abuse involving Ray Rice and his then-fiancée. Commissioner Goodell faced harsh criticism for allegations against him ranging from giving Rice an inappropriately light punishment to attempting to cover up the scandal by ignoring the existence of the security camera footage until the media released it. The revised policy stated that assault, battery, domestic violence or sexual assault involving physical force would be subject to a suspension of six games without pay for the first offense. The suspension would apply regardless of whether the player was formally charged. A second qualifying offense would lead to a lifetime ban from professional football. The NFL sought to ensure a “fair and consistent process for player and employee discipline” that would “set a higher standard.”
The NFL’s response, however, rested entirely on internalities. It depended on the victim coming forward to report the allegations of assault. It added an additional punitive and professional outcome to the existing criminal and civil consequences. In its application, the policy only raised the stakes for the victim in coming forward to report domestic violence against prominent athletes. This approach is inherently limited in its efficacy and insulates the NFL (which is a proxy for the state in this example) from accountability.
When understood in the context of externalities and broader political framings, the NFL could have dramatically reframed its approach in actually using its power as the NFL to change behaviors. The culture of the NFL could have been more closely examined to see the ways in which it acts as a provoker of domestic violence and the ways in which it could better prevent domestic violence. For example, in a highly masculine environment, might the publicity, threatened job loss, and income loss embedded in the NFL policy – particularly when initiated by the victim – actually exacerbate the risk of domestic violence? Might the NFL work to change its culture of masculinity in ways that effectively address the medical, social, and statistical risks of domestic violence that are unique to NFL culture?
Expanding the lens to include externalities offers an insightful contrast to consider what might be missing from an internalities approach. It reveals how the NFL camaraderie and the team atmosphere of the NFL might be leveraged to create positive peer associations and stronger cultural values and beliefs about healthy relationships. It reveals how the NFL might also provide more support for its players who are prior victims of abuse or witnesses of abuse or hold other risk factors. With the power and resources of the NFL expanded to an externalities approach, perhaps stronger lasting change could be achieved.
Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism
Monday, February 27, 2017
Nancy Leong, Against Women's Sports
This Article challenges the longstanding assumption that sports should be segregated by sex. Imposing sex segregation on sports is problematic for many reasons. It reflects and reinforces a long-disproven binary view of both sex and gender. It communicates that women are physically unable to compete against men, even though research indicates considerable variation among individual athletes and different sports, and further reveals that attributes other than sex are more important determinants of athletic ability. It reinforces unfounded gender stereotypes that harm both women and men. And sex segregation uncritically prioritizes athletic activities involving strengths typically associated with male bodies, without forcing us to ask why we view these strengths as the most important in the first place.
Sex segregation should not be the default in sports. Rather, if the entity that regulates a sport believes the sport should be segregated by sex, that entity should meet a burden equivalent to intermediate scrutiny by articulating why sex segregation is substantially related to an important interest. If the regulatory entity is governmental, then relevant constitutional provisions and federal laws, including the Equal Protection Clause and Title IX, already reflect this obligation. And even when the regulatory entity is private, a test analogous to intermediate scrutiny should be required to justify sex segregation as a matter of policy.
The Article does not claim that we should do away with all sex segregation in sports. Indeed, at times sex segregation is likely the best choice. But we should think carefully and critically about when and why we engage in such segregation. A thoughtful reexamination of the sex segregation norm we have too long taken for granted will improve sports for everyone.
Thursday, January 19, 2017
Erin Buzuvis, Hormone Check: Critique of Olympic Rules on Sex and Gender, 31 Wis.J. Gender & Law 29 (2016)
Abstract:Most sports, including all Olympic sports, are divided into two categories: men's and women's. This Article first presents a history of gender testing in Olympic and international sports to illustrate why past attempts to define eligibility for women's sports have proven unfair to women with intersex conditions. It then describes the shortcomings of the International Olympic Committee’s (IOC) first effort to articulate standards of eligibility for transgender athletes. In its second Part, this Article explains the more recent efforts of the IOC and the International Association of Athletics Federations (IAAF) to define eligibility for women's sports solely on the basis of testosterone. That effort is temporarily suspended by the Court of Arbitration for Sport as applied to hyperandrogenism, but, as Part Ill explains, on grounds that could permit the rule's reinstatement if a stronger justification is presented by the IAAF.
Finally, this Article evaluates the concept of a unified hormone rule that the IOC appears to propose. After considering the strengths and weakness of alternatives to such a rule, including genderless sports and a uniform gender identity rule, this Article proposes a hybrid rule that applies a hormone standard to transgender athletes and a gender identity standard for women. This final Part seeks to rationalize the different treatment of transgender and intersex women in ways that minimize the potential for such a rule to contribute negatively to society's understanding of both gender and athletic fairness.
Friday, August 19, 2016
The Justice Department announced today that it has filed a lawsuit alleging that New Mexico State University and its Board of Regents (NMSU) discriminated against a female former assistant track coach on the basis of sex by paying her less than similarly-situated men in violation of Title VII of the Civil Rights Act of 1964.
The Justice Department’s complaint was filed in the U.S. District Court for the District of New Mexico and alleges that, over the relevant periods of time, NMSU paid Meaghan Harkins thousands of dollars less per year than it paid to two male assistant track coaches with similar responsibilities, in violation of Title VII. Title VII is a federal statute that prohibits employment discrimination – including discrimination in compensation – on the basis of sex, race, color, national origin and religion.
“Women deserve the same salary and the same respect as their male colleagues with similar job duties,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division. “Lawsuits like this one demonstrate the Justice Department’s steadfast commitment to enforcing federal law to close the wage gap.”
Wednesday, August 17, 2016
Because there’s nothing like the Olympic Games to remind women that we are inferior by patronising female athletes for the world to see at every given opportunity. Here’s a comprehensive guide to the most sexist things that have happened thus far.
The commodification of the female body started before the athletes even arrived in Rio, with the host nation promising it to have the “sexiest ever” opening ceremony with “lots of nearly naked women doing the samba”, as opposed to celebrating the masses of world-class athletes that would be competing.
However, according to NBC’s chief marketing official John Miller, this is just catering to the games’ female audience who are “less interested in the result and more interested in the journey. It’s sort of like the ultimate reality show and miniseries wrapped into one”.
And NBC didn’t stop there. They’ve made demeaning comments about the USA women’s gymnastics team – after dominating the qualifications for the all round team medal, the ‘final five’ were discussing their performance, to which one commentator said “they might as well be standing in the middle of a mall”, attempting to take away the power of arguably the most formidable team in Olympic gymnastics history.
Feminism! Fairness! Equality! These are not concepts that affect women alone. But boy, do we get tired of carrying the expectation that they are. So a big “Well done, gentlemen,” to Andy Murray and Adam van Koeverden, two male athletes who this week took a stand against sexist assumptions.
Friday, August 5, 2016
The Olympics is a not a neutral event. Although Olympic organizers like to present the Games as an apolitical celebration, the way the Olympics are structured reflect the ideals of the elites who are most involved with organizing the event. As we approach the kickoff of the Summer Olympics in Rio de Janeiro on August 5, it’s worth examining gender dynamics in the Games’ history—particularly looking at how female athletes were largely excluded from the Olympics for years as well as the often-overlooked activism of women who fought to compete internationally.
In the early 1900s, the International Olympic Committee (IOC) only allowed women to compete in a handful of events. Only 22 women took part in the games held in 1900. But in the early 1900s a worldwide women’s movement was demanding political inclusion, with some success. As women gained the right to vote in Europe, Russia, and the United States, behind the scenes, some IOC members were quietly moving to expand women’s participation. But IOC President Baron Pierre de Coubertin was implacable, angling for the continued marginalization of women’s sports. After the 1912 Stockholm Games, he and many of his IOC colleagues believed “an Olympiad with females would be impractical, uninteresting, unaesthetic and improper.”
The 1928 Olympics in Amsterdam was the first time that doubled the number of female participants: almost 300 women took part in the Games, thanks largely to the inclusion of a small slate of women’s track and field events. However, citing medical “evidence,” the IOC ruled after the Amsterdam Games that the 800-meter run was too dangerous. In Amsterdam, after completing the race, a number of competitors fell to the turf to regain their strength. Anti-feminists pounced at the opportunity, arguing that women were too frail to run such distances, and quite remarkably their views won out. Women were not allowed to compete in the 800-meter run until the 1960 Olympics in Rome. Still, in 1928 women comprised about 10 percent of all Olympic athletes.
The Olympics echoed the gender and class structures of the time, but marginalization sparked an innovative response. In the 1920s, dissident athletes teamed up in solidarity with sympathetic supporters to organize alternative athletic competitions rooted in principles of equality. To challenge IOC sexism, women and their allies organized alternative games, a vital yet largely forgotten act of political dissent. Everywhere women looked, the Olympic cards were stacked against them. The IOC, as led by Coubertin, opposed women’s full participation, as the minutes of the 1914 IOC general session made clear: “No women to participate in track and field, but as before—allowed to participate in fencing and swimming.” Discrimination was baked into the master plans.
Enter Alice Milliat, a French athlete and activist whose bold actions scythed a path for women’s participation in the Games. After the exclusion of women from track and field in Antwerp, Milliat founded the Fédération Sportive Féminine Internationale (FSFI) on October 31, 1921. At its first meeting, the group voted to establish a Women’s Olympics as an alternative to the male-centric Games. In total four Women’s Games were staged, in 1922 (Paris), 1926 (Gothenburg, Sweden), 1930 (Prague), and 1934 (London), with participants coming mostly from North America, Western Europe, and Japan.
Monday, July 20, 2015
......never won the World Cup. Ever. They never even reached the finals.... or quarter finals. For this failure they were paid FOUR TIMES more than the US women's soccer team, which won the World Cup.....three times.
n Sunday, the U.S. Women’s National Team (USWNT) won the World Cup for the third time—more than any other team in women’s soccer history. For their efforts, the team will earn $2 million in prize money, up from $1 million in 2011. The money is awarded to the national federation, which usually distributes it between players and the organization itself. That’s not a bad sum—until it’s put into context. Last year, the U.S. men’s team was knocked out of the Round of 16 at the World Cup in Brazil—and pocketed $9 million for it. Germany, which went on to win the tournament, was awarded $35 million.
Wednesday, July 15, 2015
Serena Williams won another Wimbledon title this weekend. She is deservedly the most accomplished athlete--of any gender--for a sport.
Alas, there are discussions regarding her body image and what said discussions say about how we think about gender.
From the NYT:
Despite Williams’s success — a victory Saturday would give her 21 Grand Slam singles titles and her fourth in a row — body-image issues among female tennis players persist, compelling many players to avoid bulking up.
“It’s our decision to keep her as the smallest player in the top 10,” said Tomasz Wiktorowski, the coach of Agnieszka Radwanska, who is listed at 5 feet 8 and 123 pounds. “Because, first of all she’s a woman, and she wants to be a woman.”
For many, perceived ideal feminine body type can seem at odds with the best physique for tennis success. Andrea Petkovic, a German ranked 14th, said she particularly loathed seeing pictures of herself hitting two-handed backhands, when her arm muscles appear the most bulging.
“I just feel unfeminine,” she said. “I don’t know — it’s probably that I’m self-conscious about what people might say. It’s stupid, but it’s insecurities that every woman has, I think. I definitely have them and I’m not ashamed to admit it. I would love to be a confident player that is proud of her body. Women, when we grow up we’ve been judged more, our physicality is judged more, and it makes us self-conscious.”
Friday, July 3, 2015
Those keeping up with the Women's World Cup know the story. For those who don't, here it is:
It was a soccer player’s worst nightmare. With seconds left in a World Cup semifinal on Wednesday, Laura Bassett of England lunged for the ball and accidentally kicked it into her own net.
Seconds later, the whistle blew. Japan had won, 2-1, and Bassett and many other England players were left in tears. And members of the sometimes vicious British news media sharpened their pens and offered ... sympathy?
The most common word in British newspaper and website headlines on Thursday was “heartbreak,” and photos of the weeping Bassett dominated the coverage.
“England Women Have Done Their Country Proud,” The Times of London wrote. Even the tabloids were gentle, with The Mail grumbling that the better team had lost: “Own Goal Gives Japan Lucky Win Over Lionesses.”
The reaction to Bassett’s error was in sharp contrast to the aftermath of high-profile World Cup failures by the England men’s team over the years. In a 1998 round-of-16 game against Argentina, David Beckham kicked out at Diego Simeone and was given a red card. The ejection seemed a little harsh, but sympathy for the 23-year-old Beckham was not forthcoming after England lost the game on penalties. The Mirror’s headline was typical: “10 Heroic Lions, One Stupid Boy.”
The same thing--the own goal, as it is called in soccer--had befell Andres Escobar of Colombia in the 1994 World Cup. Known as the "Gentleman of the Field," Escobar was publicly ridiculed by his countrymen (and countrywomen) for his mistake. Eventually, someone murdered him.
(photo of Escobar)
This double standard for men versus women for what is acceptable in the realms of the masculine (like World Cup soccer) seems to me one more instance of the unique burdens shouldered by men.
Tuesday, June 9, 2015
Erin Buzuvis (Western New England), Athletic Compensation for Women Too? Title IX Implications of Northwestern and O'Bannon, 41 Journal of College and Univ. Law 297 (2015)
Abstract:The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive. As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and, second, that athletes are being exploited by the present system. Ultimately, the Author reframes the application of Title IX to athlete compensation by proposing two alternative outcomes: either college athletics departments could reform their programs by curtailing the ways in which they have become overly commercialized programs and thus avoid the application of antitrust and labor laws, or they could reform themselves by abandoning their connection to education and the subsidy that comes with it.
Monday, April 27, 2015
There are some obvious reasons not to be sympathetic to Bruce Jenner's coming out: for one, he lives with the Kardashians; for another, the coming out looks like a publicity ploy by an aging celebrity who had milked everything once of fame for his achievements in an obscure sport called the decathlon.
But then there was the response by his family, which was admirable:
“I am at peace with what he is and what he’s doing,” his mother, Esther Jenner, said in a separately filmed portion of the two-hour segment. “I never thought I could be more proud of Bruce when he reached his goal in 1976, but I’m more proud of him now.” Kim Kardashian tweeted, “Love is the courage to live the truest, best version of yourself. Bruce is love. I love you Bruce. #ProudDaughter.” (Jenner told Sawyer that he first came out to Kim, and that she once walked in on him in a dress.)
Seventeen-year-old Kylie Jenner, Jenner’s youngest child, tweeted, “Understandingly, this has been very hard for me. You will hear what I have to say when I’m ready to but this isn’t about me. I’m so proud of you, Dad. You are so brave. My beautiful Hero.” In this unconditional and unquestioning way, the Kardashian and Jenner clans are defining what it means to be a family today. They may be superficial, but their support for Bruce is notable for its candid demonstration of acceptance.
Tuesday, February 3, 2015
A California bill filed last week would require professional sports teams in the state to treat their cheerleaders as employees.
“NFL teams and their billionaire owners have used professional cheerleaders as part of the game day experience for decades,” Assemblywoman Lorena Gonzalez (D), the bill’s sponsor and a former collegiate cheerleader, said in a statement. “They have capitalized on their talents without providing even the most basic workplace protections like minimum wage.”
The bill, AB 202, would also cover overtime compensation and standards for working conditions. It comes after a class-action lawsuit was filed last year by two former cheerleaders for the Oakland Raiders who accused the team of violating labor laws, including withholding pay until the end of the season and paying less than $5 an hour. California’s minimum wage is currently $9 an hour.
Monday, February 2, 2015
But he did make a positive statement about gender identity. From a few days back was this article from the Guardian UK:
Andy Murray’s clash with Novak Djokovic in the final of the Australian Opentennis tournament is the fourth time he’s made it to the ultimate round in Melbourne. On the past three occasions he lost – and he is the favourite to do so again. But whatever the result, the 27-year-old Scotsman has already scored a historic victory – for women.
After his semi-final victory over the Czech number seven seed, Tomas Berdych, Murray made an impressive speech in which he paid tribute to his coach, Amélie Mauresmo, and hailed the progress of female coaches in a sport that can sometimes appear reluctant to leave its colourfully sexist past behind.
“A lot of people criticised me for working with [Mauresmo],” Murray told the cameras and a delighted crowd. “And I think so far this week, women can be very good coaches as well. Madison Keys, who reached the semis here and had her best tournament, is also coached by a woman – Lindsay Davenport. I see no reason why that can’t keep moving forward like that in the future.
“I’m very thankful for Amélie for doing it. It was, I would say, a brave choice for her to do it and hopefully I can repay her in a few days.”
Saturday, December 6, 2014
The Minnesota State High School League approved a new transgender-friendly policy for high school athletes on Thursday. The new rules will allow transgender students to play on sports teams consistent with the gender they identify with. In layman’s terms, this means those born genetically female, but who identify with the male gender can try out for male teams and vice versa. The policy will go into effect at the start of the 2015-16 athletic year
Tuesday, November 11, 2014
When the men's championship is played on real grass, but the women's championships are played are artificial turf with its higher risk of injury and harm to players.
See National Law Rev, Turf War: Female Soccer Stars Sue FIFA and the Canadian Soccer Association
More than 60 of the top female soccer players, including U.S. stars Abby Wambach and Alex Morgan, have brought a lawsuit against the Canadian Soccer Association and FIFA, the international governing body of football, asserting that the organizations’ decision to play the 2015 Women’s World Cup on artificial turf constitutes gender discrimination. A men’s World Cup has never been played on artificial turf and the men will play the 2018 and 2022 World Cup tournaments on grass.
Wednesday, October 8, 2014
A group of top women’s soccer players from across the world on Wednesday sued the Canadian Soccer Association and FIFA, the sport’s international governing body, alleging gender discrimination around the 2015 Women’s World Cup, which Canada will host in June. NBC Sports first reported the lawsuit, which top players, including American stars Abby Wambach and Alex Morgan, had threatened for months over FIFA and the CSA’s decision to hold the Women’s World Cup on artificial turf fields, a decision the players say makes the game more dangerous for them and would never happen for the men’s World Cup.
The lawsuit filed in Ontario by more than 40 international women’s players claims that the decision to hold the World Cup on turf is “inherently discriminatory” and violates Canadian human rights laws for three major reasons: that it changes the way the game is played, poses “unique and serious risks of injury,” and requires them to play on a “second-class surface.”
Thursday, September 25, 2014
NBA Commissioner Adam Silver said Monday his league will "take a fresh look" at its domestic violence procedures in the wake of the NFL's rash of incidents.
Silver said during a community service event in Staten Island that the league has been discussing with the NBA Players Association ways to further educate players and provide programs to them and their families.
"We learn from other leagues' experiences," Silver said. "We're studying everything that's been happening in the NFL. We're working with our players' association. We've been talking for several weeks and we're going to take a fresh look at everything we do."
Tuesday, September 16, 2014
After a week of unprecedented bad publicity, the NFL has hired four women to shape new policies on domestic violence and sexual assault.
The announcement was something of a mixed message, coming just moments before the Minnesota Vikings announced that Adrian Peterson, who was arrested Saturday for recklessly or negligently injuring a child, was cleared to play Sunday.
Commissioner Roger Goodell made the announcement in a letter to owners, writing that the goal is “to make a real difference on these and other issues.”
Anna Isaacson, currently a league vice-president of community relations and philanthropy, assumed the additional title of vice-president of social responsibility. She will oversee initiatives aimed at raising awareness about the issues and decreasing the instances of violence. Lisa Friel, Jane Randel and Rita Smith were hired as senior advisers because of their experience with the issues. Friel is the former head of sex-crimes prosecution for the Manhattan district attorney; Randel is a co-founder of NO MORE, an advocacy group focusing on domestic violence and sexual assault; and Smith is former executive director of the National Coalition Against Domestic Violence.
Tuesday, September 9, 2014
The two Raiderette cheerleaders who revolted against the team this year—suing the Oakland Raiders for paying them less than minimum wage, withholding paychecks until the end of the season, and never reimbursing them for business expenses—have declared victory. Lacy T. and Sarah G., who filed a class-action suit on behalf of their fellow Raiderettes this spring, have reached a settlement with the NFL franchise. The team will pay out a total of $1.25 million to 90 women who cheered between 2010 and 2013. That translates to an average $6,000 payout per cheerleader per season for the first three seasons covered by the suit, and an average of $2,500 each for the final season. (Right before Lacy’s lawsuit hit, the Raiders unexpectedly padded the 2013 cheerleaders’ checks with additional cash). According to Sharon Vinick, lawyer for the Raiderettes, future Raider cheerleaders will be paid minimum wage for all hours worked, receive checks every two weeks, and be reimbursed for business expenses they incur in the course of the job.
“We are excited that the Raiders have decided to pay their current cheerleaders in accordance with the law,” Sarah G. said in a statement through her attorney. “This was our goal and I am pleased to say I was a part of an organization whose management decided to make these changes. Now we can just go back to dancing, being respected and taking down the Niners when they try to step onto our field!”
Is the settlement fair? $1.25 million sure sounds like a big number, and for many current and former Raiderettes, the split ain’t bad: The women who cheered for all four seasons covered by the suit could stand to receive checks for more than $20,000. (As for the naysaying cheerleaders who complained that Lacy T. and Sarah G. were making them look bad by speaking up: If they fail to cash their checks, the money will be donated to Girls Inc., an Alameda County nonprofit that provides enrichment activities for local girls.)