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.