Friday, April 2, 2021
March Madness Could Spark a Title IX Reckoning, The Atlantic
The gender inequality in college sports runs far deeper than a few social-media posts can reveal. As Cheryl Cooky, a professor studying sport sociology at Purdue University, told me in a recent phone conversation: “The problem is not the weight room itself, but what kind of groundwork has been laid that produced this moment where the weight-room controversy occurred. Nobody looked at that space and said, ‘Something’s not right here.’ It took someone posting on social media to bring attention to the issue.”
Although the NCAA is a nonprofit that organizes athletic tournaments for college athletes, it acts more like a professional-sports organization. And the deeply entrenched sexism in intercollegiate sports means that male athletes are treated with red-carpet fanfare, and women are treated as second-class citizens. That swag-bag gear, forinstance? The women’s paraphernalia doesn’t say march madness, because the NCAA refuses to use the name of its highly marketable men’s tournament to refer to the parallel women’s tournament, which is held at the same time. If you download the NCAA March Madness Live app, you might be under the impression that the women’s tournament doesn’t exist at all—no women’s schedule, bracket, or game highlights are available. This is the first year in which the entirety of the women’s tournament will be shown on national television, whereas the men’s tournament has been taking over airwaves for decades. And still, Sunday’s women’s championship game will be available only on ESPN, while the men’s championship game will air on CBS, a national broadcast network, making their game more widely available.
Broadcast and advertising deals are private-market decisions. But these issues involve student athletes, who are playing for schools beholden to Title IX—the statute that prohibits gender inequality at any educational institution receiving federal financial assistance (basically every school in the NCAA, via student financial aid). So is it legal that the NCAA calls its women’s tournament by a different (and far less marketable) name? Or that the broadcast deals it strikes for the men’s tournament are so much larger than those for the women’s? According to the Supreme Court’s decision in NCAA v. Smith, it is.
In 1999, the Court ruled that, although the NCAA runs sports tournaments for schools—and collects money from those schools—the league itself does not receive direct funds from the federal government. But Neena Chaudhry, the general counsel and senior adviser for education at the National Women’s Law Center, says a legal argument could be made that the NCAA should be held to Title IX when it comes to these tournaments. Chaudhry, who worked on NCAA v. Smith, has successfully argued at the state level that high schools have essentially given sports leagues controlling authority over their federally funded athletic programs.
. . . .
Tuesday, May 5, 2020
All you have to know about Klausner’s ruling is that it leads with and lingers on the men’s national soccer team and what it doesn’t get. You stare at the page, mouth agape, wondering whether your eyes are seeing right. Why, you wonder, is Klausner going on about men? Where are the women? Where are Megan Rapinoe and Carli Lloyd?
Ahh there they are. On Page 3. Halfway down.
As you read on, you realize that Klausner has not really ruled here. He has just stewed. For 32 pages he mulls with an ill-concealed agenda over the nerve these women had to ask for things. Things the men don’t have. Things that have nothing to do with the case.
If you had to summarize the ruling in a sentence, it would be this: The real victims are men.***
Klausner has gone one better than U.S. Soccer officials, who at least are up front in their sexist argument that the women’s game is inferior and so players aren’t entitled to more. Their counsel literally argued “market realities are such that the women do not deserve equal pay.” Former chief Carlos Cordeiro flatly admitted in 2017 in a public statement, “our female players have not been treated equally.”
Which provokes Klausner’s most offensive contortion of all. Just because U.S. Soccer officials admitted that women players are paid less “does not make it true,” he writes.
See also Wash Post, Judge Rules Against U.S. Women's Soccer Team in Equal Pay Dispute
In a ruling delivered late Friday, Klausner sided with the players’ employer, the U.S. Soccer Federation, which argued the claim of unequal pay based on gender discrimination should be dismissed.Klausner ruled that the players’ additional claims of unequal treatment in terms of travel, medical staff and training equipment can go forward. A trial is scheduled to begin on those questions June 16
Monday, February 3, 2020
Doriane Lambelet Coleman, Michael J. Joyner & Donna Lopiano, "Re-Affirming the Value of the Sports Exception to Title IX’s General Non-Discrimination Rule, Duke J. Gender Law & Policy (forthcoming)
Title IX expresses society’s commitment to sex equality in educational settings. The structure of the statute’s regulatory scheme makes clear that the goal is sex equality, not sex neutrality. Notwithstanding the general preference for sex neutral measures, the sports exception to Title IX’s general nondiscrimination rule has long been one of the statute’s most popular features. The challenge in the beginning of the Title IX era was to get educational institutions to conceive of and equally to support females as athletes. We continue to fight for equal support, but as Title IX concludes its first semi-centennial, we no longer struggle as we did in the beginning with the basic concept of females as athletes, or of female sport as a high value social good.
The challenge as we move into Title IX’s second semi-centennial is to get institutions to address the remaining disparities in their treatment of female athletes and female sport at the same time as we enter a new era in which we are being asked to imagine that “female” includes individuals of both sexes so long as they identify as women and girls. This ask reflects the intellectual choice to conceive of sex as a social construct rather than as a fact of biology tied to reproduction, and also the strategic choice of trans rights advocates to work toward law reform that would disallow any distinctions on the basis of sex. The problem is that female sport is by design and for good reasons a reproductive sex classification. These reasons have nothing to do with transphobia and everything to do with the performance gap that emerges from the onset of male puberty. Whether one is trans or not, if one is in sport and cares about sex equality, this physical phenomenon is undeniably relevant. Changing how we define “female” so that it includes individuals of both sexes, and then disallowing any distinctions among them on the basis of sex, is by definition and in effect a rejection of Title IX’s equality goals. Those who push for these changes are committed to sex neutrality, not sex equality.
The goals of this paper are to provide the legal, factual, and normative background necessary to evaluate the merits of this challenge to the sports exception to Title IX’s general nondiscrimination rule, and then to present the case for re-affirming the exception in a form that is appropriate for this next period of its history. It proceeds in three parts: Part I describes the legal history of Title IX’s sports exception, its goals, and the current state of the legal doctrine. Part II explains its scientific basis and rationale. Part III sets out the best case for and against affirming the commitment to sex equality in education-based sport, and then presents our argument for resolving the collision of interests at issue. The paper concludes that the original Title IX commitment to sex equality continues to do important work and should not to be abandoned, including in the sports space where equality requires not only recognizing but also celebrating physical sex differences. Including trans people within this design is difficult by definition, but policymakers should accept the challenge.
Tuesday, October 1, 2019
Melissa Breger, Margery Holman & Michelle Guerrero, Re-Norming Sport for Inclusivity: How the Sport Community Has the Potential to Change a Toxic Culture of Harassment and Abuse"
Journal of Clinical Sport Psychology, 2019, 13, 274–289.
Traditional sport norms and gender-based biases that are prevalent in the sport environment, both explicit and implicit, have contributed to a culture where sexual harassment and abuse is commonplace. This article examines how sport tolerates the development of this culture, and more importantly, how practices and policies can be utilized to transform sport’s culture to one that is inclusive and safe. Reform is needed in attitudes and norms towards gender bias and sexual violence that primarily, but not exclusively, targets girls and women in sport and is perpetrated by boys and men. The application of various theories from psychology is recommended as one strategy to rid sport of both a culture of misogyny and of those who resist change to achieve this objective.
We are, once again, in the middle of a battle over the legitimacy of the administrative state. An increasingly vocal band of scholars criticizes administrative agencies as unaccountable, elitist, captured, and implementing bad policy. The more populist elements of the Trump Administration’s rhetoric have taken this critique to a broader audience, to great political effect. Though the picture is complex, the Roberts Court has appeared sympathetic to important aspects of the critique. Agencies enforcing civil rights laws — and particularly the Department of Education’s Office for Civil Rights (OCR) — have been a principal target of the critics of the administrative state.
With The Transformation of Title IX, R. Shep Melnick steps into this fight — and he takes the side of those who find OCR’s actions illegitimate. Melnick focuses particularly on three especially controversial contexts in which the courts and OCR have applied the statute: intercollegiate athletics, campus sexual harassment and assault, and the treatment of transgender students in elementary and secondary schools. He argues that OCR and the courts have, through a process of “institutional leapfrogging,” steadily adopted more and more intrusive rules governing educational entities. He contends that these rules are highly contestable and neither specifically required by the statutory text nor envisioned by the statute’s drafters. But, he argues, the leapfrogging process — in which the agency pushes forward, then the courts go a bit farther than the agency, then the agency goes even a bit farther, and so on — has enabled these massive innovations in the law to fly under the radar and evade democratic checks or debate.
This piece reviews The Transformation of Title IX. The book offers an important take on some issues of high public salience. It reflects a detailed immersion in the operations of OCR, as well as a strong understanding of the legal-doctrinal issues. But the book’s thesis is fundamentally misguided. OCR has not subverted or evaded democracy. Rather, the agency has served as a catalyst for democratic debate, a forum in which that debate has played out, and an implementer of the will of the people. The Title IX experience rather supports the claim made by some scholars that administrative agencies can be a key locus of democratic deliberation over the scope of basic rights.
Monday, September 30, 2019
Tracing the History of the Equal Pay Dispute Between the US Women's National Soccer Team and the Soccer Federation
The United States Women’s National Soccer Team has dominated the sport since the inaugural Women’s World Cup in 1991. Despite its success on the field, however, the team has had a contentious relationship over the last three decades with the United States Soccer Federation, the sport’s governing body in the United States. The ongoing discord between the Women’s National Team and the U.S. Soccer Federation culminated in March 2019, when twenty-eight players from the team filed a lawsuit alleging that the Federation had violated the Equal Pay Act by paying them less than it paid members of the Men’s National Team.
This Article traces the history of strife between the Women’s National Team and the U.S. Soccer Federation. The troubled relationship has resulted from the mismatch between the team’s superior results but lower pay compared to the Men’s National Team. This mismatch has its roots in competing legal and societal forces. On the one hand, Title IX caused an explosion in the participation rate for women’s soccer in the United States, which has led to the Women’s National Team’s unprecedented success. On the other hand, with the exception of the World Cup finals every four years, the viewership market for women’s soccer remains much smaller than the market for men’s soccer, which has resulted in lower revenue generation by the Women’s National Team compared to the far less successful Men’s National Team.
After explaining the history and cause of the turmoil between the team and the U.S. Soccer Federation, the Article analyzes the merits of the players’ Equal Pay Act claim. The Article contends that the Federation has the stronger position on the merits of the claim, but further argues that the Federation should renegotiate the Women’s National Team’s collective bargaining agreement in light of the Federation’s mission of “gender equality.” The Article proposes specific principles that might guide that renegotiation and lead to a successful resolution of the long-standing tensions between the Women’s National Team and the U.S. Soccer Federation.
Thursday, July 11, 2019
National Review, US Women's Soccer: Equal Pay Lawsuit Not a Simple Case
The team’s lawsuit alleging pay discrimination against the U.S. Soccer Federation has done much to define its identity. A nearly perfect run through the World Cup has been widely interpreted as vindication of the merits of its case, so much so that fans chanted “equal pay” after the U.S. victory in the final over the Netherlands and booed the head of FIFA, the sponsor of the World Cup, during the trophy ceremony.
It is true that the American women, who sweat and practice as much as their male compatriots (perhaps more, given their superior results), don’t make as much. But the women’s game isn’t as popular or profitable, which fundamentally drives pay.
The total prize money for the women’s 2019 World Cup was $30 million, with the champion taking away about $4 million. The total prize money for the men’s 2018 World Cup was $400 million, with the champions winning $38 million.
The 28 players on the women’s national team sued the federation in March, alleging that they are paid less than their counterparts on the US men’s national team even though they win more games and bring in more money. According to the suit, a top-tier women’s player could earn as little as 38 percent of what a top-tier men’s player makes in a year, a gap of $164,320. That gap closed a bit with a new collective bargaining agreement in 2017, but the players still say they’re paid unfairly.
“These athletes generate more revenue and garner higher TV ratings but get paid less simply because they are women,” said Molly Levinson, a spokesperson for the team in their lawsuit, in a statement to Vox. “It is time for the Federation to correct this disparity once and for all.”
The soccer federation agrees that the men’s and women’s teams are not paid the same but has said it’s impossible to compare the teams because their pay structures are so different. The two groups have agreed to mediation in an effort to resolve the suit out of court.
Gender Law Prof Blog, US Women's Soccer Team Sues US Soccer for Gender Discrimination (March 2019)
Thursday, March 14, 2019
Twenty-eight members of the world champion United States women’s soccer team significantly escalated their long-running fight with the country’s soccer federation over pay equity and working conditions, filing a gender discrimination lawsuit on Friday.
The suit, in United States District Court in Los Angeles, comes only three months before the team will begin defense of its Women’s World Cup title at this summer’s tournament in France. In their filing and a statement released by the team, the 28 players described “institutionalized gender discrimination” that they say has existed for years.
The discrimination, the athletes said, affects not only their paychecks but also where they play and how often, how they train, the medical treatment and coaching they receive, and even how they travel to matches.***
The bulk of the suit mirrors many of the issues raised in a wage discrimination complaint filed by five United States players with the Equal Employment Opportunity Commission in 2016. Frustrated by a lack of progress on that complaint after nearly three years of inaction, the players received permission from the federal agency in February to sue instead. (One of the players on the original complaint, the former goalkeeper Hope Solo, filed her own gender discrimination lawsuit against U.S. Soccer in August.)
The suit offers a new forum but also new hurdles. The players, represented by Jeffrey Kessler, who has been involved in labor fights in nearly every major American sport, will have to prove not only that their team and the men’s squad do the same work, but also overcome questions about the differences in their pay structures and their negotiated collective bargaining agreements. And the C.B.A. has already left them without one bit of leverage: The players cannot strike to press their case at least until it expires at the end of 2021.
But to experts in gender discrimination and Title IX cases, the argument they are making is familiar.
“These are the same kinds of arguments and claims that we still see at every level of education for women and girls, from K through 12 to college,” said Neena Chaudhry, the general counsel of the National Women’s Law Center in Washington. “It’s unfortunately a sad continuation of the way that women and girls in sports are treated in the U.S.”
Wednesday, June 27, 2018
Deborah Epstein has spent her professional life fighting for victims of domestic violence. But protecting such victims is also what Epstein says led her to step down from a commission meant to tackle the issue of domestic violence in the National Football League.
The NFL's Players Association Commission on Violence Prevention was formed after several NFL players were accused of violence against their domestic partners, including Ray Rice of the Baltimore Ravens, who knocked his fiancée unconscious in an elevator.
In 2014, Epstein, director of the Georgetown University Law Center's Domestic Violence Clinic, was asked to serve on the commission. She and research psychologist Lisa Goodman were authorized to conduct a national study of players' wives, collecting the women's suggestions for handling domestic violence and supporting its victims.
As she tells NPR, her decision to resign came after troubling "pattern emerged" in her communications with the NFLPA.
"I brought a number of ideas to the commission about ways in which they could deal with the domestic violence problem in the NFL," she says. The report compiled short-term and long-term recommendations.
The NFLPA heard her out, she says, but since filing the report in June 2016, "it has sat on the shelf."
"The Player's Association contacts that I have would welcome those ideas, tell me they were eminently doable, but that they had to get kicked down the road because 'It was the Super Bowl, it was the draft, it was the season,' " she says. "And I would come back and reiterate my suggestions, and eventually I found that communication would just die on the vine."
"I realized very little, if anything, was going to happen."***
Esptein, who signed a confidentiality agreement with the NFLPA, says she can't divulge what recommendations she provided in the report. Ostensibly, the confidentiality protects the anonymity of spouses and partners of NFL players from retribution, allowing them to speak freely.
In a Washington Post op-ed earlier this month, Epstein says, "I simply cannot continue to be part of a body that exists in name only," and what, she believes is "a fig leaf."
Thursday, March 22, 2018
Patrick Shin, Sex and Gender Segregation in Competitive Sports: Internal and External Normative Perspectives, 80 Law & Contemporary Problems 47 (2018)
What are the justifications for mandatory sex segregation in competitive sport, and what are the arguments against it? This article takes up these questions. I argue that justifications of sex segregation in sport should be sensitive to two distinct perspectives that can come into play. The “internal” perspective emphasizes considerations rooted in an ethos of athletic competition. The “external” perspective brings into focus broader social norms such as anti-discrimination principles and equality goals. Both perspectives support the general idea of separate men’s and women’s competitions, at least in elite levels of sports that reward physical strength and power. The perspectives may diverge, however, on specific questions about who should be permitted to compete in each division, and more particularly, on the appropriate treatment of transgender athletes. What is important to see is that objections that arise from the external vantage point of equality and anti-discrimination cannot be fully answered by appeal to internal considerations about the competitive integrity of sport. Institutional decisions to exclude classes of individuals from participating in men’s or women’s competitions must consider not only what would be best for the sport, but what is required by antidiscrimination principles and genuine commitment to respect for gender identity and expression.
Mary Anne Case, Heterosexuality as a Factor in the Long History of Women's Sports, 80 Law & Contemporary Problems 25 (2017)
Too many accounts of the development of women’s sports tend to posit their origin in the late nineteenth or even the twentieth century, as a belated, slowly developing, and sometimes vehemently resisted addendum to the development of sports for men. To begin a history of women’s sports at such a late date has several important distorting effects. Most simply, it ignores both the much longer history of women’s participation in many kinds of sports and the fact that the history of organized men’s sports as presently conventionally understood itself does not date back appreciably farther than the last century and a half. The history of women’s sports is more complicated than a progress narrative. Rather than seeing women being gradually admitted into more and more sports over time, we have to acknowledge that a variety of sports — from wrestling and boxing to polo and baseball — were played by women and were seen as suitable for women over long history. Women’s recent readmission to competition in some of these sports follows an intervening period of exclusion.
More significantly, to begin the history of women’s sports in the nineteenth century is to begin it in a time period in which men and women were seen, as both a descriptive and a normative matter, to be as different as possible from one another, with men strong and active, women delicate and passive. Thus, the modern history of sport is often seen to begin at precisely the time women were seen as least suited to participate in sports.
This article views the history of sports through a heterosexual matrix. It argues that from the dawn of time through the development of the modern Olympic movement, a culture’s openness to women’s participation in sports was tied to whether that participation was seen to have a heterosexual payoff. In ancient Greece and Africa as well as in medieval and early modern Europe, women’s sports often formed part of mating rituals, and a successful female competitor was seen as a desirable mate. In the nineteenth century, however, athletic and other sporting competition often was seen as doubly debilitating to a woman’s chances for heterosexual success: not only would sweating and the development of muscles make her unattractive, but strenuous physical exercise was thought to risk physiologically compromising her reproductive capacity. Rather than seeing physical fitness as conducive to reproductive fitness as had their ancestors, men like Pierre de Coubertin, founder of the modern Olympic movement, saw the two as in tension with each other.
After considering the extent to which these competing views of women’s athleticism in relation to heterosexuality influenced the development of women’s sports, the article will conclude by observing the remnants of a heterosexual matrix in twenty-first century sports, from figure skating and synchronized swimming to gymnastics and crew.
Tuesday, January 30, 2018
The House passed a bill on Monday night that protects amateur athletes from sexual abuse by enforcing mandatory reporting regulations and extending the statute of limitations for child victims.
The bill, which was sponsored by Sen. Dianne Feinstein (D-Calif.), came up for a vote one week after Larry Nassar was sentenced in what was the largest sexual abuse scandal in sports history. Congress agreed to use the Senate’s version of the bill to speed up its passage; it passed with a vote of 406-3. It just needs President Donald Trump’s signature to be made into law. ***
The bill has a three-pronged approach to protecting athletes and regulating governing bodies of amateur athletics.
First, it requires coaches, trainers and others to report any sexual abuse allegation to the police within a 24-hour period. Several women said they reported Nassar to MSU representatives and others as early as 1997, but Nassar’s abuse was allowed to continue because no one adhered to mandatory reporting regulations.
Secondly, the legislation extends the statute of limitations to up to 10 years after a victim realizes he or she was abused. It’s not uncommon in child sexual abuse cases for survivors to have a delayed realization of the abuse they endured. Many of Nassar’s victims did not realize they had been abused until other women came forward with their stories.
Lastly, the bill limits athletes under the age of 18 from being alone with an adult who isn’t their parent. Nassar often abused young girls while he was alone with them during medical visits, and many survivors said the isolation of elite gymnasts allowed the abuse to continue. ***
Monday, January 22, 2018
Susan Eckes, Title IX at 45: Equal Treatment of Students in High School Athletic Programs, 25 Amer. J. Gender, Social Policy & Law 391 (2017)
It is the 45th anniversary of Title IX of the Education Amendments of 1972, and some high schools continue to struggle with their compliance in athletics by showing a preference for boys’ athletic programs. A 2015 report issued by the U.S. Department of Education’s Office for Civil Rights (“OCR”) indicated that there were 3,609 complaints related to athletics in 2013-2014. While much of the litigation in this area has traditionally addressed high school accommodation claims, more recent litigation has begun to also focus on equal treatment claims that might include scheduling or facility disparities involving athletics. For example, in April 2016, ten female softball players sued under Title IX in federal court in Portland, Oregon. In this complaint, the plaintiff’s sought injunctive relief to remedy the inequities that exist between the softball and baseball team facilities. Others have filed complaints with the U.S. Department of Education (“ED”) regarding similar inequalities. In Canton, Ohio a father filed a complaint with the ED arguing that the girls’ softball team did not have equitable facilities when compared to those of the boys’ team. Specifically, the girls went eight seasons without a home field whereas the boys only went two seasons without a home field. Likewise, in Lexington, South Carolina parents filed a complaint with the ED related to unfairness involving facilities between the boys’ baseball team and girls’ softball team.
In recent years, several courts have addressed these issues regarding the multitude of inequalities between male and female sports. In these lawsuits, female plaintiffs or their parents typically allege violations of Title IX of the Education Amendments of 1972 and/or the Equal Protection Clause of the Fourteenth Amendment when the athletic facilities are inadequate or the athletic team’s schedules are inopportune.10 Because K-12 athletic programs have received increased scrutiny from the courts in recent years, this article explores litigation involving high school athletic programs that focus on disparities with facilities and schools in an effort to highlight the existing legal obligations of school districts.11 It concludes with some suggestions for school officials to create more parallel athletic environments.
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.