Gender and the Law Blog

The Future of Equal Pay in Sports

Suman Dash Bhattamishra & Rangin Tripathy, The Future of Equal Pay in Sports, 7(1) COMP. CONST. L. & ADMIN. L. J. [1] (2022)

Over the last decade, there has been a steady and unmistakable rise in the popularity of women’s sports and female athletes in general. Most of the viewership records for major women’s sporting events have been set in the last decade. With increased attention to women’s sports, there has also been heightened scrutiny on the pay gap which exists between men and women playing the same sport. While in some selected sporting competitions, such as the All-England Tennis Championships (Wimbledon), women and men are now paid equal amounts of prize money, there still exists a significant difference in the financial incentives which are afforded to men and women. This paper looks at the feasibility of ensuring equal pay through the judicial process. We argue that a judicial route would involve greater hazards in the pursuit of equal pay, and instead, the pressure of public opinion and consequential changes in policy formulation by the administrators presents a better opportunity of mitigating the pay gap which exists between men and women. We further argue that even if judicial decisions favour the cause of equal pay, in the current climate, political mobilization offers a more enduring solution than judicial intervention.

Second Circuit Upholds Transgender Sports Policy Allowing Male Students who Identify as Female to Compete in Girls' Athletics

Female Track Athletes Lose Appeal Against Connecticut's Transgender Sports Policy

A federal appeals court has rejected a challenge to Connecticut’s policy allowing male students who identify as female to compete in girls’ athletics, a case with national implications for the debate over fairness and inclusion in competitive sports.
 
The Second Circuit Court of Appeals in New York affirmed on Tuesday the dismissal of a lawsuit filed by four female high school athletes against the Connecticut Interscholastic Athletic Conference’s transgender-participation policy after losing races to biological males.
 
The 29-page decision, written by senior U.S. District Court Judge Denny Chin, an Obama appointee, found that the girls lacked standing because they were still afforded the opportunity to compete in state track meets. The ruling affirmed a federal district court’s decision to dismiss the case in April 2021.

Title IX Concerns from the Lack of Transparency in Reporting Intercollegiate Names, Images and Likeness Earnings

Tanyon Boston, NIL Data Transparency, 83 Louisiana L. Rev. (forthcoming 2023)

 Since July 2021, intercollegiate athletes have earned nearly $1 billion from monetizing their names, images, and likenesses (NIL), with some earning more than professionals. Such earnings were made possible by state NIL laws and by the NCAA’s simultaneous retreat from enforcing restrictions on athletes’ ability to earn compensation for the use of their NILs. Commentators argue that the unforeseeably impressive NIL figures are driven by disproportionate institutional support for athletes in certain high-profile sports. If true, this may raise Title IX concerns, as NIL earnings for female athletes lag considerably behind that of their male counterparts. Although most state NIL laws require athletes to report NIL data to their schools, schools are not required to make the information publicly available—not even in redacted form. The current lack of NIL transparency by schools makes it virtually impossible to accurately identify potential gender disparities.

This Essay explores the relationship between the lack of NIL transparency and incentives for colleges and universities to meet Title IX’s requirements for NIL. It argues that shielding NIL data from public scrutiny is inappropriate given Title IX’s culture of disclosure. This Essay further argues that stakeholders will be unlikely to implement a NIL framework that aligns with Title IX’s purpose, without a universal disclosure mandate. After exploring how a lack of NIL transparency frustrates Title IX’s purpose, this Essay concludes with a workable proposal for collecting and disclosing NIL data.

Can Title IX Be Used to Exclude Trans Athletes

WP, A Battle Over Title IX: Can it be Used to Exclude Trans Athletes?

On Thursday, a federal appellate court heard arguments concerning the rights of transgender student-athletes.

But unlike most other legal challenges of this kind, the plaintiffs aren’t trans people suing to have their rights recognized.

Instead, a group of young cisgender women, represented by the Christian conservative legal organization Alliance Defending Freedom, is arguing that allowing trans athletes to compete on teams that align with their gender identity violates the rights of cis women.

 

The case, Soule et al v. Connecticut Association of Schools et al, was dismissed by a federal district judge last year, but it has proved to be consequential.

On Thursday, a federal appellate court heard arguments concerning the rights of transgender student-athletes.

But unlike most other legal challenges of this kind, the plaintiffs aren’t trans people suing to have their rights recognized.

Instead, a group of young cisgender women, represented by the Christian conservative legal organization Alliance Defending Freedom, is arguing that allowing trans athletes to compete on teams that align with their gender identity violates the rights of cis women.

 

The case, Soule et al v. Connecticut Association of Schools et al, was dismissed by a federal district judge last year, but it has proved to be consequential.

 

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The Legal History and Original Drafter and Advocate of Title IX, Edith Green

Wash Post, The True Mother of Title IX. And Why it Matters Now More than Ever

June 23 marks 50 years since Title IX, which prohibits sex discrimination in education, was signed into law. The anniversary has sparked discussion of Rep. Patsy Takemoto Mink (D-Hawaii) — the first woman of color elected to Congress in 1964, for whom Title IX was renamed in 2002. In fact, the media often refers to Mink as the "mother” of Title IX.

 

But while Mink strongly defended Title IX and focused on bringing about equality under the law in her 24 years in the House, she did not actually write the bill or introduce it into Congress. Rep. Edith Green (D-Ore.) wrote Title IX and worked tirelessly on Capitol Hill to pass this landmark legislation that has improved the lives of millions of women and girls over the past half-century.

 

Today, as conservative activists and politicians work to ban the teaching of certain concepts and history related to sex and race, it is important to insist on historical accuracy in our political discussions and remembrances. Mink more fully embraced the feminist and political ideals embedded in Title IX than did Green. But the true story of Green’s involvement reminds us that progress doesn’t only come from the political leaders you’d expect.

 

Green was well-poised to take on legislation like Title IX by the early 1970s. Before tackling sex discrimination in education, she led an eight-year battle to pass the Equal Pay Act of 1963 — the first legislation of its kind, even if limited in scope by today’s standards. After 15 years in the House, Green became chair of the subcommittee on higher education. She authored or influenced nearly every education bill during her tenure in the House, earning her the nickname “Mrs. Education.”

 

Green was a champion of sex equality and educational reform, but she seemed to have at least one blind spot on race. By February 1970, when she introduced the first iteration of Title IX, Green was a vocal opponent of court-ordered busing to racially integrate schools. Although Green didn’t see herself as racist, her argument that busing decisions should be left to local control was a favorite of anti-integrationists. Critics alternately referred to her as “the liberal racist,” “the sweetheart of the Southerners” and “the Nixon Democrat.”

Ohio House Passes "Save Women's Sports Act" Bill to Prohibit Transgender Female Athletes in School Sports and Includes Verification Process of Genital Inspection

Ohio GOP Passes Bill Aiming to Root Out "Suspected" Transgender Female Athletes Through Genital Inspection

House Republican lawmakers in Ohio passed a bill at 11:15 p.m. Wednesday night that would ban transgender girls and women from participating in high school and college athletics. It also comes with a "verification process" of checking the genitals of those "accused" of being trans.

 

The 'Save Women's Sports Act,' or House Bill 61, wasn't supposed to be on the schedule for legislators originally. However, at the last minute, Republican representatives added the language to a completely different bill.

 

H.B. 151 would revise Ohio’s Teacher Residency Program, trying to reduce state control in schools. The bill, sponsored by Republican state Rep. Don Jones, from Freeport, got a surprise addition.

Powell's Save Women's Sports Act Passed by Ohio House

State Rep. Jena Powell’s (R-Arcanum) Save Women’s Sports Act was approved by the Ohio House on Wednesday. The legislation would prohibit biological males from competing in female-only sports within the state. Powell spoke to the legislation’s passage on the House Floor.

 

“The Save Women’s Sports Act is a fairness issue for women. Across our country, female athletes are currently losing championships, scholarship opportunities, medals, education and training opportunities, and more to discriminatory policies that allow biological males to compete in girls’ sports,” said Powell.

 

Powell’s Save Women’s Sports Act, which passed as an amendment to House Bill 151, would ensure that no school, interscholastic conference, or organization that regulates interscholastic athletics can allow biological males to compete in women’s sports. 

 

“All these girls ask for is a fair shot, and to be given the chance to play and win by the rules in the sports that they love. The opportunity is being ripped from them by biological males,” Powell added

US Soccer Reaches Labor Deal for Equal Pay for US National Women's Soccer Team

Wash Post, US Women's and Men's National Soccer Teams Close Pay Gap with "Game-Changing" Deal

The U.S. men’s and women’s national soccer teams struck a labor deal that closes the contentious pay gap between the squads, an unprecedented step that will equalize both salaries and bonuses, providing a substantial boost to the decorated women’s team.

 

The deal was part of new collective bargaining agreements with the U.S. Soccer Federation that were announced Wednesday. It was the culmination of a long battle between the women’s team and the sport’s national governing body, which included a high-profile lawsuit that was settled this year.

 

The USSF said the agreement makes the United States the first country to achieve equal pay for its men’s and women’s teams.

 

“To finally get to the point where on every economic term it’s equal pay, I am just really proud,” USSF President Cindy Parlow Cone said

 

The new CBAs, which still need to be ratified, will equalize World Cup bonuses, something Parlow Cone said no other nation had done. The U.S. teams will pool the World Cup bonuses received from FIFA, the sport’s global governing body, and split them equally, evening out a substantially unequal playing field.

US Women's Soccer Settles Equal Pay Lawsuit

NYT, US Soccer and Women's Players Agree to Settle Equal Pay Lawsuit

For six years, the members of the World Cup-winning United States women’s soccer team and their bosses argued about equitable treatment of female players. They argued about whether they deserved the same charter flights as their male counterparts and about the definition of what constituted equal pay.

 

But the long fight that set key members of the women’s team against their bosses at U.S. Soccer ended on Tuesday just as abruptly as it had begun, with a settlement that included a multimillion-dollar payment to the players and a promise by their federation to equalize pay between the men’s and women’s national teams.

 

Under the terms of the agreement, the women — a group of several dozen current and former players that includes some of the world’s most popular and decorated athletes — will share $24 million in payments from U.S. Soccer. The bulk of that figure is back pay, a tacit admission that compensation for the men’s and women’s teams had been unequal for years.

 

Perhaps more notable is U.S. Soccer’s pledge to equalize pay between the men’s and women’s national teams in all competitions, including the World Cup, in the teams’ next collective bargaining agreements. That gap was once seen as an unbridgeable divide preventing any sort of equal pay settlement. If it is closed by the federation in negotiations with both teams, the change could funnel millions of dollars to a new generation of women’s national team players.

Vacated Sentence for MSU Gymnastics Coach Accused of Making False Statements in Nassar Case

The Michigan Court of Appeals vacated Kathie Ann Klages' conviction for making a false statement in the investation of Larry Nassar's sexual abuse. Michigan Radio provides context to the case: 

A jury convicted Klages last year of two counts of giving a false statement to a peace officer after determining she lied to investigators in 2018 when she told them she had no memory of two teenage gymnasts telling her in 1997 that Nassar's so-called treatment involved genital penetration.

 

A judge sentenced Klages to 90 days in jail and 18 months probation, but Klages earned early release from probation at the request of her supervisors who described her as cooperative.

The full case can be accessed here.  The opinion summary previews: 

The Michigan Attorney General charged Kathie Ann Klages with making a false statement to a peace officer investigating Michigan State University’s knowledge of the sexual abuse perpetrated by Dr. Larry Nassar. Klages made the allegedly false statement in 2018, after Nassar had been convicted, sentenced, and imprisoned. The statement concerned Klages’s memory of conversations with two gymnasts that had taken place 21 years earlier, in 1997. Klages denied any recollection of having been told by the gymnasts that Nassar’s “treatment” had included digital-genital penetration. A jury disbelieved this testimony and convicted her of two counts of lying to a peace officer, MCL 750.479c.

Klages raises several challenges to her convictions. We find one dispositive. No evidence supported that Klages’s false statement regarding the 1997 conversations was material to the criminal investigation conducted in 2018. We vacate her convictions and remand for dismissal of the charges.

National Women's Soccer Players Display Solidarity and Issue Statement

In an article appropriately titled Enough is Enough, WDRB Louisville captured an emotional moment this week when players around the National's Women's Soccer League stopped play at the sixth minute of the game. The six minute mark denoted how it took six years for allegations of sexual coercion and harassment to be acted upon.  The players locked arms at midfield in solidarity. 

The Player's Association also published this list of demands and statement: 

Tonight, we reclaim our place on the field, because we will not let our joy be taken from us. But this is not business as usual.

Teams will stop play in each of tonight’s games at the 6th minute. Players will join together in solidarity at the center circle for one minute in honor of the 6 years it took for Mana, Sinead, and all those who fought for too long to be heard. We call on fans to stand in silence with us. During that time, we ask you to stand in that pain and discomfort with us, as we consider what we have been asked to sit with for too long. We call on you to consider, in that minute, what is demanded of each of us to reclaim our league and our sport.

Following the game, the media are advised that players will refuse to answer any questions that do not relate to abuse and systemic change in NWSL.

Systemic transformation is not something you say. It is something you do. We, as players, demand the following:

1. Every coach, General Manager, representative on the Board of Governors, and owner voluntarily submit to the Players Association’s independent investigation into abusive conduct. They may notify Executive Director Meghann Burke of their agreement with this demand by the close of business on Wednesday, October 13, 2021.

2. The scope of NWSL’s investigation announced on Sunday evening, October 4, 2021, be expanded to include an investigation of each of the twelve NWSL Clubs represented on the Board of Governors to determine whether any abuse, whether presently known or unknown, has occurred at any point in time.

3. The scope of NWSL’s investigation further be expanded to determine whether any League Office staff, NWSL Club, or person in a position of power within NWSL neglected to investigate concerns of abuse raised by any player or employee at any point in time.

4. NWSL adopt an immediate “Step Back Protocol” whereby any person in a position of power (e.g. owner, representative on the Board of Governors, General Manager, or Management Supervisor) at the time that a Club either hired or separated from employment a coach who was, is, or will be under investigation for abuse be suspended from any governance or oversight role within NWSL pending the conclusion of an independent investigation, effective immediately. For any Club that took swift action to protect players upon the discovery of facts that were not previously known to the Club, the immediate disclosure to the Players Association of the circumstances and the policies or practices implemented to prevent the same from happening again may be grounds to restore that person to their position quickly, with the Players Association’s agreement.

5. NWSL immediately agree to disclose all investigative reports referenced in its statement of October 3, 2021.

6. NWSL immediately agree to disclose to the Players Association any and all findings, conclusions, and reports are obtained pursuant to their statement of October 3, 2021, including but not limited to the reopening of the 2015 Paul Riley investigation.

7. NWSL agrees to cooperate with the Players Association’s own independent investigation by a written email to Executive Director Meghann Burke by the close of business on Wednesday, October 13, 2021.

8. NWSL agrees that representatives of the Players Association have an opportunity to meet with potential Commissioner candidates and have a meaningful opportunity to be heard in the selection of the next Commissioner.

The reckoning has already begun. We will not be silent. We will be relentless in our pursuit of a league that deserves the players in it.

#NoMoreSilence

After DOJ Investigation San Jose State University Will Pay $1.6 Million to 13 Student Athletes in Sexual Harassment Case

San Jose State to Pay $1.6 Million to 13 Students in Sexual Harassment Case

Investigations by the university and the Justice Department identified 23 student-athletes who had been inappropriately touched by an athletic trainer, officials said.

San Jose State University has agreed to pay $1.6 million to 13 female student-athletes who alleged that they had been sexually harassed by a former athletic trainer, federal prosecutors and the university said on Tuesday.

 

In a letter to California’s state university system, the Civil Rights Division of the U.S. Department of Justice concluded that the university had failed for more than a decade to respond adequately to reports of sexual harassment against the trainer and violated Title IX, a law that prohibits sex-based discrimination in federally funded schools.

 

The university, the letter stated, did this “despite widespread knowledge and repeated reports of the allegations.” As a result, student-athletes experienced “further sexual harassment,” the department said.

 

Starting in 2009, the Justice Department said in a statement, student-athletes had reported that the trainer repeatedly subjected them to “unwelcome sexual touching” of their breasts, groins, buttocks and pubic areas during treatment in campus training centers.

 

The investigations by the university and the Justice Department identified 23 student-athletes who they said had been inappropriately touched by Scott Shaw, the trainer, according to the university. The department offered $125,000 to each of them, the university said, and 13 accepted the offer.

 

Mr. Shaw, who was the university’s director of sports medicine until he retired last year, and his lawyer could not immediately be reached for comment on Tuesday evening.

 

The Justice Department also found that the university retaliated against two employees in its athletics department, one of whom had repeatedly alerted school officials to the threat posed by Mr. Shaw, and the second had opposed retaliation against the employee who reported the threat. The second employee, the department said, was fired.

Accountability for Nassar Abuse

U.S. gymnasts testified in Congress last week seeking greater accountability for all of the failures in institutions and oversight that allowed Larry Nassar to abuse so many.

Dr. Amanda Potts and I previously analyzed the Victim Impact Statements (VIS) in the Michigan criminal case to consider these larger issues of accountability. Our article, The Language of Harm: What the Nassar Victim Impact Statements Reveal About Abuse and Accountability came out last year in the Pittsburgh Law Review. Last week's testimony resurrects the relevance of the conclusions of this linguistic analysis. 

This Article uses corpus-based discourse analysis to examine this impactful collection of VIS for their larger lessons in law, policy, and society. This analysis reveals several takeaways for further analysis and examination. It reveals the challenges that rape, sexual assault, and abuse survivors face in naming the crime and describing the harms. These challenges are particularly fraught and complex when powerful systems and institutions allow abusers to flourish, resulting in systemic and interconnected betrayals and failures. The VIS call for better platforms for survivors to heal, to speak, and to voice their harms beyond these episodic and rare moments offered by the #MeToo Movement, or, as in the Nassar case, made available due to the specific facts and judicial management of a case. The VIS reveal that, while Nassar has been held accountable, the larger limits of language, law, and accountability ensure that future cases will surface, absent better preventative policies. These VIS broadly call for powerful law and policy reformation that will hold perpetrators and their enablers accountable and meet the full range of victims’ needs outside of the criminal justice system.

Legal Report Finds Systemic Gender Inequity at NCAA Against Women's Basketball and Recommends Organizational Reforms

NPR, A Report Found the NCAA Undervalues Women's Basketball, Prioritizes Men's Team

A highly anticipated external review has found that the NCAA has treated women's games unfairly, both undervaluing and underfunding them for years.

 

Led by New York law firm Kaplan Hecker & Fink LLP, the report recommends reforms to the NCAA's basketball programs. It calls for a combined Final Four tournament and changes to the organization's leadership structure, media contracts, and revenue calculations.

 

The review was prompted in March, when the NCAA came under fire after a video of the minimal equipment in the women's weight room at the organization's championships was posted by University of Oregon basketball player Sedona Prince. The video, which immediately gained traction on TikTok, showed that the NCAA did not provide the women's Division I basketball teams the lavish amenities that it did for the men's tournaments. The NCAA commissioned the review shortly afterward.

 

Now, the 113-page report has found evidence of "systemic gender inequity issues" at the NCAA.

 

"With respect to women's basketball, the NCAA has not lived up to its stated commitment to 'diversity, inclusion and gender equity among its student-athletes, coaches and administrators,' " the report states.

 

The report describes the undervaluing of women's teams as "perpetuating a mistaken narrative that women's basketball is destined to be a 'money loser' year after year. Nothing could be further from the truth."

 

It notes increasing television audiences and female players' "huge followings on social media," and says the NCAA could negotiate far higher fees for coverage of the women's games.

March Madness Could Spark at Title IX Reckoning on NCAA Exception

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.  

. . . . 

US Women's Soccer Loses Key Part of Discrimination Case, with Judge Focusing on Men's Entitlement

Not Even the USWNT Could Beat Male Entitlement

In the fight for equal pay, the hardest thing to beat is not a judge or corporation or a piece of case law. It’s an attitude. The real opponent is a fearful illogic that says to grant a single dollar to a woman for her excellence somehow comes at the expense of a man. That illogic, that unreasoning resistance, is written all through Judge R. Gary Klausner’s latest opinion on the U.S. women’s soccer pay discrimination case, a ruling that is a setback — for now — to the idea that gold medal-winning American women should make a merely equitable wage for better and more work.

 

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

[F]ederal judge R. Gary Klausner, ruling in U.S. District Court for the Central District of California in Pasadena on Friday, was unpersuaded by the women’s legal case for that demand. Klausner rejected the U.S. women’s soccer team’s argument that it has been underpaid relative to the U.S. men in the gender-discrimination suit filed in March 2019.

 

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

Re-Affirming the Value of the Sports Exception to Title IX's General Non-Discrimination Rule

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.

Re-norming Sport to Change a Toxic Culture of Harassment and Abuse

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.

Book Review: The Transformation of Title IX and the Success of the Administrative State

Samuel Bagenstos, This is What Democracy Looks Like: Title IX and the Legitimacy of the Administrative State, Michigan Law Review, Vol. 118, No. 6, 2020

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.

Tracing the History of the Equal Pay Dispute Between the US Women's National Soccer Team and the Soccer Federation

Andrew Haile, An Even Playing Field: The Goal of Gender Equity in World Cup Soccer,  Elon University Law Legal Studies Research Paper

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.

The Details on the US Women's Soccer Team's Lawsuit for Pay Discrimination

The lawsuit is Morgan, et al. v. US Soccer Federation (C.D. Cal.) (filed 3/8/19)

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.

Vox, US Women's Soccer Team: What's Next in the Their Fight for Equal Pay

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.

Wash Post Are US Women's Soccer Players Really Earning Less than Men?

Gender Law Prof Blog, US Women's Soccer Team Sues US Soccer for Gender Discrimination (March 2019)

NY Times, US Women's Team and US Soccer Agree to Mediation Over Gender Discrimination Claim

Soccer America, Key Legal Issues in US Women's Discrimination Lawsuit Explained by Prof. Steven Bank