Gender and the Law Blog

Ninth Circuit Says Law Banning Transgender Students is Likely Unconstitutional

ABA J, Law Banning Transgender Students from Female Sports Likely Unconstitutional, Ninth Circuit Says

A federal appeals court on Thursday ruled for a transgender college student who challenged an Idaho law that bars transgender athletes from participating in women’s and girls' student sports in public schools.

The 9th U.S. Circuit Court of Appeals at San Francisco upheld a finding that the law likely violates the equal protection clause, according to an Aug. 17 press release by the American Civil Liberties Union.

Bloomberg Law has coverage.

The appeals court ruled for Lindsay Hecox, a student at Boise State University who wanted to try out for the cross-country team and play club soccer.

The 9th Circuit upheld an injunction banning enforcement of the Idaho law, the Fairness in Women’s Sports Act. The law bars all transgender women and girls from participating in or trying out for public school female sports teams at every age—from intramural to elite teams.

The law provides for a verification process that can be invoked by a person who wants to dispute another person’s sex. The process requires “intrusive medical procedures,” the appeals court said in an Aug. 17 opinion by Judge Kim McLane Wardlaw.

The American Civil Liberties Union had filed the lawsuit, along with the ACLU of Idaho, Legal Voice and Cooley.

The case is Hecox v. Little.

Analyzing the Glass Ceiling of the NCAA's Name, Image and Likeness Rule under Title IX

Tanyon Boston, The NIL Glass Ceiling, Richmond L. Rev. (forthcoming)  

On July 1, 2021, the National Collegiate Athletic Association (NCAA) adopted the most progressive reform in modern intercollegiate athletics history when it conceded the right of nearly 500,000 NCAA athletes to monetize their names, images and likenesses (NILs). This historic reform followed the enactment of dozens of state laws on the topic and a unanimous Supreme Court decision in NCAA v. Alston, which held that the national governing body violated antitrust laws with its restrictions on athletes’ educational, and perhaps other, benefits. Almost immediately, wealthy University of Texas donors established an unprecedented $10,000,000 collective to finance NIL opportunities for Longhorns athletes. Today, there are over one hundred collectives, whose NIL opportunities favor men’s sports by a ratio of over five-to-one. Such enormous disparities in privately financed NIL send women discouraging messages about the state of gender equity, not only in intercollegiate athletics, but also in the workplace – where women face similar glass ceilings.

Although legal scholars have written extensively on the antitrust, labor and tax law implications of NIL, very little scholarship exists on the Title IX implications. In seeking to fill the gap, this Article uses a hypothetical state university to illustrate how schools facilitate gender discrimination through NIL collectives, contrary to Title IX. After exploring the implications of Title IX’s regulatory gap with respect to NIL, this Article introduces three proposals to close the gap.

New Book Equality Unfulfilled: How Title IX's Policy Design Undermines Change to College Sports

New Book by Elizabeth Sharrow About Title IX "Equality Unfulfilled" is Published

Elizabeth Sharrow, associate professor of public policy and history, has published a new book, “Equality Unfulfilled: How Title IX’s Policy Design Undermines Change to College Sport” (Cambridge University Press, July 2023), examining the half-century legacy of the law’s passage.

As Sharrow and co-author James Druckman of Northwestern University explain in the book, the year 1972 is often hailed as an inflection point in the evolution of women’s rights. Congress passed Title IX of the Education Amendments of 1972, a law that outlawed sex-based discrimination in education. Many Americans celebrate Title IX for having ushered in an era of expanded opportunity for women’s athletics, yet 50 years after its passage sex-based inequalities in college athletics remain the reality. “Equality Unfulfilled” explains why, identifying institutional roadblocks – including sex-based segregation, androcentric organizational cultures and overbearing market incentives – that undermine efforts to achieve systemic change.

Drawing on surveys with student-athletes, athletic administrators, college coaches, members of the public and fans of college sports, it highlights how institutions shape attitudes toward gender equity policy. It offers novel lessons not only for those interested in college sports but for everyone seeking to understand the barriers that any marginalized group faces in their quest for equality.

 

 

Dismantling the Cage of Binary Sports

Tracy L. Turner, Dismantling the Cage of Binary Sports, 67 St. Louis U. L. J. 41 (Fall 2022)

This article responds to recent media coverage and legislative action regarding transgender athletes. For every step forward that organizations like the National Collegiate Athletic Association take to improve the wellbeing of transgender athletes, they are met with increasingly vehement objections. Often, these objections take the form of hurtful comments about the bodies, sexuality, and personality of individual athletes. Recently, several state legislatures have enacted “fairness” laws that categorically exclude transgender athletes from female programs. This article considers the relationship between two significant harms perpetuated by sex segregation in athletics: the relegation of female athletes to a second-tier status that caps their potential, and the trauma gender minority athletes experience while trying to fit into a heteronormative structure. Using Equal Protection doctrine, Title VII, and Title IX, the article argues against rigid sex and gender classifications in favor of individualized assessment of merit. The overall goal of the article is to advocate for a system of school athletics defined by inclusion rather than exclusion in which every athlete can find their ideal competitive fit and maximize their athletic excellence, a result that will strengthen the quality of American sport.

Koller on "The Pipeline to Title IX"

Dionne Koller has published The Pipeline to Title IX in volume 33 of the Marquette Sports Law Review.  The abstract previews: 

Sport participation for girls and women remains, to perhaps state the obvious, contested terrain. In the fifty years since Congress enacted Title IX, the struggle to achieve sex equality in sport has taken different forms, from the initial fight to permit girls and women to participate at all to navigating the backlash that Title IX as applied to sport has “gone too far.” Whatever its form, the struggle over gender equity in sport has been, at bottom, a struggle to re-calibrate the traditional systems of power circulating in sport. Title IX dramatically altered the trajectory of this struggle through a highly successful, but as yet not fully realized, legal intervention that prohibits sex discrimination in education-based sport. This Article seeks to shed light on one aspect of the struggle, by arguing that to fully achieve equality for girls and women in sport, we must expand our lens to incorporate a more complete understanding of the systems of power that shape whether a girl becomes an athlete with the “interest” and “ability” to participate. In doing so, this article explains that youth sport is the pipeline to Title IX, and it operates as a largely privatized, professionalized system, conceptualized as a matter for the individual, not public policy. It is also an experience entwined with public health discourses that link participation in athletics with being a responsible citizen. In the U.S., youth sport is shaped by what many call our “neoliberal” political, historical moment, and in this way, it has a profound impact on Title IX’s continued ability to make meaningful change in education-based sport. 

Reflections on Progress Without Equity, Title IX at Fifty in K-12 Athletics

Elizabeth Kristen, Reflections on Progress Without Equity: Title IX K-12 Athletics at Fifty, 30 American J. Law & Gender 227 (2022)

Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only a small fraction of those cases (about 300) include the word “athletics,” and fewer still address gender inequity at the K-12 level. This Article provides a brief overview of the “state of play” concerning gender inequity in athletics and the basic structure of Title IX athletics equity law. It then considers the Ollier v. Sweetwater1 high school Title IX athletics case and lessons learned from that hard-fought litigation on behalf of a class of high school girls that sought to level the playing field at their school. It then makes nine recommendations for what changes should be made to our approach to Title IX athletics at the K-12 level to ensure more effective enforcement to achieve gender equity. Inequalities in athletics at the K-12 level require litigation and policy changes that will have substantial and positive impacts on the lives of girls and young women.

For the First Time, Court Holds That Female Student Athletes Can Sue Universities for Damages

Andy Zimbalist & Carrie Baker, Student-Athletes Can Now Sue Discriminatory Universities for Damages, a Victory for Title IX, Ms.

A first-in-the-nation court ruling says female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

U.S. District Court Judge Todd W. Robinson ruled on April 13 that the female student-athletes suing San Diego State University (SDSU) for violating Title IX can pursue claims for equal athletic financial aid, equal treatment and retaliation. The decision is the first in the nation to hold that female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

“This is a major step forward for women and against sex discrimination at SDSU and nationwide,” said lead counsel Arthur H. Bryant of Bailey & Glasser in Oakland. “SDSU has been cheating its female student-athletes out of hundreds of thousands of dollars in equal athletic financial aid each year. It is giving its male student-athletes far better treatment than its female student-athletes. And it blatantly retaliated against its female student-athletes for standing up for their rights. Now, it can be held accountable.”

The class-action lawsuit alleges female student-athletes were given less scholarship support than the male athletes, received inferior treatment and benefits and were retaliated against when they protested against discrimination. Judge Robinson agreed their suit could go forward and went a step further—awarding the students the right to seek monetary damages.***

The other avenue for redress of grievances is litigation. Here too, courts usually require non-compliant schools to enter into a program to improve the treatment of female athletes. Until the SDSU case, however, female athletes experiencing sex discrimination in athletics did not sue for damages but instead sued for injunctive relief—a court order directing a school to stop or reduce discriminatory practices. Now, we know they can sue for monetary damages

The Trans Threat Narrative in Title IX

Deborah L. Brake, Title IX's Trans Panic, 29 William & Mary Journal of Race, Gender, and Social Justice 41 (2023)

Sport is an agent of social change, but that change does not always track in a progressive direction. Sport can be a site for contesting and reversing the gains of progressive social movements as much as furthering the values of equality and justice for historically marginalized groups. This dynamic of contestation and reversal is now playing out in a new wave of anti-transgender backlash that has gained adherents among some proponents of equal athletic opportunities for girls and women. In this latest twist in the debate over who deserves the opportunity to compete, the sex-separate athletic programming permitted by Title IX has been the vehicle for depicting trans athletes – and especially trans girls – as unwelcome intruders poised to take away Title IX’s gains for female athletes. The trans threat narrative relies on and reinforces a dichotomy between trans girls and cisgender girls, with the latter positioned in this narrative as the “real” girls, and the former depicted as suspect subjects – and even, absurdly, as boys posing as girls for opportunistic reasons. Despite the lack of empirical evidence that trans athletes pose any threat to girls in sports, the threat narrative has been an effective strategy for reinscribing traditional understandings of sex and gender roles precisely because it trades on the popularity of Title IX across the political spectrum. The trans threat narrative has even gained adherents among some advocates for girls in sports who otherwise align with liberal supporters of transgender rights. The threat narrative has also succeeded in gaining support among state legislators, school boards, and parents, under the banner of protecting sports opportunities for “girls.” The issue has divided the women’s sports community, which has historically functioned as a unified front for advancing gender equality in athletics. This article examines the threat narrative in relation to the theories and justifications for Title IX’s baseline of sex-separation in school sports programs. It contends that the narrative embraces the most problematic of the justifications for sex-separation of sports, thereby reinforcing stereotypes of gender difference that have long thwarted girls’ and women’s efforts to achieve equal athletic opportunity. Equality for girls and women in sport is best achieved by embracing trans inclusion and rejecting efforts to exclude trans athletes from competition.

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.

 

Subscribe to this blog via Feedly, NewsBlur, or Inoreader or follow on Twitter @ProfTracyThomas & @jrabrams

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.