My family seems quite focused on sports today. We attended my niece's cross-country meet. We were going to attend my nephew's soccer game but it got canceled due to the pouring rain. And at the moment, my husband and in-laws are assembled in the living room watching college football.
So I will honor today's sports focus by presenting some interesting research I did a while ago on Title IX and contact sports. As I am guessing many of you know, Title IX is a federal law that requires public and federally funded schools to provide athletic opportunities for girls and women equal to the opportunities provided to boys and men. But does that mean federally funded universities are required to permit women to play tackle football? Not exactly. The following is a summary of the current state of the law (I am happy to provide citations to anyone who is interested):
1) Title IX GENERALLY requires that women be permitted to try out for and participate in a university men's team if there is no women's team in that sport.
2) Contact sports are an exeception to that rule. Contact sports include "boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involve bodily contact."
3) Therefore, if there is (for example) no football team at the university, the university is not required to permit a woman player on the men's football team.
4) HOWEVER: When a university allows a woman to play on a men's football team, despite not being required to do so, the university has a duty not to discriminate against that woman player. For example, in the mid-1990s, the Fourth Circuit Court of Appeals allowed a claim by Heather Sue Mercer, who was permitted to join the Duke University football team but was then prohibited from even dressing for games or sitting on the sidelines, her coach suggesting to her that she should participate in beauty pageants instead. The Fourth Circuit said that once Duke allowed her on the team, it had to treat her fairly.
5) FURTHERMORE: There is a possibility that a university would be required to form a woman's football team if there were enough women at the university expressing an interest in playing football. (Title IX requires that if women are underrepresented among a university's athletes, the university must demonstrate that it has a history or continuing practice of program expansion that is demonstratively responsive to women students' developing interests and abilities, OR that women students' interests and abilities are currently accommodated.)
6) THERE ARE ALSO ADDITIONAL REQUIREMENTS ON GOVERNMENT SCHOOLS BEYOND TITLE IX: Despite Title IX's contact sports exception, government schools (as branches of the state) may be required to permit women to play on men's football teams under the equal protection clauses in the federal and state constitutions. (The equal protection clause would probably not apply to private schools that merely receive government funding.) While state actors have the right to distinguish between the sexes if there is "a justifiable governmental interest in doing so," most courts that have considered the issue has concluded that protecting female atheletes from injury is not a justifiable government interest. Here are some great quotations on that issue:
Any notion that young women are so inherently weak, delicate, or physically inadequate that the state must protect them from the folly of participation in vigorous athletics is a cultural anachronism unrelated to reality. Hoover v. Meiklejohn, 430 F.Supp. 164 (D. Colo. 1997).
The risk of injury to the average male is not used as a reason for denying males the opportunity to play on the team . . . [nor] is the fact that some males cannot meet the team requirements . . . used as a reason for disqualifying [males generally] from the team. Darrin v. Gould, 540 P.2d 882 (Wash. 1975).
7) TEAMS ARE NOT REQUIRED TO LOWER THEIR STANDARDS: Even for those state schools which may be required to allow women players on their football teams, there is absolutely no requirement that men's teams lower their standards in order to allow women to play. In other words, a school can bar a woman player for failing to have the strength or skills necessary to make the team, but the school cannot bar her just because she is a woman.
But does any of this really matter? Do women really WANT to participate in such sports or is this all just hypothetical?
Lawyers for Duke University argued that Heather Sue Mercer's case was unimportant because it was unlikely that many other women would ever want to play football. The Fourth Circuit Court of Appeals disagreed, noting:
In 2001, Ashley Martin, a kicker for Jacksonville State University became the first woman to participate and score in a Division I-AA football game, kicking three extra points. And in 2003, Katie Hnida, a kicker for the University of New Mexico, became the first woman to score in a Division I-A football game, kicking two extra points . . . It is also worth pointing out that in 2003, nearly 3,000 girls in high school . . . played football, and another 10,000 participated in traditionally male sports like ice hockey and wrestling.
It's enough to make a girl like me put on her shoulder pads and get out there. Mean Joe Green, here I come. (OK so I'm dating myself and revealing how little I actually know about football, but I think it is a cool sport. I'm more likely to stick to running and maybe to take up hockey in my old age when I have time to commit to a team activity.)