So here’s my pitch: Why drag this out? Why not remove girls’ and women’s sports from our increasingly fragile administrative law and add “competitive athletics”—coupled with a formal equality mandate—to the statute’s list of exceptions?
Caitlin Clark is at once the biggest name in Title IX sports and the redoubtable symbol of this extraordinary moment in which women’s athletics are exploding in popularity, media exposure and economic value. As we head into the heart of March Madness, where she will be ubiquitous, the sense is that, finally, female athletes and their futures are on solid ground. Except they’re not because this moment was built on a legal edifice that is looking increasingly like a house of cards. Congress and the president need to stop playing politics with the institution and fix it.
This is the legal situation:
‘Title IX’ is today synonymous with girls’ and women’s sports but, in fact, the statute, enacted in 1972, doesn’t mention sports. The text reads simply, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving Federal financial assistance.” A list of exceptions that permit sex-based sorting follows, including fraternities and sororities, but athletics isn’t on it.
The first statutory mention of sports comes in this 1974 amendment, named after Sen. Jacob Javits (R-N.Y.): “The Secretary shall prepare and publish … proposed regulations implementing the provisions of Title IX … which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports.” Notice that it speaks only to intercollegiate athletics. The history is clear that it was designed to protect men’s revenue producing sports.
What the statute says is important, of course, because federal agencies are only permitted to regulate consistent with its terms. They’re not supposed to make law, only to execute law that’s made by Congress. It’s then the courts’ job to determine whether regulations are reasonable given the legislation.
In 1975, the Department of Health, Education, and Welfare produced the regulations required by the Javits Amendment. They provide in relevant part that: “A recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” Notice that they allow—but don’t require—separate sex teams in circumstances where sex differences would make it unfair or unsafe to compete on a co-ed basis. Also, they apply not only to colleges but also to primary and secondary schools.
Following a process called the legislative veto, before they were finalized, the regulations were reviewed and effectively approved by Congress, which took witness testimony from men’s and women’s groups. Both were interested—for different reasons—in a sports exception to Title IX’s rule prohibiting sex discrimination. The carve-out for men’s football and basketball was justified politically and on the still-valid ground that female athletes are at greater risk of injury in co-ed contact sports. The carve-out for women’s sports was and remains justified by physical sex differences between males and females, the performance gap that results and the statute’s promise of sex equality in educational programming.
Relying on this legislative history, all three branches of government have assumed that the agency—now the Department of Education—was acting within its authority when it reached beyond college sports, permitted schools to field separate sex teams, and established the formula schools use to prove compliance with the equality mandate. Because we’re unlikely to see even exceptional female athletes without sex segregated sport, because girls’ sports are feeders for women’s sports, and because policymakers wouldn’t have invested the resources to train up this generation of female athletes without the mandate, it’s widely understood that these regulatory requirements are the reason we can know athletes like Caitlin Clark and events that showcase them like Women’s March Madness.
The problem is the Supreme Court has been eroding this legal foundation in a set of cases that apply to sports even though they didn’t arise on sports facts. The legislative veto is now unconstitutional, which means the courts’ practice of giving quasi statutory deference to the regulations because Congress reviewed them is on fragile ground if not null and void. The court also now prefers plain text readings of statutes to reliance on legislative history, which means that we can’t count on using that history to justify the regulatory scheme. Finally, this term, in Loper Bright Enterprises v. Raimondo, the court is expected to overturn its 1984 decision in Chevron v. Natural Resources Defense Council which requires courts to defer to reasonable agency interpretations of statutes and regulations. In its brief in Loper Bright, the Biden administration was blunt about the implications: “Overruling Chevron now could upend not only an agency’s interpretation of federal law … but also agency programs and regulations that flow from that interpretation.” It’s hard to come up with a better example of an “agency program” subject to being “upended” than Title IX, built as it is on a thick pile of agency interpretations of federal law.
In a post-Loper Bright world in which courts are foregoing legislative history and deciding on their own about the best reading of the statute, even a sympathetic jurist could have a hard time upholding girls’ and women’s sport based on text that consistently has been read to prohibit separate sex programming, doesn’t include sports amongst its exceptions and requires only “reasonable provisions” to regulate “intercollegiate athletics” given “the nature of particular sports.”
Like other administrative regimes, Title IX wouldn’t come crashing down all at once. It would take litigation which could come in the form of a challenge to the Biden administration’s move to include transgender athletes on girls’ and women’s sports teams; or to the Carter administration’s 1979 policy interpretation which contains the formulas schools are required to use to prove compliance. However they arise, lawyers will make the traditional arguments in defense of the status quo—arguments I’ve made myself over the years—but ultimately, we’ll need a statutory fix.
So here’s my pitch: Why drag this out? Why not remove girls’ and women’s sports from our increasingly fragile administrative law and add “competitive athletics”—coupled with a formal equality mandate—to the statute’s list of exceptions? It doesn’t matter if they’re added above or below sororities and fraternities, the point is they belong there, as they have all along. That they’re in regulations not a statute is an artifact of a now defunct legal history which shouldn’t jeopardize an institution that provides such important societal value. Yes, partisanship is rife on the Hill and it’s hard because of this to get anything done. But this should be easy common ground, especially if it’s a clean bill that leaves the contested transgender issue for another day. It would be a great way to honor this extraordinary moment and for politicians in both parties to prove to the electorate that their professed commitment to girls’ and women’s sports isn’t just performance art.
Doriane Lambelet Coleman, a former collegiate national champion, is Professor of Law at Duke Law School and the author of the forthcoming book, “On Sex and Gender — A Commonsense Approach.”
