Title IX Built Women’s Sports. Now, It’s Time for it to Change.

Fifty years after the law was signed, its limits are clear.

Alex Milan Tracy/AP

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The law that transformed sports for women and girls is turning 50. 

On June 23, 1972, President Richard Nixon signed into law Title IX, prohibiting sex-based discrimination in schools, as part of sweeping reforms to the education system. When the law passed, just over 300,000 young women played college and high school sports. Forty years later, six times as many women and girls were competing at the high school and college level. By 2016, one in every five girls in the United States played sports. The law essentially created women’s professional sports as we know it by building a pipeline of athletic opportunities.

But five decades later, the limits of Title IX have come into full focus. In the last two years, at least 18 states have introduced or passed laws to ban transgender and nonbinary students from competing in sports that align with their gender. Backers of the measures say that trans girls are a threat to women’s sports, and some of them are using Title IX to argue for that exclusion. As it currently exists, Title IX is a barrier to full trans inclusion in sports. 

When it was first passed, Title IX, which was modeled on parts of the 1964 Civil Rights Act, didn’t actually say anything about athletics. It was designed to address women being denied entry into educational institutions—as students, scholarship recipients, and faculty. To force schools to abide, Title IX bars federal funding for institutions that discriminate on the basis of sex. 

But athletics soon became a focus, as Congress directed the equivalent of today’s Department of Education to fill in the gaps in Title IX and issue regulations on women and girls in sports. Early on, some feminist groups and lawmakers were concerned that the regulations might create a “separate but equal” system, in contradiction to the principles of the Civil Rights Act. As Elizabeth A. Sharrow, an associate professor at University of Massachusetts, Amherst, writes in an article on the legacy of Title IX, such a system, these groups worried, would further entrench ideas about women’s inferiority and the need to protect them from harm.

Instead, feminists wanted boys and girls to play on the same teams and compete in the same leagues. In a 1974 “Legislative Alert,” the National Organization for Women wrote: “NOW is opposed to any regulation which precludes eventual integration. Regulations that ‘protect’ girls and/or women are against NOW goals and are contradictory to our stand on the ERA.” 

On the other side were conservative lawmakers, like Senator Peter Dominick (R-CO) and Senator Strom Thurmond (R-SC), who saw traditional gender roles as incredibly important, as well as the leaders of institutions like the NCAA, who felt Title IX would lead to cutbacks in men’s sports and, therefore, their revenue streams.

Those concerned with “separate but equal” programs and facilities for men and women athletes due to the perceived differences in the sexes when it came to strength and athletic ability put aside their concerns in order to move forward with regulations that would secure funding of women’s sports. By assuring lawmakers who were skittish about the idea of full integration of sports, athletic facilities, and locker rooms that the sex binary would remain in place in the application of Title IX, proponents were able to shut down criticism.

And even women’s rights advocates recognized that due to women’s systemic exclusion from athletic training programs and lack of access to coaching and resources, they could not compete with male athletes in an immediate sense. Their hope was that, over time, as the access gap closed, integration would be a more feasible reality.

“There were debates and tension around the question of segregation from the start, yet because policymakers settled on separate, sex-segregated sports, we have actually forgotten that history and have imagined that the solution of segregation has managed to solve all of those problems of exclusion,” Sharrow tells me. “That, to me, when you think about the 50th anniversary moment, is a real tension point.” 

Policy has political and cultural impacts that shape our accepted ideas about the world. Today, it’s hard to imagine any other system of organizing sports—on any competitive level—besides gender segregation. Because Title IX made athletic sex-segregation the law of the land, it actually reinforced “strict ideas about fundamental sex difference into the archive of policy,” Sharrow writes. By focusing on the body as a means of determining categorization, and therefore protection, Title IX inadvertently codified the idea of binary sex categories—and binary sex difference—into law.

Yet there are unresolved questions around Title IX and its application that were never fully settled. Among them, Sharrow says: What defines a “woman athlete,” and where does biology fit into these categories?

Over the years, athletes have bumped up against those questions, and that’s especially true as more young people come out as transgender and seek to play on teams in line with their gender identities. 

To name a few examples: In 2021, 11-year-old Becky Pepper-Jackson was prohibited from trying out for the girls’ cross-country team in West Virginia because of a law barring trans girls from competing against their cisgender counterparts—even though, as the ACLU pointed out in a lawsuit, Pepper-Jackson was on puberty blockers and had never started testosterone-driven puberty. And this past year, Lia Thomas, a transgender swimmer on the University of Pennsylvania’s Divison 1 team, made national headlines after winning an NCAA swimming title in the women’s division.

Thomas was allowed to compete against cisgender women under NCAA policy, which required transgender women to undergo 12 months of hormone therapy to become eligible for competition. Going forward, however, the NCAA has said it will defer to national and international bodies governing each sport. Earlier this year, USA Swimming updated its policy to require 36 months of hormone therapy and evaluation by a three-person panel. Last week the International Swimming Federation (FINA) passed a total ban on trans women’s participation in women’s events. (FINA also hinted at the possibility of an “open competition” category.) 

Across the country, Thomas’ name has been used by legislators and anti-trans lobbyists seeking to ban transgender people’s participation in sports. And proponents of restrictive laws are also using Title IX as a cudgel. “This legislation is just a way to honor those people who worked hard to get Title IX,” Wendy Schuler, a lawmaker in Wyoming who sponsored an anti-trans bill, told the Los Angeles Times. “For 50 years we’ve had the opportunity to compete as females and I just would hope we continue that fight.”

And then there’s the Women’s Sports Policy Working Group, an anti-trans advocacy group that includes several former Olympians, including Nancy Hogshead-Makar, a former Olympic swimmer and Title IX attorney who argues that Title IX is designed to protect cisgender girls only from discrimination in sports. Groups like the WSPWG claim that kids assigned male at birth and who have gone through any part of a testosterone-driven puberty have an unfair advantage and potentially endanger cisgender girls, an argument that relies on the fact that at the time Title IX was passed, lawmakers maintained that there were biological sex differences which necessitated the separate divisions for men and women athletes. 

Language from these groups leans heavily on the idea of “protecting” women or “saving”, the same framework that ushered in the version of Title IX feminists were concerned about 50 years ago: that, as a result of their biology, women and girls need protection, and that they don’t stand a chance to compete against people that aren’t cisgender women. It positions anyone not assigned female at birth as a threat to the women and girls who need protection, nevermind that trans women and girls are just that: women and girls.

Last week, the Department of Education issued a “notice of interpretation” stating that Title IX protects LGBTQ students from discrimination. The notice doesn’t say anything about sports directly, though it does mention “education programs and activities that receive funding from the Department.” And they’ve announced a formal review of the way the policy is enforced in order to support that interpretation. That process, however, can take time, according to Sharrow, and will do little to stop the wave of state-level anti-trans laws in the short term.

Instead, says Sharrow, Biden should proactively draw up protections that explicitly protect trans athletes in sports. “The political battle around [anti-trans bills] can only happen in the absence of federal-level laws that would set a higher bar of protection for trans people and trans students, in particular,” she says

The barriers Title IX creates for trans kids matters not just because it impacts openly transgender students—though that should be reason enough—but because it endangers gender nonconforming students, intersex students, and any student whose femininity does not conform to white, western ideals. Because Title IX relies on the cisgender girls’ body to establish categories for protection, it also requires students to declare what their embodied sex is if they are to be protected from discrimination. “So long as Title IX continues to rely on policy design that invokes binary sex as a category in athletics, public policy will fail to afford non-discrimination protections to some of the most vulnerable populations,” Sharrow writes. 

Not only that, so many kids are still discovering who they are. For students who don’t yet know they are trans, or for whom it is not safe to be out, sporting environments that allow for more integration, and do not force sex segregation onto people who don’t want it, have the capacity to be affirming spaces.

And the application and reinforcement of a false sex binary in the interpretation of Title IX allows the dichotomy to exist in other places, as well, as we have seen every time a school bathroom bill is introduced. Those bills rely on some of the same logic: that people who are assigned male at birth are threats to those who are not, and that threat is a result of their body.

“Even the things that Title IX has done, we have fallen short in realizing the full potential that is loaded inside that law,” Sharrow says. “And that’s becoming most excruciatingly visible because of the forms of exclusion that are now being visited on gender diverse people in particular. So long as we strictly believe that segregation is the only way that we can achieve non-discrimination in sports, that’s driving all sorts of different problems that that we need to acknowledge.”

THE END...

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