Speaking of Women's Rights: Leveling the Playing Field Beyond the Gender Binary: How Title IX Must Continue to Evolve

Wednesday, August 23, 2017

Leveling the Playing Field Beyond the Gender Binary: How Title IX Must Continue to Evolve

Jillian Bearden, pro cyclist and transgender woman. Photo: Hyoung Chang, The Denver Post
By Lulu Klebanoff

Title IX was signed into law in 1972, during a time of political and social upheaval, as the US felt the effects of the civil rights, anti-Vietnam War, gay rights, and second-wave feminist movements. It validated decades of women’s rights activism and secured improved education for the women of the future. It states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under an educational program or activity receiving Federal financial assistance.”

Forty-five years have passed, and we are yet again in a time of political and social upheaval, with the Black Lives Matter, reproductive justice, and trans rights movements coming into conflict with a federal government that is increasingly hostile to social justice. It is a fitting time to re-examine Title IX—how it has improved education for people of all genders, and where it still fails.

Title IX requires educational institutions that receive any federal funding (i.e. public elementary, middle, and high schools, and nearly all colleges and universities) to provide equal access to all educational programs for all people, regardless of gender. Title IX allows women to earn degrees in medicine or law at graduate schools that previously wouldn’t have admitted them, to study disciplines like math and science that were previously considered beyond their abilities, and to seek remedies from their schools for the previously unspeakable harms of sexual harassment and assault experienced on campus. And, perhaps most notably, it allows them to play on school sports teams, something almost unheard of before Title IX was passed.

Title IX requires that schools provide equal athletic participation opportunities, equal athletic scholarships, and equal access to resources such as locker rooms, equipment, coaching, etc. These requirements are necessary to provide women with access to the benefits of sports that they were previously locked out of: opportunities to exercise, build strong friendships, practice teamwork and leadership, and compete. And participation in sports has benefits off the field as well. Studies show that athletes are less stressed, are more likely to graduate, have higher self-esteem, and are less likely to smoke or use drugs. So it is a great victory for women that Title IX caused girls’ participation in high school athletics to increase tenfold and women’s participation in college athletics to increase sixfold between 1972 and 2012.

But Title IX’s work is not yet done. 80-90% of all educational institutions do not meet Title IX’s athletics standards (though they can still retain federal funding by claiming they demonstrate a history and continuing practice of expanding opportunities for women, or that they are effectively accommodating women’s interests and abilities). And, according to the National Women’s Law Center, 1.3 million fewer girls play sports in high school than boys, and only 28% of the money spent on athletics at NCAA schools is spent on women’s athletics. 

The situation for trans students is even more dire.

The fight for gender equality has expanded since 1972 to include transgender and nonbinary people, but Title IX has not expanded to protect trans students. Many argue that Title IX should apply to trans students, because sex includes gender identity, and thus discrimination against trans people is discrimination “on the basis of sex.” Several cases regarding Title VII—which focuses on employment rather than education—have set a precedent for this concept. In one such case, the Justice Department refused to hire Mia Macy, a trans woman, specifically because she was transgender. The Equal Employment Opportunity Commission ruled in her favor, declaring that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on… sex.’” It seems logical this would apply to education as well, but no Title IX cases have yet set such a precedent. This means Title IX currently does little for the many trans students who are excluded from high school and college athletics.

Young trans men and women are often kept from playing on teams that match their gender identity. Some are barred from competing by coaches and administrators, who act as unregulated gatekeepers to the world of sports. Some, like Mack Beggs, a trans male wrestler who won the 2017 Texas state championship, are forced to compete on teams of their assigned gender by state athletic associations. And some are kept out of competition for at least a year (or sometimes entirely) by the NCAA’s policy for trans women that requires a level of medical transition difficult for many to achieve. And young nonbinary athletes are ignored by policies entirely, forcing them to make a difficult choice between competing on a gendered team and not playing at all.

Trans Americans face no shortage of serious issues, such as alarming rates of physical and sexual assaultsystematic criminalization, and dehumanization by “bathroom bills” and military bans. But the way we treat trans people in sports is an especially powerful litmus test for not only the status of trans rights, but also the status of gender as a whole in the US. Policies like the International Olympic Committee’s and similar US state policies, that require extensive legal and medical transition for trans women to compete in women’s athletics, reveal an underlying assumption that “male” bodies are inherently superior to “female” bodies. While such physical differences do exist on average (the average cis man is stronger and less flexible than the average cis woman, advantaging men in sports like sprinting and women in sports like gymnastics), this is a very limited view of human biology and of what factors contribute to athletic ability.

Biological sex is less binary than most people believe. Erin Buzuvis, a professor at the New England University School of Law, describes sex as a continuum, rather than a binary, in her paper “Caster Semenya and the Myth of a Level Playing Field.” Even ignoring gender identity—which may actually be inappropriate, as scientific study increasingly suggests that gender identity is biologically ingrained, and thus a part of biological sex—sex is a combination of chromosomes, hormones, and genitalia. All of these, especially hormone levels, vary widely—even chromosomes can be XO, XXY, XYY, XXX, or differ on a cell-by-cell basis—and can match up differently in intersex people. (Like people with Androgen Insensitivity Syndrome who have XY chromosomes but lower testosterone levels than the average woman, and thus externally appear female, or like Dutee Chand.) Professor Buzuvis further points out that segregating people by sex doesn’t control for other athletic advantages of birth, like height, longer or shorter limbs, or extensive access to coaching from a young age.

So while dividing sports by sex does make sense as a strategy to maintain a level playing field, we must recognize that it is an imperfect and arbitrary system. Once we recognize this, it becomes clear that enforcing the gender binary in high school and collegiate athletics doesn’t truly promote “fairness,” and instead just excludes trans students from the physical, emotional, and educational benefits of sports. 

This is clear to the Washington Interscholastic Athletic Association, whose policy on trans athletes is one of the most progressive in the country. All athletic organizations in Washington State are required by the WIAA to allow every student athlete to compete on a team consistent with their gender identity, and to follow a non-invasive, psychologically based investigation process should the need to verify a student’s asserted gender identity arise. Establishing similar policies in other states would be a vital step towards extending Title IX to people of all genders and truly eliminating gender as a factor in education.

Lulu Klebanoff is a legal intern at Legal Voice, and a rising sophomore at Yale University. In her free time she loves doing improv, writing, petting dogs, and slowly dismantling the heteropatriarchy. She once broke her toe by dropping a 25 pound weight on it, and subsequently stopped weightlifting.