St. Mary's Law Journal


There is much talk these days of promoting “equity” rather than “equality.” When applied outside athletics, Title IX promotes non-discrimination, usually associated with equality. As it has been applied to sports, though, it may be our most prominent “equity” statute, making sure each sex gets its fair share.

The questions this article seeks to address are legal ones that the debate about trans females seems to bring to the fore. How did we start with a statute whose language looks very similar to every other civil rights statute—and, indeed, that acts just like every other civil rights statute outside of the sports arena—and end up with mandatory preferences?

Part of the answer seems obvious. The statute is in the language of non-discrimination, which is generally understood to preclude the decision-makers from using the prohibited criteria. In short, it is a statute that was simply not designed for sports, which have traditionally been segregated by sex. It had to be “interpreted” by administrative exposition to achieve a different goal: equal results (or, if you prefer, equity).

But the administrative interpretations (at least the ones well known to the public) and court decisions could not be explicit and clear about this. They do not specifically prohibit unisex sports teams in which skill is the criteria for selection and determines the number of men and women on the teams. Only as phrases like “equal athletic opportunity,” “effectively accommodate the interests and abilities” of members of both sexes, and “participation opportunities,” are explained over time does it become a bit clearer that that is the message. In a world in which Title IX’s language was interpreted in the same fashion as other similarly-worded statutes, any sex-segregated sports system that provided “varsity opportunities” for females above what they would achieve in a nondiscriminatory unisex sports universe—or any female-only teams at all if females could compete for spots on any set of reasonably selected sports teams for which males were eligible—would be deemed a system of discriminatory preferences (albeit most likely meeting heightened scrutiny and thus legal) for females. In our world, it is considered discrimination against females unless it meets one part of the three-part test for effective accommodation of interests and abilities of both sexes.

The principle is an interesting one, and perhaps one, as I have suggested, that should be adopted in sports—and maybe other areas—where group differences are stark. Congress could pass laws to that effect. But that would require Congress (and us) to face the fact that the law it passed is not, at least insofar as sports are concerned, the law we have.

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St. Mary's University School of Law


Brent. A. Bauer

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