Commentary Human Rights

Who Owns Sports? Dissecting the Politics of Title IX

On The Issues Magazine

Arguments against Title IX are based on two premises that are, in turn, grounded in cultural tradition: 1) Men and boys are the rightful "owners" of sports, and 2) Males are superior to females in athletic ability.

Originally written by Martha Burk for On The Issues Magazine

See all our 2012 Title IX coverage here.

Title IX has been a part of our body of law for 40 years, and it has been contested legally and politically almost continuously since it was enacted. Although it applies to all educational programs receiving federal financial assistance, sports programs have drawn the bulk of the political fire. Opponents say that it is a quota system that pits women’s sports against men’s sports, and that the law is responsible for the elimination of many men’s athletic teams.

Arguments against Title IX are based on two premises that are, in turn, grounded in cultural tradition: 1) Men and boys are the rightful “owners” of sports, and 2) Males are superior to females in athletic ability.

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It is interesting to note that arguments against Title IX closely track those against affirmative action, with the built-in assumption that white men own the pool of jobs, and that any portion gained by other groups takes something from its “rightful” owner. This thinking is also the basis of claims that both programs have resulted in “reverse discrimination” against males.

In keeping with the cultural norm that men own sports, political opposition has centered on the notion that it’s a zero-sum game. Any benefit to women comes at a cost to men, objective evidence to the contrary. Men still have statistically higher participation rates in sports than women, and both men’s participation rates and the amount of money spent on men’s sports continues to rise. The number of girls playing high school sports has still not reached the participation rates boys had in 1971, the year before Title IX was passed.

Male Delusions Scapegoat Women’s Athletics

The frequent argument that expanding women’s opportunities leads to the elimination of men’s teams is another red herring. It has been shown that compliance with Title IX is not the primary reason that schools eliminate men’s teams; almost three quarters of schools that add women’s teams do so without eliminating with men’s teams. Sometimes men’s sports are eliminated because schools want to replace them with more popular sports. Some schools have eliminated men’s wrestling, tennis and gymnastics, but soccer, baseball and basketball have been added. Women’s sports have been similarly rearranged. Women’s gymnastics, fencing and field hockey have been cut and replaced many times with track, lacrosse and swimming.

The most likely reason for cutting men’s sports is that expensive men’s teams, such as football and basketball, command a disproportionate share of resources — and Title IX is a convenient scapegoat. Title IX is blamed when smaller sports are sacrificed for football and basketball budgets because it is a more politically palatable argument for school officials who do not want to own up to fiscal reality.

Wrestling is instructional. While it is a fact that wrestling programs are in decline, Title IX is not the culprit. Title IX was not enforced during the years 1984-1988 because the Supreme Court ruled in1984 in Grove City College v. Bell that only the school programs receiving direct funding were bound by Title IX. Even so, wrestling teams were being cut. The rate was actually three times higher than the previous years when Title IX was in effect, causing wrestling teams to decline from 342 to 289. Women didn’t cut men’s wrestling — predominately male athletic directors did – because they didn’t want to make far more painful and unpopular decisions, such as cutting back on football.

The “football first” culture of men owning sports has prompted Title IX opponents to argue that football should be excluded from the calculus altogether because revenue from football funds other athletics. In fact, while the lion’s share of athletic budgets goes to men’s football and basketball, it’s hard to make the case that these programs are money makers. A recent report of the National College Athletic Association (NCAA) stated that only 11 percent of the athletic programs in the Football Bowl Subdivision (the richest) made money. No programs in the Football Championship Subdivision (formerly Division I AA) operated in the black; some deficits run into the millions and losses continue to grow each year.

If the fiscal viability yardstick is subjected to honest scrutiny, the case can be made that it is fiscally irresponsible to retain football or any other sport. Indeed, if the argument that sports programs must pay for themselves is a valid one, what is to stop opponents of other educational programs, such as music and art, or for that matter, science, from applying the fiscal viability standard?

Another claim, this one based on the premise that males are better athletes, is that girls are not as interested in sports as boys are. There is no evidence to back this claim. In fact, from the ages of six to nine, boys and girls are equally interested in sports. But participation opportunities for girls begin to decline sharply after age nine. Rather than lack of interest, it is likely that a lack of accessibility contributes to the drop-off of female participation because boys have approximately twice as many opportunities to join a team. Greater opportunity goes hand-in-hand with better training facilities and practice fields, better game and practice times, and more coaching and support staff. This lack of encouragement through limiting accessibility results in a probability about six times greater for girls dropping out of sports than boys by the age of 14. That, in turn, translates to fewer female high school and college athletes.

All Students Entitled to Locker Room Rights

The most politically charged rhetoric used by opponents of Title IX asserts that it is a “quota system” for women’s sports. Title IX is, indeed, not a quota system; only one of the three possible methods of compliance involves proportionality: stating that opportunities and participation of male and female students at the institution are to be “substantially proportionate” to their respective full-time undergraduate enrollments. The majority of schools cannot pass this test, and, in fact, don’t even try to use it to demonstrate compliance with Title IX. Besides, one could just as easily make the argument that Title IX was enacted to overcome a quota system that afforded males more opportunities than could be justified by their school participation rates overall (for example, males in 1972 were 51.5 percent of the student population and were granted 84.4 percent of athletic opportunities).

Perhaps the most disingenuous claim by opponents is that women are no longer subject to the discrimination they endured before Title IX was enacted so Title IX is no longer needed. Despite the gains made under Title IX, women’s sports are still lagging behind men’s sports, and 40 years after its passage, around 80 percent of colleges and universities are still not in compliance with the law. The only way to bring these schools into compliance and achieve parity for women is for stronger enforcement — and resistance to efforts to weaken Title IX based on rhetoric grounded in the twin premises of men’s ownership and superior ability. While loss of federal funding is theoretically the outcome for schools that don’t comply, in reality, this simply does not happen. If loss of funds were a true possibility and not just an unenforced threat, more schools would step up their efforts at compliance.

Even though Title IX has been under attack since its inception, political and legal realities may be changing the debate. We have now had a generation of female athletes spawned by Title IX, which, in turn, made basketball’s WNBA, the Women’s Professional Volleyball League and Women’s United Soccer Association (2000-2003) possible.

Parents do not want to lose these opportunities for their daughters. They are increasingly aware of the discrepancies between resources for boys’ and girls’ sports and increasingly aware that these discrepancies are illegal. This is made possible through the passage of state level laws such as the New Mexico School Athletics Equity Act, mandating disclosure of resources allocated to sports teams by gender, including the number of coaches and what they are paid, physical facilities, and equipment and transportation outlays.

For Title IX to truly fulfill its promise, we must not only strengthen enforcement and guard against weakening amendments and rule changes, but we must also change the paradigm of sports participation. Instead of thinking of the pool of athletic opportunities as belonging to males, who must “give up” a valuable commodity that they own to accommodate outsiders (females), we must think of the pool as belonging to all students, who are equally entitled to the benefits of participation. Viewed in this way, males have traditionally commanded a disproportionate share, and Title IX is one way to guarantee that in expanding overall opportunities, women’s share grows until it reaches parity.

Martha Burk is Director of the Corporate Accountability Project for the National Council of Women’s Organizations. She is also Money Editor for Ms. Magazine and producer/host of the public radio show Equal Time. Her new book is Your Voice, Your Vote: The Savvy Woman’s Guide to Power, Politics, and the Change We Need.

News Law and Policy

Virginia School Board Wants Supreme Court in Fight Over Transgender Student Bathroom Access

Jessica Mason Pieklo

The Gloucester County School Board wants the Supreme Court to decide whether federal law requires schools to let transgender students access facilities such as bathrooms that conform to their gender identity.

A Virginia school board will ask the U.S. Supreme Court to step into the fight over bathroom access for transgender students in the first real legal test of the Obama administration’s agency actions on the issue.

The case involves Gavin Grimm, a Gloucester County student who, in 2015, challenged his school’s policy of separating transgender students from their peers in restrooms and mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity.

As previously reported by Rewire:

Grimm’s attorneys at the American Civil Liberties Union argued that the restroom policy, which effectively expels transgender students from communal restrooms and requires them to use “alternative … private” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

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The school board defended its policy, arguing that it was consistent with federal law and that it protected the privacy rights of other students at Grimm’s school.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy. A lower court initially sided with the school board; Grimm’s attorneys appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed the lower court and ruled that Grimm’s lawsuit against his school could proceed.

On Tuesday the Fourth Circuit agreed to put its decision on hold while the school board filed a petition asking the Supreme Court to step in. The board is arguing that the Obama administration has gone too far on transgender rights, beginning in 2012, when it issued an initial agency opinion that refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

In October 2015 the administration took that opinion one step further and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy specifically violated federal law. Then, in May this year, the administration expanded that opinion into a directive. Though it still didn’t have the force of law, the directive put all schools receiving federal funding on notice: Should they deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law and subject to lawsuits. The Fourth Circuit relied heavily on this guidance in siding with Grimm earlier this year.

It is not clear whether the Roberts Court will step into the issue of transgender students’ rights at this time. So far, no other federal appeals court has weighed in on the issue.

Meanwhile, 22 states have filed a lawsuit challenging the Obama administration’s 2016 directive, arguing that the administration overstepped its authority. That lawsuit is also in its early stages.

Both Grimm’s lawsuit and the states’ lawsuit in response suggest the issue of transgender rights and sex discrimination will end up before the Roberts Court at some point.

Commentary Politics

No, Republicans, Porn Is Still Not a Public Health Crisis

Martha Kempner

The news of the last few weeks has been full of public health crises—gun violence, Zika virus, and the rise of syphilis, to name a few—and yet, on Monday, Republicans focused on the perceived dangers of pornography.

The news of the last few weeks has been full of public health crises—gun violence, the Zika virus, and the rise of syphilis, to name a few—and yet, on Monday, Republicans focused on the perceived dangers of pornography. Without much debate, a subcommittee of Republican delegates agreed to add to a draft of the party’s 2016 platform an amendment declaring pornography is endangering our children and destroying lives. As Rewire argued when Utah passed a resolution with similar language, pornography is neither dangerous nor a public health crisis.

According to CNN, the amendment to the platform reads:

The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the life [sic] of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography which [is] closely linked to human trafficking.

Mary Frances Forrester, a delegate from North Carolina, told Yahoo News in an interview that she had worked with conservative Christian group Concerned Women for America (CWA) on the amendment’s language. On its website, CWA explains that its mission is “to protect and promote Biblical values among all citizens—first through prayer, then education, and finally by influencing our society—thereby reversing the decline in moral values in our nation.”

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The amendment does not elaborate on the ways in which this internet monster is supposedly harmful to children. Forrester, however, told Yahoo News that she worries that pornography is addictive: “It’s such an insidious epidemic and there are no rules for our children. It seems … [young people] do not have the discernment and so they become addicted before they have the maturity to understand the consequences.”

“Biological” porn addiction was one of the 18 “points of fact” that were included in a Utah Senate resolution that was ultimately signed by Gov. Gary Herbert (R) in April. As Rewire explained when the resolution first passed out of committee in February, none of these “facts” are supported by scientific research.

The myth of porn addiction typically suggests that young people who view pornography and enjoy it will be hard-wired to need more and more pornography, in much the same way that a drug addict needs their next fix. The myth goes on to allege that porn addicts will not just need more porn but will need more explicit or violent porn in order to get off. This will prevent them from having healthy sexual relationships in real life, and might even lead them to become sexually violent as well.

This is a scary story, for sure, but it is not supported by research. Yes, porn does activate the same pleasure centers in the brain that are activated by, for example, cocaine or heroin. But as Nicole Prause, a researcher at the University of California, Los Angeles, told Rewire back in February, so does looking at pictures of “chocolate, cheese, or puppies playing.” Prause went on to explain: “Sex film viewing does not lead to loss of control, erectile dysfunction, enhanced cue (sex image) reactivity, or withdrawal.” Without these symptoms, she said, we can assume “sex films are not addicting.”

Though the GOP’s draft platform amendment is far less explicit about why porn is harmful than Utah’s resolution, the Republicans on the subcommittee clearly want to evoke fears of child pornography, sexual predators, and trafficking. It is as though they want us to believe that pornography on the internet is the exclusive domain of those wishing to molest or exploit our children.

Child pornography is certainly an issue, as are sexual predators and human trafficking. But conflating all those problems and treating all porn as if it worsens them across the board does nothing to solve them, and diverts attention from actual potential solutions.

David Ley, a clinical psychologist, told Rewire in a recent email that the majority of porn on the internet depicts adults. Equating all internet porn with child pornography and molestation is dangerous, Ley wrote, not just because it vilifies a perfectly healthy sexual behavior but because it takes focus away from the real dangers to children: “The modern dialogue about child porn is just a version of the stranger danger stories of men in trenchcoats in alleys—it tells kids to fear the unknown, the stranger, when in fact, 90 percent of sexual abuse of children occurs at hands of people known to the victim—relatives, wrestling coaches, teachers, pastors, and priests.” He added: “By blaming porn, they put the problem external, when in fact, it is something internal which we need to address.”

The Republican platform amendment, by using words like “public health crisis,” “public menace” “predators” and “destroying the life,” seems designed to make us afraid, but it does nothing to actually make us safer.

If Republicans were truly interested in making us safer and healthier, they could focus on real public health crises like the rise of STIs; the imminent threat of antibiotic-resistant gonorrhea; the looming risk of the Zika virus; and, of course, the ever-present hazards of gun violence. But the GOP does not seem interested in solving real problems—it spearheaded the prohibition against research into gun violence that continues today, it has cut funding for the public health infrastructure to prevent and treat STIs, and it is working to cut Title X contraception funding despite the emergence of Zika, which can be sexually transmitted and causes birth defects that can only be prevented by preventing pregnancy.

This amendment is not about public health; it is about imposing conservative values on our sexual behavior, relationships, and gender expression. This is evident in other elements of the draft platform, which uphold that marriage is between a man and a women; ask the U.S. Supreme Court to overturn its ruling affirming the right to same-sex marriage; declare dangerous the Obama administration’s rule that schools allow transgender students to use the bathroom and locker room of their gender identity; and support conversion therapy, a highly criticized practice that attempts to change a person’s sexual orientation and has been deemed ineffective and harmful by the American Psychological Association.

Americans like porn. Happy, well-adjusted adults like porn. Republicans like porn. In 2015, there were 21.2 billion visits to the popular website PornHub. The site’s analytics suggest that visitors around the world spent a total of 4,392,486,580 hours watching the site’s adult entertainment. Remember, this is only one way that web users access internet porn—so it doesn’t capture all of the visits or hours spent on what may have trumped baseball as America’s favorite pastime.

As Rewire covered in February, porn is not a perfect art form for many reasons; it is not, however, an epidemic. And Concerned Women for America, Mary Frances Forrester, and the Republican subcommittee may not like how often Americans turn on their laptops and stick their hands down their pants, but that doesn’t make it a public health crisis.

Party platforms are often eclipsed by the rest of what happens at the convention, which will take place next week. Given the spectacle that a convention headlined by presumptive nominee (and seasoned reality television star) Donald Trump is bound to be, this amendment may not be discussed after next week. But that doesn’t mean that it is unimportant or will not have an effect on Republican lawmakers. Attempts to codify strict sexual mores are a dangerous part of our history—Anthony Comstock’s crusade against pornography ultimately extended to laws that made contraception illegal—that we cannot afford to repeat.