No Celebration: Nearly 50 Years of Title IX Equality for Women at Risk

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By Morgan Schlesselman, CWA Government Relations Intern

June 23, 2021, marks the 49th anniversary of the passage of Title IX of the Education Amendments Act of 1972, which states that “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 any education program or activity receiving Federal financial assistance.”

Title IX was spearheaded by former Congresswoman Patsy Mink (D-Hawaii) and Sen. Birch Bayh (D-Indiana), who believed that women were entitled to equal opportunities in education and athletics. As Birch Bayh put it, “It’s unfortunate. Title IX is rather simple: don’t discriminate on the basis of sex.”

Lin Dunn, a women’s professional and college basketball coach for more than 40 years, said, “I honestly believe that the package of Title IX, that piece of legislation, is one of the most powerful pieces to empower and impact women ever.” Dunn is correct; before Title IX was enacted, women received fewer than 10 percent of all medical and law degrees, and only one in 27 high school girls played sports. Now, one in two high school girls play sports, and women possess more than half of the bachelor’s and graduate degrees in this country. According to the Women’s Sport’s Foundation, female participation in sports leads to better grades, higher graduation rates, fewer unplanned pregnancies, higher levels of confidence and self-esteem, lower levels of depression, and more positive body image than females who do not play sports.

However, the Biden Administration is actively working to overturn the equal rights women and girls gained under Title IX.  Today, the U.S. Department of Education’s Office for Civil Rights sent a Letter to Educators on the 49thAnniversary of Title IX  explaining that “sex-based discrimination” includes gender identity and sexual orientation. This change in definition to include gender identity puts all the progress of the last 49 years at risk. Allowing biological males to compete in sports for women and girls means less space for female athletes on teams, the loss of scholarships, and the loss of awards and other opportunities.

It has been well established that the male body is naturally bigger, stronger, and faster than the female body. The physical advantage men have is what led to the creation of separate categories for women’s sports to provide a fair playing field and equal opportunities for female athletes. It has not taken long to see the impact of allowing biological males into female sports. In just three seasons, the Connecticut Interscholastic Athletic Conference’s policy that allows any male self-identifying as a girl to compete in girls’ sports led to two transgender runners taking 15 women’s state championship titles and more than 85 opportunities for higher level competitions from female track athletes.

Biological males are not just taking opportunities and championships from females at the high school level, but college as well. In May 2019, a transathlete from Franklin Pierce University became the first biological male to win an NCAA track and field title in the women’s  400-meter hurdles. Just sixteen months prior, the same athlete had competed on Franklin Pierce’s men’s team. With the re-definition of sex under Title IX and a decade-old NCAA policy that embraces the inclusion of transgender athletes in women’s sports, female athletes will face a new barrier to equal opportunity in their sport.

Seeing the potential impact of these policies on female athletes, many states are working to pass legislation requiring participation in sports based on biological sex. This year, governors in seven states signed bills into law. However, these states now face the threat of being stripped of the opportunity to host NCAA championships. The NCAA has pledged “only locations where hosts can commit to providing an environment that is safe, healthy and free of discrimination should be selected. We will continue to closely monitor these situations to determine whether NCAA championships can be conducted in ways that are welcoming and respectful of all participants.” In the eyes of the NCAA, granting females fairness and equal opportunity to compete only against biological females is “discrimination.”

While many state legislatures and governors have taken initiative to protect fairness in women’s sports, the Biden Administration’s Department of Justice (DOJ) is making their priorities to do the opposite very clear. In a statement of interest in B.P.J. v. West Virginia State Board of Education, the DOJ argues that any law that bans transgender girls from competing in female sports is unconstitutional because it violates Title IX and the Equal Protection Clause of the 14th Amendment.

Title IX was once a huge victory for women’s rights, equality, and female empowerment. Today, with the push to redefine what it means to be a woman, female athletes are facing a new fight for equality. Is this what Congresswoman Mink and Senator Bayh had in mind?