Title IX And The Continuing Fight For Gender Equity In Athletics

• Published date: 13 October 2021
• Subject Matter: Consumer Protection, Media, Telecoms, IT, Entertainment, Compliance, Education, Sport
• Law Firm: Phillips Nizer
• Author: Ms Jan L. Bernstein and Gregory L. Grossman

The right of every girl to have an equal opportunity to participate in sports-one of the many guarantees of Title IX of the Education Amendments of 1972-remains unfulfilled even as we enter 2021. The fight for this right has been taken up over the past decades by numerous brave individuals and social justice organizations. Yet the law's promise of equality remains out of reach for far too many talented and deserving girls, especially girls of color, including in New Jersey.

One of the first cases giving girls more opportunities in sports was Nat'l Organization for Women v Little League Baseball, Inc.¹ It held that girls, ages 8-12, must be permitted to play in Little League. Little League's arguments, including that it was reasonable for it to spend resources only on children who would use baseball skills later in life, were rejected as embedded in "stereotyped conceptions" as to the "needs, capabilities and aspirations for the female, child or woman." There was a gigantic backlash against the ruling-most Little League teams suspended play altogether and some disbanded.

This case occurred about the same time as Title IX was passed by the U.S. Congress. Title IX, a 37-word law which prohibits discrimination on the basis of sex in federally-funded programs, was passed in 1972 but did not become effective until later that decade. And those 37 words did not mention sports. It was not until 1975, when the Title IX regulations were issued, that the law was applied to sports. After lawsuits and public debates, the regulations became effective, requiring that opportunities to play sports, athletic scholarship dollars, and benefits and services afforded athletes be equitable for females and males.

We have come a long way since Title IX was passed almost 50 years ago; however, girls in sports are still not treated equally at either the interscholastic or the intercollegiate levels.² Girls of color, in particular, are provided fewer opportunities to participate in sports than white girls, white boys, and boys of color.³ While the Department of Education's Office for Civil Rights enforces Title IX at the federal level, states have Title IX enforcement obligations, and numerous private lawsuits since the early 1980s have been brought to force schools to comply with the law, there is insufficient attention paid to and widespread non-compliance with the law.

Most lawsuits have focused on the intercollegiate level. But dedicated sports devotees and women social justice advocates, along with their respective organizations, are fighting hard to make fundamental changes at the high school level, starting in New Jersey. They are engaged in this fight because they know the fundamental, life-long skills that sports teach girls, such as hard work, self-confidence, and leadership, as well as the health and academic benefits that they provide. They form the core of a team seeking to bring about change at the middle and...