A2: Gender Discrimination

We can retain sports and work to avoid masculine norms

Deborah Brakem Assistant Professor, University of Pittsburgh School of Law, University of Michigan Journal of Law Reform, THE STRUGGLE FOR SEX EQUALITY IN SPORT AND THE THEORY BEHIND TITLE IX+, p. 145-6

Male students who seek to participate in traditionally female sports may also represent a challenge to the gender ordering of sports. And yet, the rationale underlying the regulation - preventing the displacement of female athletes from the already limited opportunities for female athletes - is important. The challenge is to degender traditionally masculine and feminine sport without undercutting the opportunities for girls and women to participate in sports. One solution would be to enable males to try out for a team offered only to female students where the denial of the sport to males rests on cultural assumptions about the sport's femininity. The concern for maintaining sufficient numbers of opportunities for female athletes could be addressed under the three-part test by continuing to ensure that the number of actual opportunities available to male and female athletes - regardless of whether they play on single-sex or mixed-sex teams - does not discriminate against female students. Such a solution would meet the goal of bolstering female athletic participation without strictly enforcing the gender composition of sports that have been deemed culturally coded as feminine, and thus inappropriate for male participation. Under this proposal, an athlete's sex would still play a role in the assignment of athletes to teams in sports that are available to both males and females, but exclusion from sports that are available only to athletes of one sex would be subject to challenge. This modification, combined with the elimination of the contact sports exemption, would challenge the construction of masculine and feminine sports. The resulting greater experience with mixed-sex teams may help to inform continued debate about the value of sex-separation in athletics more generally.

Sexism in sports can be overcome

Deborah Brakem Assistant Professor, University of Pittsburgh School of Law, University of Michigan Journal of Law Reform, THE STRUGGLE FOR SEX EQUALITY IN SPORT AND THE THEORY BEHIND TITLE IX+, p. 148-9

As argued above, schools, colleges, and universities actively shape and construct male and female athletic interest and experience in sport. In subtle and not so subtle ways, educational institutions create structures of unequal opportunity and cultures of sport that are hostile to women. Title IX law, and in particular, the three-part test, has made important inroads toward holding educational institutions accountable for their role in constructing men's and women's different relationship to sport. To an extent not widely recognized, Title IX courts have avoided some of the most blatant mistakes of sex discrimination law in other contexts, such as adopting an overly simplistic view of sex difference and its relationship to discrimination law. However, Title IX law has not yet applied these insights to capture the full complexity of gender inequality in sport.

A comprehensive theory of Title IX should address the construction of gender differences in male and female athletic interests and experiences and the construction of sport itself as a male-dominant institution. Such a theory would place a higher value on women's current sport activities and interests, and would recognize that providing equal resources and opportunities to male and female athletes is necessary but not sufficient to break down the structures of male dominance in sport. Title IX should strive to enable women to develop and pursue their own interests in sports on equal terms as men, while simultaneously breaking down the institutional constraints that suppress and mold both women's and men's athletic interests to fit a model that is neither intrinsic nor fully chosen.

Daunting as this task is, it is not without cause for hope. Because sport's relationship to masculinity and femininity is socially constructed, there is the potential within sport for resistance and transformation. How men and women (and boys and girls) participate in sports, that is, the practice of sport, affects the structures and cultures within sport. When women (and men) challenge the boundaries of gender expectations in sport, sport's connection to masculinity is weakened. At the same time, as women's sports participation is valued more highly, through increased resources and better treatment, the celebration of sport is less connected to the celebration of masculinity, and sport becomes an activity that is equally valued for both genders. Title IX can play an integral role in this process, if its underlying theory is fully appreciated and applied.

Alternative configurations of sports can overcome gender discrimination

Jessica Jay, 1997, Judicial Law Clerk, The Honorable Peter H. Ney, Colorado Court of Appeals; J.D., Vermont Law School, 1997; M.S.E.L., Vermont Law School, 1998; A.B. Bowdoin College, 1992. Special thanks to Professor Susan Apel for her guidance and to my colleagues in "Women and the Law." Texas Journal of Women & the Law, Women's Participation in Sports: Four Feminist Perspectives, p. 35-6

The potential solutions to the stigmatization and inferiority created by current girls' and women's athletic opportunities range from skill based co-ed teams to completely nurturing, supportive teams. It is not the purpose of this paper to identify one solution, but rather to identify problems with the existing sport opportunities for girls and women. Whatever the solutions are to the problems inherent in girls' and women's sports experiences, one thing is clear -- the current model for sports participation offered to girls and women alike is a male model, with no alternatives. Additionally, presumptions of girls' and women's inferiority are built into this model, and whether intentional, or negligent, these presumptions must be challenged and removed: by leveling the playing field and seeing how girls with raised expectations can compete on co-ed teams, changing sports to create more female-physique-oriented positions, or simply offering more interconnected and less competitive alternatives to today's current sports opportunities.

A new version of the Nike advertisement states: "as a baby girl, some will give you a doll; some will give you a ball; . . . some will give you a chance." It is time for women and girls to stop begging for opportunities to play sports they might not even enjoy or succeed at, and time to stop accepting without question the male model of sports. It is also time to stop waiting for someone to give them a chance. It is time for girls and women to challenge the model and create one of their own.