Weekend Reads: 50 Years of Title IX

by Kevin Schofield

This week marks the 50th anniversary of Title IX, which was signed into law by President Richard Nixon on June 23, 1972. The landmark legislation is comprised of a single sentence:

"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."

The law was enacted to ensure that both men and women had equal access to all federally funded programs, including museums and libraries, but has had its greatest impact on K-12 schools and universities. While the law itself is brief, the administrative regulations and guidance it has spawned are voluminous, as the Office for Civil Rights, the Department of Education, and other federal regulators have weighed in on its application.

A major thrust of Title IX enforcement has been on school sports programs, which historically have heavily favored men's sports over women's in terms of access, facilities, promotion, and funding. The federal Title IX regulations established in 1979 provide for a three-part test of whether a school's sports program meets the Title IX requirement, in which it must meet any one of the three parts:

1. Female athletes have opportunities that are proportional to their enrollment in the educational institution.
2. If disproportionately more athletic opportunities are offered to male athletes than female athletes, the school must demonstrate that it has been adding teams and athletic opportunities over time to address the shortfall. This is intended to recognize that it takes time to raise funds and build additional facilities in order to provide equal opportunities.
3. A school must show that it is providing teams and opportunities to satisfy existing interest and that those teams operate at a sufficiently competitive level.

A new report by the Women's Sports Foundation assesses the progress made in reaching Title IX's goal of equal access and opportunity in sports. Not surprisingly, it finds that while there has been substantial progress in closing the gaps compared with 1972, there are still substantial gaps between men's and women's sports at both the K-12 and college level. They found that 86% of NCAA institutions across all divisions offer higher rates of athletic opportunities to male athletes disproportionate to their enrollment, and of the $241 million spent on recruiting athletic talent to compete at the college level, only 30% of it was spent on recruiting female athletes. Male athletes also received $250 million more in athletic scholarships in 2019—2020. Female college athletics are also underserved by promotional efforts, and coaches of women's teams receive a much smaller percentage of salary than those for men's teams. The inequities still exist at the high school level as well, where they found that high school girls received 42% of athletic opportunities despite comprising 48.5% of full-time students enrolled.

The report has 10 pages of recommendations for changes at every level, but among them is that the second prong of the three-part test should be removed: It argues that after 50 years, a school has had plenty of time to make provisions for equal access and opportunity and no longer should be allowed to phase in changes.

But the report goes beyond a simple comparison of men's and women's sports, acknowledging that our society's views on gender no longer reflect a simple binary "male or female" division. Notably, Title IX itself doesn't provide a binary definition of sex: It simply says "on the basis of sex." The report advocates for the perspective that Title IX provides for equal opportunities for nonbinary and transgender athletes.

It also notes that school sports have an intersectionality problem as well, in that Women of Color have fewer athletic opportunities than either women in general or People of Color in general. And the report cites Kimberl Crenshaw's foundational work in explaining why a "single-axis" law such as Title IX, which only looks at gender, can make it more challenging to assert the rights of an intersectional group that is experiencing discrimination. Similarly, it makes the case that there are significant gender gaps among athletes with disabilities, noting that 90% of women with disabilities are not active in sports, and boys with disabilities consistently participate in sports at higher rates than girls with disabilities.

The report also looks at two emerging issues with student sports. First, it highlights the recent change allowing student athletes to profit from their own names, images, and likenesses — yet 60—64% of endorsement deals are going to men. Second, it notes the rapid rise in recognition and participation in e-sports, and the current lack of guidelines for schools to ensure equal access to participation opportunities. "Title IX obligations do not cease simply because the form of sport involves a glass monitor and virtual playing field," the report says.

The extensive recommendations in the report including ensuring that administrators, coaches, and athletes are all better educated on the rights and responsibilities imposed by Title IX; women and nonbinary people are recruited into sports leadership positions; all facilities should enable access to all athletes in a manner that make them feel both comfortable and safe; gender bias should be reduced in the workplace and on the athletic field; sports environments and policies should be welcoming and affirming for youth who are transgender or don't identify with a male or female gender; and all coaches should be trained about emotional and physical abuse and how "appropriate motivation techniques can reduce the possibilities for abusive environments."

Has there been progress over the first 50 years of Title IX? Undoubtedly there has; according to the report, "The work of five decades of Title IX's impact is writ large in every sector of American society." Yet the goalposts are still distant, and we continue to learn about how we are compelled to reinterpret parts of the landmark law as our society evolves.

50 Years of Title IX: We're Not Done Yet

Featured image by Debby Wong/Shutterstock.com.