Challenging Gender in Single-Sex Spaces: Lessons from a Feminist Softball League

This Article explores transgender inclusion within adult recreational women’s leagues by using the example of the Mary Vazquez Women’s Softball League (MVWSL), in Northampton, Massachusetts. A MVWSL policy addressing transgender inclusion became necessary due to a noticeable increase in gender-identity diversity. The resultant policy respects the league’s core lesbian constituency by providing individuals with the freedom to acknowledge openly a gender identity that has or is evolving from lesbian to something else, and reflects the league’s founding feminist principles by refusing to define for others the suitability of a women’s community. The Author demonstrates the successful creation of a policy based on internal principles and values rather than external ones, and defines inclusion and prohibits discrimination based on gender identity. This application can be applied in other sporting contexts that separate players by sex to determine the values-driven process of defining who is eligible in each category or, when separation is necessary, to promote the objectives of the leagues, particularly when such a policy is absent from public law

A for Effort: Evaluating Recent State Education Reform in Response to Judicial Demands for Equity and Adequacy

In this Note, the Author examines measures recently enacted by New Hampshire and Vermont in response to judicial mandates for education reform. By implementing district reform measures in demographically similar environments, the reform efforts of these two states provide a valuable perspective from which to examine the education finance reform. Evaluating the experiences of these two New England states, as well as those of other states committed to education finance reform, the author contends that successful reform measures must incorporate elements of both equity and adequacy. Specifically, the Author proposes that both states\u27 implementation of a statewide property tax is a progressive step toward equality in education and fairness in taxation. The Author concludes that a state committed to school finance reforms that are both fair and effective should expand revenue sources in order to arrive at per-pupil expenditures that will ensure equity and adequacy

Title IX Feminism, Social Justice, and NCAA Reform

This Article discusses social justice feminism as it applies to gender discrimination in collegiate and scholastic athletics in the context of Title IX requirements. Title IX activists today are primarily concerned with securing equal resources and opportunities for women in a college athletic environment. Today, that environment is becoming increasingly commercialized; this presents a Title IX problem because it creates an incentive to invest more athletic department resources into certain men’s athletic programs instead of distributing them equitably to women’s (and other men’s) programs. In addition, the NCAA is presently considering or has recently undertaken deregulation initiatives in a variety of areas, further increasing the incentives for college athletic departments to devote more resource to favored men’s sports. The Article looks to social justice feminism as a lens through which to imagine Title IX advocates’ response to the system\u27s trend toward growing commercialization and deregulation. This position takes into account race-based and other forms of subordination created by that system in addition to gender discrimination. To make its case, the Article explores the history of athletics as a tool of white patriarchy and the “inter-relationships between interlocking oppressions” inherent in the commercialized model of college athletics. Ultimately, the Article argues that college athletics reform should be understood not only as a Title IX issue, but as a social justice issue as well

Barriers to Leadership in Women\u27s College Athletics

Today there is an enormous gender disparity among collegiate head coaches and athletic administrators in the United States. Women fill less than a quarter of head coach and athletic director positions in college athletics and are even minorities among coaches of women\u27s teams. Few other professions are as impervious to gender integration. Leadership in college athletics is, in the words of one scholar, one of the few male bastions remaining, which raises the question: Why are women so starkly underrepresented in leadership positions within college athletics? There is no easy answer, but rather a variety of factors that exclude, deter, or cause an early exit for women who would have otherwise pursued careers in college athletics. After presenting the demographics of leadership in college athletics to illustrate this gender disparity, this Chapter considers the unique barriers women face when seeking entry to the profession, the ways in which athletic departments operate to constrain women\u27s advancement and retention in their jobs, and the combined effect of these and other factors on women\u27s interest and motivation to pursue or remain in leadership positions in college athletics

Attorney General v. MIAA at Forty Years: A Critical Examination of Gender Segregation in High School Athletics in Massachusetts

Forty years ago, the highest court in Massachusetts ruled in Attorney General v. Massachusetts Interscholastic Athletic Association that the state constitution\u27s newly-added equal rights amendment prohibited the blanket exclusion of boys from girls\u27 athletic teams. The state’s constitutional law departed from Title IX, as well as that of other states, in providing a legal foundation for a wider selection of gender-integrated high school sports. However, most sports remain segregated by sex. The Author opines that sport organizers in Massachusetts have missed an opportunity to provide students a more balanced menu of athletic opportunities that incorporate both sex-segregated and gender-free sports for the advantages each uniquely provides. This Article further describes how gender-free sport can address logistical challenges posed by segregating boys\u27 and girls\u27 opportunities within the same sport, mitigate the stereotypes of inferior girls\u27 sports, and maximize inclusion of transgender athletes. While segregated sports serve an important role to protect and preserve opportunities for female athletes whose interests and abilities have historically and continuously been suppressed, the Author suggests it is time to start thinking not about replacing girls\u27 sports altogether but adding more gender-free sports. Massachusetts should identify those sports in which separation does more harm than good, and test whether degendering sport provides net advantages

On the Basis of Sex : Using Title IX to Protect Transgender Students from Discrimination in Education

Transgender students are vulnerable to discrimination, exclusion, and harassment, and it is not clear to what extent this discrimination is prohibited by law. Title IX, the federal law prohibiting discrimination on the basis of sex in federally-funded schools, does not expressly prohibit discrimination against transgender students. Yet it is possible to interpret the prohibition on sex discrimination in a number of different ways that would make the law available to transgender plaintiffs in some, many, or all cases of discrimination otherwise covered by the statute. Since Title IX has only been invoked in a handful of transgender rights cases, litigants must reference judicial decisions interpreting the sex-discrimination prohibition in Title IX\u27s employment discrimination analog, Title VII of the Civil Rights Act of 1964. This Article examines judicial regulatory decision interpreting sex discrimination for purposes of Title VII, and describes the handful of cases to date in which courts have considered Title IX’s applicability to cases involving transgender plaintiffs. The Article then envisions how Title IX applies to transgender discrimination contexts that the courts haven’t considered yet. The Author demonstrates that a number of interpretations support Title IX as a source of legal rights for transgender plaintiffs in contexts like harassment, admissions, and expulsion, while plaintiffs challenging discrimination in those aspects of education that are lawfully segregated by sex can benefit from recent and emerging interpretations of sex discrimination borrowed from the Title VII context

Hormone Check: Critique of Olympic Rules on Sex and Gender

Most sports, including all Olympic sports, are divided into two categories: men\u27s and women\u27s. This Article first presents a history of gender testing in Olympic and international sports to illustrate why past attempts to define eligibility for women\u27s sports have proven unfair to women with intersex conditions. It then describes the shortcomings of the International Olympic Committee’s (IOC) first effort to articulate standards of eligibility for transgender athletes. In its second Part, this Article explains the more recent efforts of the IOC and the International Association of Athletics Federations (IAAF) to define eligibility for women\u27s sports solely on the basis of testosterone. That effort is temporarily suspended by the Court of Arbitration for Sport as applied to hyperandrogenism, but, as Part Ill explains, on grounds that could permit the rule\u27s reinstatement if a stronger justification is presented by the IAAF. Finally, this Article evaluates the concept of a unified hormone rule that the IOC appears to propose. After considering the strengths and weakness of alternatives to such a rule, including genderless sports and a uniform gender identity rule, this Article proposes a hybrid rule that applies a hormone standard to transgender athletes and a gender identity standard for women. This final Part seeks to rationalize the different treatment of transgender and intersex women in ways that minimize the potential for such a rule to contribute negatively to society\u27s understanding of both gender and athletic fairness

Title IX and Official Policy Liability: Maximizing the Law’s Potential to Hold Education Institutions Accountable for Their Responses to Sexual Misconduct

Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement—issued in the form of the Department of Education’s 2011 “Dear Colleague Letter”—to begin to address and improve their policies and practices for preventing and responding to sexual misconduct. Recently the Department of Education has incorporated the judicial deliberate indifference standard into its own regulations for enforcing Title IX. As a result, both judicial and administrative enforcement of Title IX may soon converge into the same generous standard that puts very little pressure on institutions to proactively or reactively respond to sexual misconduct on their campuses and in their communities. By responding only minimally to sexual misconduct, an institution can easily avoid committing deliberate indifference, while at the same time steering clear of the ever-present threat of litigation by respondents and individuals disciplined for sexual misconduct. In light of this concern about unidirectional litigation pressure, this Article seeks to highlight a lesser-known Title IX theory of liability with the potential to promote institutional accountability for sexual misconduct official policy liability. Simpson v. University of Colorado was the first case to recognize that educational institutions are liable under Title IX not only for indifferent response to the sexual misconduct of those under their control but also for sexual misconduct caused by their official policies. But this alternative theory of liability has not been widely utilized by plaintiffs’ lawyers, and the majority of judicial decisions that have considered it have found it not to apply. Two lower courts recently countered this trend by denying motions to dismiss claims of official policy liability against both Baylor University and the University of Tennessee. In both cases, plaintiffs sought damages for sexual assault experienced at the hands of other students and claimed that their universities’ official policies of indifference to sexual misconduct caused the assault. After analyzing the decisions in those cases, this Article explores the potential of official policy liability as a tool for maximizing Title IX’s potential to promote institutional accountability, even in an era characterized by lax regulatory enforcement and litigious respondents