Women's rights are on the chopping block. Is Title IX also failing at age 50?
Terrance Sullivan
Mon, June 20, 2022
I love and support women’s sports. I believe the best pure basketball is women’s basketball and have become especially spoiled by Coach Jeff Walz and U of L. I also am an inaugural season ticket holder for Racing Louisville of the NWSL and serve on the board of a supporters group for the team.
I want to always be an advocate for women in sports because quite often they seem to have the most passion for the sport, possibly the mentality of proving doubters wrong, but also the sports themselves are often less publicized, less funded, less of everything but skill and deservedness.
In June of 1972, the proverbial (and literal) playing field was supposedly made more level. Fifty years ago, Congress emphatically stated:
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.
This law, Title IX of the Education Amendments of 1972 was a breath of fresh air and a continuance of the fight for civil rights that started years earlier. To some, this law was seen as an end to sexism and the problems stemming from it.
Terrance Sullivan
Mon, June 20, 2022
I love and support women’s sports. I believe the best pure basketball is women’s basketball and have become especially spoiled by Coach Jeff Walz and U of L. I also am an inaugural season ticket holder for Racing Louisville of the NWSL and serve on the board of a supporters group for the team.
I want to always be an advocate for women in sports because quite often they seem to have the most passion for the sport, possibly the mentality of proving doubters wrong, but also the sports themselves are often less publicized, less funded, less of everything but skill and deservedness.
In June of 1972, the proverbial (and literal) playing field was supposedly made more level. Fifty years ago, Congress emphatically stated:
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.
This law, Title IX of the Education Amendments of 1972 was a breath of fresh air and a continuance of the fight for civil rights that started years earlier. To some, this law was seen as an end to sexism and the problems stemming from it.
Title IX 50 years later
The purpose of Title IX was to equalize the opportunity to access programs, activities and employment within educational institutions receiving federal funds. It doesn’t require that identical sports be created but does require creation of the same amount of opportunities for participation in sports programs and amounts of scholarship funds awarded. This is what people think of when they think of Title IX.
But it goes beyond that. A vital, yet less discussed portion of Title IX, requires schools to designate at least one employee as responsible for coordinating the school’s compliance with Title IX as well as require them to adopt and publish grievance procedures for students to file complaints of sex discrimination, including complaints of sexual harassment or sexual violence.
As with any law, there have been challenges and changes. It is probably assumed that 50 years later, we are much more advanced in the application of the law and how it applies to sports and beyond. An assumption that unfortunately is not entirely accurate.
Years after its passage, numerous legislators sought to weaken or completely strike down Title IX, arguing the unfair advantage it gave women’s sports to the detriment of the men—or the fan-favorite ‘reverse sexism’ that seems similar to some other complaints we hear today. In 1976, even the NCAA sued to challenge the legality of the law itself.
In 1984, the Supreme Court got in on the fun in Grove City College vs. Bell, 465 U.S. 555 which basically limited the application of the law to specific programs and called to question the applicability to athletics. This was remedied in later laws, namely the Civil Rights Restoration Act in 1988—much to the chagrin and veto of Ronald Reagan.
More: Bellarmine softball coach placed on leave for possible Title IX violation
The purpose of Title IX was to equalize the opportunity to access programs, activities and employment within educational institutions receiving federal funds. It doesn’t require that identical sports be created but does require creation of the same amount of opportunities for participation in sports programs and amounts of scholarship funds awarded. This is what people think of when they think of Title IX.
But it goes beyond that. A vital, yet less discussed portion of Title IX, requires schools to designate at least one employee as responsible for coordinating the school’s compliance with Title IX as well as require them to adopt and publish grievance procedures for students to file complaints of sex discrimination, including complaints of sexual harassment or sexual violence.
As with any law, there have been challenges and changes. It is probably assumed that 50 years later, we are much more advanced in the application of the law and how it applies to sports and beyond. An assumption that unfortunately is not entirely accurate.
Years after its passage, numerous legislators sought to weaken or completely strike down Title IX, arguing the unfair advantage it gave women’s sports to the detriment of the men—or the fan-favorite ‘reverse sexism’ that seems similar to some other complaints we hear today. In 1976, even the NCAA sued to challenge the legality of the law itself.
In 1984, the Supreme Court got in on the fun in Grove City College vs. Bell, 465 U.S. 555 which basically limited the application of the law to specific programs and called to question the applicability to athletics. This was remedied in later laws, namely the Civil Rights Restoration Act in 1988—much to the chagrin and veto of Ronald Reagan.
More: Bellarmine softball coach placed on leave for possible Title IX violation
UofL women's basketball held its Media Day on Tuesday at the KFC YUM! Center. Above, Monique Reid (right) jokes around as she and teammates Asia Taylor (left) and Shelby Harper (center) get their picture taken. Oct. 30, 2012
What seems like ancient history, however, is also in our present. Inequities in sports are still pervasive, and this became illuminated in the 2021 NCAA Women's Final Four (can I call it that? That is part of the issue) and the disparities seen in facilities. I am sure we all remember the viral video of the disparities in the weight rooms for the tournament. Women were given the equivalent of a budget hotel weight room, whereas the men got Olympic-level lifting options. 2021…
In 2020, the US Department of Education released regulations around sexual harassment and sexual assault that weakened Title IX application under the guise of ‘due process’ and placed strict limits on application requiring current enrollment of a student for protection as well as the incident take place strictly in the US. I guess what happens in study abroad or the trip to Cancun…
And we all are well aware of the current barrage of legislation targeting trans athletes in states across the country. Kentucky itself passed its own this past legislative session. Legislation like this singles out students who may be transgender and thusly violates constitutional guarantees of equal protection while also discriminating on the basis of sex and transgender status in violation of the right to equal protection guaranteed by the Fourteenth Amendment of the United States Constitution and also Title IX.
More: Here's what to know about the Kentucky legislature's passage of the transgender sports ban
As a bit of a bright spot, the current iteration of law should be viewed as more inclusive. On June 15, 2020, the Supreme Court held in Bostock vs. Clayton County that sex discrimination under Title VII of the Civil Rights Act of 1964, encompasses discrimination on the basis of sexual orientation and transgender status. In 2021, the Principal Deputy Assistant Attorney General for the Civil Rights Division issued a memorandum to federal civil rights offices and general counsels addressing the application of Bostock to Title IX, determining that Title IX’s prohibition on discrimination “on the basis of sex” includes discrimination on the basis of gender identity and sexual orientation.
We are at a point where application and interpretation are paramount. As many rights of women appear to be on the chopping block, the least we can do is preserve the law that on its face guarantees equal opportunities. Title IX is an integral law that has had its share of detractors, but much like women in sports, it has persevered.
Terrance Sullivan is the executive director for the Kentucky Commission on Human Rights.
Terrance Sullivan is the Executive Director of the Kentucky Commission on Human Rights (KCHR). KCHR is the state agency charged with enforcing the Kentucky Civil Rights Act, a protector of the civil rights of Kentucky citizens. KCHR hears cases on discrimination across the state and offers trainings and educational opportunities for all Kentucky citizens. KCHR also empowers local commissions to do local-level civil rights work. Terrance is also a member of The Courier Journal's Advisory Board.
This article originally appeared on Louisville Courier Journal: Women's rights are on the chopping block. Is Title IX also failing?
What is Title IX? An impactful law that’s often misunderstood
Henry Bushnell and Payton Titus
Mon, June 20, 2022,
Title IX, the 37-word statute that helped spur a decades-long women’s sports boom, turns 50 years old on Thursday.
And yet, roughly 87% of American adults say they’ve heard a little or nothing about the watershed piece of civil rights legislation, according to a Pew Research Center survey. A similar Ipsos poll found that 71% of kids aged 12-17 know nothing about Title IX.
With its 50th anniversary near, experts and gender-equity advocates sought to educate the public about its power. Here’s what you should know about the law, its impact, its application in sports, its shortcomings, and more.
What is Title IX?
Title IX is a federal law that was passed as part of the Education Amendments of 1972. It reads: “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.”
Is Title IX a sports law?
Title IX is in part responsible for the increased participation of girls and women in sports, because almost all secondary schools and colleges receive federal funding, and sports count as education programs. But Title IX aims to protect all persons, regardless of gender, from various forms of prejudice and mistreatment. Title IX protection areas include:
Admissions
Recruitment
Financial aid
Academic programs
Housing
Employment
Comparable facilities
Counseling
Health and insurance benefits and services
Marital or parental status
Athletics
Textbooks and curricular material
Sexual harassment and sexual violence
How does Title IX apply to sports?
Title IX requires almost all colleges and high schools to provide equitable treatment to athletes in three broad categories:
Participation opportunities
Scholarships
Other benefits
These “other benefits” are sometimes called the “laundry list,” and include:
Equipment and supplies
Games and practice times
Travel
Per diem allowance
Coaching
Academic tutoring
Assignment and compensation of coaches and tutors
Locker rooms
Practice and competition facilities
Medical and training facilities
Housing and dining facilities
Publicity and promotion
Recruitment
Support services
Contrary to popular belief, equity under Title IX doesn’t mean 50-50 equality. Differences that can be explained by sport-specific characteristics or other circumstances might not be discriminatory. Rather than comparing team to team, investigators look at an athletic department’s entire program, and examine all the men’s squads alongside all the women’s squads to see whether treatment is equitable. (More on the investigators and the specific criteria later.)
What impact has Title IX had on sports?
Only 15% of college athletes (fewer than 30,000) were women in 1971-72, the season before Title IX’s passage. Back then, women received just 2% of their schools’ athletic budgets and scholarship funds were virtually “nonexistent,” according to the National Coalition for Women and Girls in Education.
Now, about 44% of NCAA athletes (218,122) are women, according to the governing body.
Title IX inspired a similar surge at lower levels. In 1972, some 300,000 girls played high school sports; they were 7% of all high school athletes, the NCWGE reported. In 50 years, according to the most recent National Federation of State High School Associations participation survey, that number has risen above 3.4 million — roughly 43% of high school athletes. Girls, however, still have fewer participation opportunities than boys did pre-Title IX (3.6 million).
A common misconception surrounding Title IX is that it has hurt men’s sports. While women’s sports have grown at a faster rate than men’s over the last 50 years — because they were starting from a societal suppressed baseline — men’s sports continue to grow, too. NCAA men’s sports participation has risen from 169,800 in 1982 to over 275,000 last year. Numbers for both men and women rose steadily each year from 2002 through the outbreak of the COVID-19 pandemic.
The effects of this participation boom have been vast. Title IX has indirectly contributed to the dominance of U.S. women at the Olympics and other international sporting events, like soccer’s World Cup. Of the 400 American athletes at the 1972 Olympic Games in Munich, Germany, just 84 were women. At London 2012 — two months after Title IX’s 40th birthday — the U.S. women outnumbered the men for the first time in both participation (269 women, 261 men) and medal count (58 to 45). The same happened in 2016 in Rio, when the U.S. sent the largest female contingent in Olympic history, according to Team USA. In Tokyo last year, American women would have finished fourth in the medal standings (66) if they were their own country.
Louisville women's basketball players wearing adidas “More Is Possible” tees which celebrates the 50th anniversary of Title IX.
Henry Bushnell and Payton Titus
Mon, June 20, 2022,
Title IX, the 37-word statute that helped spur a decades-long women’s sports boom, turns 50 years old on Thursday.
And yet, roughly 87% of American adults say they’ve heard a little or nothing about the watershed piece of civil rights legislation, according to a Pew Research Center survey. A similar Ipsos poll found that 71% of kids aged 12-17 know nothing about Title IX.
With its 50th anniversary near, experts and gender-equity advocates sought to educate the public about its power. Here’s what you should know about the law, its impact, its application in sports, its shortcomings, and more.
What is Title IX?
Title IX is a federal law that was passed as part of the Education Amendments of 1972. It reads: “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.”
Is Title IX a sports law?
Title IX is in part responsible for the increased participation of girls and women in sports, because almost all secondary schools and colleges receive federal funding, and sports count as education programs. But Title IX aims to protect all persons, regardless of gender, from various forms of prejudice and mistreatment. Title IX protection areas include:
Admissions
Recruitment
Financial aid
Academic programs
Housing
Employment
Comparable facilities
Counseling
Health and insurance benefits and services
Marital or parental status
Athletics
Textbooks and curricular material
Sexual harassment and sexual violence
How does Title IX apply to sports?
Title IX requires almost all colleges and high schools to provide equitable treatment to athletes in three broad categories:
Participation opportunities
Scholarships
Other benefits
These “other benefits” are sometimes called the “laundry list,” and include:
Equipment and supplies
Games and practice times
Travel
Per diem allowance
Coaching
Academic tutoring
Assignment and compensation of coaches and tutors
Locker rooms
Practice and competition facilities
Medical and training facilities
Housing and dining facilities
Publicity and promotion
Recruitment
Support services
Contrary to popular belief, equity under Title IX doesn’t mean 50-50 equality. Differences that can be explained by sport-specific characteristics or other circumstances might not be discriminatory. Rather than comparing team to team, investigators look at an athletic department’s entire program, and examine all the men’s squads alongside all the women’s squads to see whether treatment is equitable. (More on the investigators and the specific criteria later.)
What impact has Title IX had on sports?
Only 15% of college athletes (fewer than 30,000) were women in 1971-72, the season before Title IX’s passage. Back then, women received just 2% of their schools’ athletic budgets and scholarship funds were virtually “nonexistent,” according to the National Coalition for Women and Girls in Education.
Now, about 44% of NCAA athletes (218,122) are women, according to the governing body.
Title IX inspired a similar surge at lower levels. In 1972, some 300,000 girls played high school sports; they were 7% of all high school athletes, the NCWGE reported. In 50 years, according to the most recent National Federation of State High School Associations participation survey, that number has risen above 3.4 million — roughly 43% of high school athletes. Girls, however, still have fewer participation opportunities than boys did pre-Title IX (3.6 million).
A common misconception surrounding Title IX is that it has hurt men’s sports. While women’s sports have grown at a faster rate than men’s over the last 50 years — because they were starting from a societal suppressed baseline — men’s sports continue to grow, too. NCAA men’s sports participation has risen from 169,800 in 1982 to over 275,000 last year. Numbers for both men and women rose steadily each year from 2002 through the outbreak of the COVID-19 pandemic.
The effects of this participation boom have been vast. Title IX has indirectly contributed to the dominance of U.S. women at the Olympics and other international sporting events, like soccer’s World Cup. Of the 400 American athletes at the 1972 Olympic Games in Munich, Germany, just 84 were women. At London 2012 — two months after Title IX’s 40th birthday — the U.S. women outnumbered the men for the first time in both participation (269 women, 261 men) and medal count (58 to 45). The same happened in 2016 in Rio, when the U.S. sent the largest female contingent in Olympic history, according to Team USA. In Tokyo last year, American women would have finished fourth in the medal standings (66) if they were their own country.
Louisville women's basketball players wearing adidas “More Is Possible” tees which celebrates the 50th anniversary of Title IX.
(Andy Lyons/Getty Images for adidas)
What hasn’t Title IX accomplished?
Title IX only applies to educational institutions. Media organizations and professional sports leagues don’t fall under its jurisdiction. As a result, there’s no mechanism to help guarantee equal coverage of women’s and men’s sports or equal opportunity for investment in professional leagues.
A study by professors at Purdue University and the University of Southern California, for example, found that women benefit from just 3-5% of total sports media coverage — roughly the same percentages as 30 years ago. In 2019, women’s sports received just 5.4% of total airtime. In 1989, the number was 5%; in 1993, it was 5.1%. If the 2019 Women’s World Cup were removed from the 2019 figure, it would drop to 3.5%. The study also found that coverage of women athletes is of lower quality and production value.
Now with name, image and likeness rights, women athletes are able to set their own screen time and command their own audiences through social media without having to rely solely on TV networks. Three of the top five sports by NIL compensation belong to women (No. 3 women’s basketball, No. 4 women’s volleyball, No. 5 softball), according to Opendorse. While not part of Title IX, the 1-year-old NIL era has made headway for women in ways that Title IX has been unable to. But the disparities in coverage still limit their visibility and, thus, their earning potential.
Women’s professional sports leagues get the same kind of lackadaisical interest from investors as they do from mainstream media. While men’s leagues were given decades of grace throughout the 20th century to endure red ink, women’s sports haven’t been afforded the same patience.
For example, the Women’s United Soccer Association launched in 2001 on the heels of the 1999 World Cup’s success. The league lost $90 million through its first three seasons ($46 million after the first year, $24 million in the second and between $18 million and $19 million in the third), and folded. On the other hand, Major League Soccer, the men’s league founded in 1996, lost about $250 million in its first five years and still operates today.
Similar incongruities show up in other sports. The NBA lost between $15 million and $20 million as recently as 1982, its 35th year. Meanwhile, the following women’s sports leagues didn't survive 20 years to figure it out before fading into nonexistence: The Women’s Professional Basketball League (WBL), National Women’s Football League (NWFL), National Pro Fastpitch, Major League Volleyball and the WUSA’s successor, the Women’s Professional Soccer league.
So Title IX applies to schools. Do all major colleges comply with it?
No. In fact, most data, testimony and estimates suggest that anywhere between 50% and 100% of Division I athletic departments are noncompliant.
A Yahoo Sports analysis of 2020-21 Equity in Athletics Disclosure Act data found that over 80% of D-I schools did not offer women participation opportunities that were “substantially proportional” to the makeup of their student bodies — one of the primary tests to measure compliance.
Some Power Five powerhouses — most notoriously, the University of North Carolina — would need to add hundreds of women athletes to match their school’s broader gender demographics. Yahoo Sports’ analysis found that, in total, 308 (of the 348 D-I schools) would need to add a total of 35,796 women’s roster spots to achieve full proportionality.
And that number is likely an underestimate. Many schools artfully manipulate their rosters and use reporting tactics that make the EADA data look less flagrant than inequities actually are.
How is Title IX compliance measured in college sports? And what is the ‘three-prong test’?
Ever since the 1970s, the U.S. Department of Education (DOE) has used a so-called “three-prong test” to assess whether colleges are meeting the first of three broad requirements — equity in participation opportunities.
A school, whether Power Five or NAIA, must do at least one of the following three things:
Serve male and female athletes “in numbers substantially proportionate to their respective enrollments.” So, if a school’s student body is 52% women, then roughly 52% of its roster spots should be for women. As long as any discrepancies are smaller than an average-sized college sports team, the school is complying with Prong 1, and needn’t worry about the other two.
“Show a history and continuing practice of program expansion” for “the underrepresented sex.” In the early days of Title IX, many schools satisfied Prong 2 as they emerged from the Dark Ages and added women’s teams. But after 50 years, many experts question whether any school, if they still haven’t reached Prong 1 proportionality, can reasonably argue that they have both a “history” and a “continuing practice” of expansion.
“Fully and effectively” accommodate “the interests and abilities” of the underrepresented sex. To gauge this, the DOE looks at a variety of indicators, including high school and youth participation rates in sports that a school doesn’t offer; sports offered by other colleges in their region or conference; and requests made by students to add sports or elevate club teams to varsity status.
Over the years, schools have tried to meet Prong 3 by surveying their current students, and likely finding that everyday non-athletes aren’t interested in playing the varsity sports that the college doesn’t offer. But advocates have countered, and courts have often agreed, that, well, there are 3.4 million girls playing high school sports, and there’s this thing called recruiting.
“If the school wants to add a women's sport, they will find women to participate in that sport,” attorney Jill Zwagerman said. The entire history of women’s sports proves that, essentially, “if you build it, they will come.” The opportunity creates the interest, not vice versa, and so Prong 3, like Prong 2, has become outdated. Most schools must comply via Prong 1.
Colleges also have to offer equitable financial aid and other benefits, right?
Yep. The “three-prong test” is actually only one of the three buckets. Schools also must do two other things:
Offer scholarship money to male and female athletes proportional to the number of male and female athletes on rosters, within 1%, and accounting for non-discriminatory factors that might affect numbers. Essentially, if 47% of a university’s athletes are women, it must give 46%-48% of its athletics scholarship dollars to women.
Treat men and women equitably in the “laundry list” of areas mentioned above.
The “other benefits” category is the most qualitative of the three. Some experts argue that massive spending gaps are clear evidence of inequities. A USA Today analysis found that, for every dollar spent on travel, equipment and recruiting for select men’s teams, FBS schools spent just 71 cents on the corresponding women’s teams. A Yahoo Sports analysis of 2018-19 EADA data found that D-I schools, on average, reported 49 cents in women’s basketball operating expenses for every dollar in men’s basketball operating expenses. They also allocated just 28% of their overall recruiting budgets to women’s teams, and paid their head coaches in women’s sports 48 cents-on-the-dollar compared to counterparts on the men’s side.
Title IX, though, does not require equal spending. The DOE’s 1979 policy interpretation, which remains the key interpretive document, lays out the factors to consider. “Identical benefits, opportunities, or treatment are not required,” it clarifies, “provided the overall effects of any differences is negligible.”
Who enforces Title IX?
The Department of Education, and specifically its Office for Civil Rights (OCR), is responsible for enforcing Title IX. But its approach is more reactive than proactive. By law, it can randomly select colleges and secondary schools for sports-specific compliance reviews, but most of its investigations occur in response to complaints, and some can take years to complete.
The burden, therefore, falls on complainants, and often on the historically marginalized, powerless people whom the law is meant to protect: female students, and in this case, athletes.
When they feel discrimination, they have two legal routes: file an OCR complaint, or sue their school. The lawsuits are often successful, but come with stress and fear, because they require challenging the most powerful people at powerful institutions. “Even though Title IX has a provision that prohibits retaliation, the fact of the matter is, kids are not gonna bring a Title IX complaint unless you drop their sport,” said Donna Lopiano, a longtime administrator and former Women’s Sports Foundation CEO. “Otherwise, they have too much to lose — the starting position, the attention of the coach, the renewal of the scholarship.”
The OCR, meanwhile, technically has the power to pull federal funding from noncompliant schools, but it has never done so. By law, it must give the schools multiple opportunities to voluntarily comply before imposing the lone penalty at its disposal. Instead, it signs resolution agreements with colleges who’ve violated the law. The colleges agree to move toward compliance, but generally proceed without fear of consequences — and thus, noncompliance across the board persists.
Catherine Lhamon, the DOE’s assistant secretary for civil rights, admitted in an interview that it was “very rare” for a Title IX investigation to find full compliance, and, when asked specifically about Division I athletic departments, that “most schools across the country have some room for growth.”
Does the NCAA enforce Title IX?
It could, but no, it doesn’t. In fact, in the early years, the NCAA fought against Title IX’s application to athletics. Its first executive director, Walter Byers, argued that Title IX could cause the “possible doom of intercollegiate sports.”
Those days are gone, and the NCAA now “encourages our membership to follow all laws,” according to a spokeswoman. But Title IX does not apply to the NCAA because it is an association of federally funded educational institutions, not a federally funded institution itself. Those member institutions make the rules, and, perhaps because many of them don’t comply with Title IX, they have not made a rule that requires compliance. Instead, the NCAA defers to the DOE.
And separately, it is working to correct inequities at its national championships. After Sedona Prince and women’s basketball coaches exposed those inequities at the 2021 NCAA women's tournament, independent investigators put together a scathing 118-page report that detailed the NCAA’s underinvestment in women’s hoops.
What are some of Title IX’s other flaws?
Some scholars argue that, as a “single-axis law,” Title IX has disproportionately benefited white women, because it fails to address additional barriers that Black, Indigenous and other women of color face.
Whereas Black men are roughly 20% of NCAA male athletes, according to the governing body’s demographics database, Black women are just 11% of NCAA female athletes. While 60% of the U.S. population is non-Hispanic white, 68% of female NCAA athletes are white. Those demographics are likely a product of wealth gap stemming from centuries of systemic racism, which have left families of color without the resources required to put their kids in many of the girls sports that have risen during the Title IX era.
The numbers are even more stark in college athletics leadership. Currently, 7% of women’s head coaches are women of color, while 34% are white women. Only 4% of athletic directors are BIPOC women, while white women make up 20%. In 2021, only 15 of the 351 Division I athletic directors were women of color.
How does Title IX apply to transgender and nonbinary athletes?
The DOE last year issued a Notice of Interpretation reaffirming that Title IX’s protections applied to “discrimination based on sexual orientation” and “discrimination based on gender identity.” The Washington Post reported in March that the DOE would soon issue regulations codifying those protections — which would clash with state laws banning transgender women and girls from competing in women’s and girls sports.
The regulations haven’t yet materialized, but Lhamon, the OCR leader, said at an Aspen Institute summit in early May: “In court, in litigation, we've taken the position that schools cannot have a categorical ban on transgender students' participation in sports. It violates Title IX. So those are very, very clear rules. And I think it's important for all our school communities to understand, every student has value, every student is protected by the law. The text that Congress wrote in Title IX is that no person shall be subject to discrimination. And there's absolutely no question that transgender people are people. So they're protected by the law, and we and I are prepared to protect them.”
Could Title IX be amended, strengthened or weakened in the future?
Yes. All three branches of the federal government have that power.
Throughout its 50 years, Title IX, and especially its sports-specific regulations, have withstood countless challenges in Congress and in court. There were proposed amendments that would have exempted football or all college sports, but that didn’t pass. There was the George W. Bush-era commission that threatened to weaken the law, but that caved to political pressure. There was the 2005 policy clarification that did weaken the three-prong test, but the Barack Obama-era DOE walked it back. With a relatively high approval rating among American adults familiar with Title IX, the law now seems to stand on solid ground.
But feminists and women’s sports advocates often remind one another to stay vigilant. Some of them worried for Title IX’s future when the Supreme Court’s impending decision on abortion rights leaked. “Part of the affront there is a reversal of precedent,” said Ellen Staurowsky, an Ithaca College professor who has studied gender equity in sports for decades. “If there's a takeaway there, it would be that for all of the successes that Title IX has had, primarily on behalf of female complainants, over the years, there is a possibility that they can be reversed. So I think we need to proceed with caution.”
“I wish I could say that we're safe,” said Judy Sweet, a pioneering NCAA administrator and gender-equity advocate. “But given what has happened recently in the world, I don't have confidence in anything at this point.”
Title IX only applies to educational institutions. Media organizations and professional sports leagues don’t fall under its jurisdiction. As a result, there’s no mechanism to help guarantee equal coverage of women’s and men’s sports or equal opportunity for investment in professional leagues.
A study by professors at Purdue University and the University of Southern California, for example, found that women benefit from just 3-5% of total sports media coverage — roughly the same percentages as 30 years ago. In 2019, women’s sports received just 5.4% of total airtime. In 1989, the number was 5%; in 1993, it was 5.1%. If the 2019 Women’s World Cup were removed from the 2019 figure, it would drop to 3.5%. The study also found that coverage of women athletes is of lower quality and production value.
Now with name, image and likeness rights, women athletes are able to set their own screen time and command their own audiences through social media without having to rely solely on TV networks. Three of the top five sports by NIL compensation belong to women (No. 3 women’s basketball, No. 4 women’s volleyball, No. 5 softball), according to Opendorse. While not part of Title IX, the 1-year-old NIL era has made headway for women in ways that Title IX has been unable to. But the disparities in coverage still limit their visibility and, thus, their earning potential.
Women’s professional sports leagues get the same kind of lackadaisical interest from investors as they do from mainstream media. While men’s leagues were given decades of grace throughout the 20th century to endure red ink, women’s sports haven’t been afforded the same patience.
For example, the Women’s United Soccer Association launched in 2001 on the heels of the 1999 World Cup’s success. The league lost $90 million through its first three seasons ($46 million after the first year, $24 million in the second and between $18 million and $19 million in the third), and folded. On the other hand, Major League Soccer, the men’s league founded in 1996, lost about $250 million in its first five years and still operates today.
Similar incongruities show up in other sports. The NBA lost between $15 million and $20 million as recently as 1982, its 35th year. Meanwhile, the following women’s sports leagues didn't survive 20 years to figure it out before fading into nonexistence: The Women’s Professional Basketball League (WBL), National Women’s Football League (NWFL), National Pro Fastpitch, Major League Volleyball and the WUSA’s successor, the Women’s Professional Soccer league.
So Title IX applies to schools. Do all major colleges comply with it?
No. In fact, most data, testimony and estimates suggest that anywhere between 50% and 100% of Division I athletic departments are noncompliant.
A Yahoo Sports analysis of 2020-21 Equity in Athletics Disclosure Act data found that over 80% of D-I schools did not offer women participation opportunities that were “substantially proportional” to the makeup of their student bodies — one of the primary tests to measure compliance.
Some Power Five powerhouses — most notoriously, the University of North Carolina — would need to add hundreds of women athletes to match their school’s broader gender demographics. Yahoo Sports’ analysis found that, in total, 308 (of the 348 D-I schools) would need to add a total of 35,796 women’s roster spots to achieve full proportionality.
And that number is likely an underestimate. Many schools artfully manipulate their rosters and use reporting tactics that make the EADA data look less flagrant than inequities actually are.
How is Title IX compliance measured in college sports? And what is the ‘three-prong test’?
Ever since the 1970s, the U.S. Department of Education (DOE) has used a so-called “three-prong test” to assess whether colleges are meeting the first of three broad requirements — equity in participation opportunities.
A school, whether Power Five or NAIA, must do at least one of the following three things:
Serve male and female athletes “in numbers substantially proportionate to their respective enrollments.” So, if a school’s student body is 52% women, then roughly 52% of its roster spots should be for women. As long as any discrepancies are smaller than an average-sized college sports team, the school is complying with Prong 1, and needn’t worry about the other two.
“Show a history and continuing practice of program expansion” for “the underrepresented sex.” In the early days of Title IX, many schools satisfied Prong 2 as they emerged from the Dark Ages and added women’s teams. But after 50 years, many experts question whether any school, if they still haven’t reached Prong 1 proportionality, can reasonably argue that they have both a “history” and a “continuing practice” of expansion.
“Fully and effectively” accommodate “the interests and abilities” of the underrepresented sex. To gauge this, the DOE looks at a variety of indicators, including high school and youth participation rates in sports that a school doesn’t offer; sports offered by other colleges in their region or conference; and requests made by students to add sports or elevate club teams to varsity status.
Over the years, schools have tried to meet Prong 3 by surveying their current students, and likely finding that everyday non-athletes aren’t interested in playing the varsity sports that the college doesn’t offer. But advocates have countered, and courts have often agreed, that, well, there are 3.4 million girls playing high school sports, and there’s this thing called recruiting.
“If the school wants to add a women's sport, they will find women to participate in that sport,” attorney Jill Zwagerman said. The entire history of women’s sports proves that, essentially, “if you build it, they will come.” The opportunity creates the interest, not vice versa, and so Prong 3, like Prong 2, has become outdated. Most schools must comply via Prong 1.
Colleges also have to offer equitable financial aid and other benefits, right?
Yep. The “three-prong test” is actually only one of the three buckets. Schools also must do two other things:
Offer scholarship money to male and female athletes proportional to the number of male and female athletes on rosters, within 1%, and accounting for non-discriminatory factors that might affect numbers. Essentially, if 47% of a university’s athletes are women, it must give 46%-48% of its athletics scholarship dollars to women.
Treat men and women equitably in the “laundry list” of areas mentioned above.
The “other benefits” category is the most qualitative of the three. Some experts argue that massive spending gaps are clear evidence of inequities. A USA Today analysis found that, for every dollar spent on travel, equipment and recruiting for select men’s teams, FBS schools spent just 71 cents on the corresponding women’s teams. A Yahoo Sports analysis of 2018-19 EADA data found that D-I schools, on average, reported 49 cents in women’s basketball operating expenses for every dollar in men’s basketball operating expenses. They also allocated just 28% of their overall recruiting budgets to women’s teams, and paid their head coaches in women’s sports 48 cents-on-the-dollar compared to counterparts on the men’s side.
Title IX, though, does not require equal spending. The DOE’s 1979 policy interpretation, which remains the key interpretive document, lays out the factors to consider. “Identical benefits, opportunities, or treatment are not required,” it clarifies, “provided the overall effects of any differences is negligible.”
Who enforces Title IX?
The Department of Education, and specifically its Office for Civil Rights (OCR), is responsible for enforcing Title IX. But its approach is more reactive than proactive. By law, it can randomly select colleges and secondary schools for sports-specific compliance reviews, but most of its investigations occur in response to complaints, and some can take years to complete.
The burden, therefore, falls on complainants, and often on the historically marginalized, powerless people whom the law is meant to protect: female students, and in this case, athletes.
When they feel discrimination, they have two legal routes: file an OCR complaint, or sue their school. The lawsuits are often successful, but come with stress and fear, because they require challenging the most powerful people at powerful institutions. “Even though Title IX has a provision that prohibits retaliation, the fact of the matter is, kids are not gonna bring a Title IX complaint unless you drop their sport,” said Donna Lopiano, a longtime administrator and former Women’s Sports Foundation CEO. “Otherwise, they have too much to lose — the starting position, the attention of the coach, the renewal of the scholarship.”
The OCR, meanwhile, technically has the power to pull federal funding from noncompliant schools, but it has never done so. By law, it must give the schools multiple opportunities to voluntarily comply before imposing the lone penalty at its disposal. Instead, it signs resolution agreements with colleges who’ve violated the law. The colleges agree to move toward compliance, but generally proceed without fear of consequences — and thus, noncompliance across the board persists.
Catherine Lhamon, the DOE’s assistant secretary for civil rights, admitted in an interview that it was “very rare” for a Title IX investigation to find full compliance, and, when asked specifically about Division I athletic departments, that “most schools across the country have some room for growth.”
Does the NCAA enforce Title IX?
It could, but no, it doesn’t. In fact, in the early years, the NCAA fought against Title IX’s application to athletics. Its first executive director, Walter Byers, argued that Title IX could cause the “possible doom of intercollegiate sports.”
Those days are gone, and the NCAA now “encourages our membership to follow all laws,” according to a spokeswoman. But Title IX does not apply to the NCAA because it is an association of federally funded educational institutions, not a federally funded institution itself. Those member institutions make the rules, and, perhaps because many of them don’t comply with Title IX, they have not made a rule that requires compliance. Instead, the NCAA defers to the DOE.
And separately, it is working to correct inequities at its national championships. After Sedona Prince and women’s basketball coaches exposed those inequities at the 2021 NCAA women's tournament, independent investigators put together a scathing 118-page report that detailed the NCAA’s underinvestment in women’s hoops.
What are some of Title IX’s other flaws?
Some scholars argue that, as a “single-axis law,” Title IX has disproportionately benefited white women, because it fails to address additional barriers that Black, Indigenous and other women of color face.
Whereas Black men are roughly 20% of NCAA male athletes, according to the governing body’s demographics database, Black women are just 11% of NCAA female athletes. While 60% of the U.S. population is non-Hispanic white, 68% of female NCAA athletes are white. Those demographics are likely a product of wealth gap stemming from centuries of systemic racism, which have left families of color without the resources required to put their kids in many of the girls sports that have risen during the Title IX era.
The numbers are even more stark in college athletics leadership. Currently, 7% of women’s head coaches are women of color, while 34% are white women. Only 4% of athletic directors are BIPOC women, while white women make up 20%. In 2021, only 15 of the 351 Division I athletic directors were women of color.
How does Title IX apply to transgender and nonbinary athletes?
The DOE last year issued a Notice of Interpretation reaffirming that Title IX’s protections applied to “discrimination based on sexual orientation” and “discrimination based on gender identity.” The Washington Post reported in March that the DOE would soon issue regulations codifying those protections — which would clash with state laws banning transgender women and girls from competing in women’s and girls sports.
The regulations haven’t yet materialized, but Lhamon, the OCR leader, said at an Aspen Institute summit in early May: “In court, in litigation, we've taken the position that schools cannot have a categorical ban on transgender students' participation in sports. It violates Title IX. So those are very, very clear rules. And I think it's important for all our school communities to understand, every student has value, every student is protected by the law. The text that Congress wrote in Title IX is that no person shall be subject to discrimination. And there's absolutely no question that transgender people are people. So they're protected by the law, and we and I are prepared to protect them.”
Could Title IX be amended, strengthened or weakened in the future?
Yes. All three branches of the federal government have that power.
Throughout its 50 years, Title IX, and especially its sports-specific regulations, have withstood countless challenges in Congress and in court. There were proposed amendments that would have exempted football or all college sports, but that didn’t pass. There was the George W. Bush-era commission that threatened to weaken the law, but that caved to political pressure. There was the 2005 policy clarification that did weaken the three-prong test, but the Barack Obama-era DOE walked it back. With a relatively high approval rating among American adults familiar with Title IX, the law now seems to stand on solid ground.
But feminists and women’s sports advocates often remind one another to stay vigilant. Some of them worried for Title IX’s future when the Supreme Court’s impending decision on abortion rights leaked. “Part of the affront there is a reversal of precedent,” said Ellen Staurowsky, an Ithaca College professor who has studied gender equity in sports for decades. “If there's a takeaway there, it would be that for all of the successes that Title IX has had, primarily on behalf of female complainants, over the years, there is a possibility that they can be reversed. So I think we need to proceed with caution.”
“I wish I could say that we're safe,” said Judy Sweet, a pioneering NCAA administrator and gender-equity advocate. “But given what has happened recently in the world, I don't have confidence in anything at this point.”
