Why Title IX Kept Separate Teams for Women in the First Place

The people who wrote the rules for women's sports in 1975 were not sentimental about it. They were bureaucrats with a deadline, a statute to implement and a very practical question on the table: if you tell schools they cannot discriminate on the basis of sex, do you also tell them they cannot have a girls' team?

They answered no. And the reason they gave is a lot older than the regulation, and a lot more durable than the slogans that surround it.

I want to make a straightforward argument today, from the text of the rule and the history of its enforcement. My thesis: separate teams by sex were written into Title IX's athletics rules on purpose, to protect the opportunities of women, and that reasoning still holds. I'll state the case for the other side as fairly as I can, because it comes from real people with real concerns, and then I will say what I think a sound policy looks like, one that keeps competition fair and treats every student with dignity.

The statute and the problem it faced

Title IX of the Education Amendments of 1972 was signed in June of that year. Its core sentence is short: 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 statute does not mention sports. It does not have to. Athletics are part of the education program of nearly every school and college.

Here is the problem the drafters of the implementing rules faced. If sex discrimination is prohibited in athletics, then a school that sponsors a men's basketball team and no women's team is discriminating, and the remedy might seem to be to let women try out for the men's team. In some sports, a few exceptional women would make it. But in most, the great majority of women would not, for reasons of average physiology that no amount of training erases, and the result of a single, unified, open team would be a roster full of men and a bench with almost no women on it. The remedy for exclusion would produce a new exclusion, quietly, by the ordinary operation of competition.

Think about how that works in practice. A college has twelve roster spots on a basketball team. If selection is purely by competitive skill with no division by sex, the twelve go, in most sports and most years, to the strongest, fastest, tallest athletes, and those are overwhelmingly men. Where are the women's scholarships? The women's titles? The women's record books? They would be gone, and the school could say, with a straight face, that every woman had the same right to try out.

The 1975 regulations: the text

The Department of Health, Education, and Welfare issued its Title IX regulations in 1975, and they took effect on July 21, 1975, after Congress declined to disapprove them, with schools given a period to comply. The athletics provision is at what is now 34 C.F.R. section 106.41 (it was originally in HEW's regulations and was later carried into the Department of Education's). Paragraph (a) states the general rule that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics.

Then comes paragraph (b), the one that matters for this column. It reads, in its first sentence:

Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.

Read that carefully. It does two things. It says that where selection is based on competitive skill, which describes nearly all school sports, a school may have separate teams for each sex. And it says the same where the activity is a contact sport. The rest of paragraph (b) adds a rule: where a school has a team in a sport for one sex only, and athletic opportunities for the other sex have previously been limited, members of the excluded sex must be allowed to try out, unless the sport is a contact sport. And the regulation defines contact sports to include boxing, wrestling, rugby, ice hockey, football, basketball and other sports whose purpose or major activity involves bodily contact.

So the regulation does not guess. It tells you why separation is allowed: competitive skill and contact. Those are the two situations in which an open team would, in the drafters' judgment, shut women out or put them in danger. And it adds a protection for women: if there is no women's team in a sport and women have been shut out in the past, they can try out for the men's team, which is a way of ensuring that no woman is left with nothing.

Paragraph (c) of the same regulation then lists the factors by which the department assesses whether a school provides equal athletic opportunity for both sexes: whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes, and a list of other benefits and opportunities, including equipment, scheduling, travel, coaching, locker rooms, facilities and publicity. Those are the details that decide, in practice, whether a school treats its women athletes fairly. For the story of how the statute itself grew, see Title IX Began as 37 Words in 1972, Here Is How It Grew Into a Rulebook.

The history behind the rule

The text was not invented from nothing. Women's sports in America had a history of separation, and of exclusion, before Title IX. Before 1972, women's participation in school sports was small. The first national high school survey, taken in 1971, counted about 294,000 girls in high school athletics, a small fraction of boys' participation, and far fewer women than men played college sports. Scholarships for women were almost nonexistent. Over the decades that followed, those numbers grew enormously: the number of girls in high school sports passed three million, and the number of women in college athletics grew several-fold. These are figures from the high school federation and the NCAA, and a reader who wants exact numbers should check their annual participation reports, which are public.

The women who fought for those opportunities understood what the separate teams did. They did not ask to be allowed on the men's team. They asked for their own teams, their own budgets, their own seasons, their own championships. For the longer history of the idea, see Why Women's Sports Were Separated in the First Place, From 1900 to Title IX. The drafters of the regulation wrote that demand into law.

The three-part test

Separate teams alone do not satisfy the law. Title IX requires that a school's athletic opportunities actually accommodate women's interests and abilities, and the department set out how it would judge that in a policy interpretation issued in December 1979. The result is the familiar three-part test. A school satisfies the participation requirement if it meets any one of the following:

1. Substantial proportionality. Participation opportunities for men and women are provided in numbers substantially proportionate to their respective enrollments.
2. History and continuing practice of expansion. The school can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the underrepresented sex.
3. Full and effective accommodation. The school can show that the interests and abilities of the underrepresented sex have been fully and effectively accommodated by the present program.

The test has been argued over for decades, by critics on the left, who think schools get away with too little, and on the right, who say proportionality in practice acts as a quota that drives schools to cut men's teams. That is a real debate, and a sincere one, and I don't want to skip it. But look at what the test presupposes: a world of separate men's and women's teams, in which the question is whether the number of women's opportunities is adequate. The three-part test makes no sense without separate teams. Remove the separation and there is nothing to count.

Why the reasoning still holds

Let me set the argument out in order.

1. Competition is organized around categories so that the contest is meaningful. We divide by weight in boxing and wrestling, by age in youth leagues, by skill in tiers of competition. A category exists to ensure that the contest is a fair test of the quality being measured: skill, training, effort and heart, and not a difference that decides the outcome before the starting gun.
2. Sex is the category that does this work for women's sports. After puberty, average differences between males and females in several qualities relevant to athletic performance, such as height, muscle mass, lung capacity and speed, open a gap that is substantial in many sports. This is no insult to women. It is a feature of human biology that the framers of the 1975 rule understood. The point of a women's category is that it lets women compete for the prize, and that without it, the prize would go elsewhere. In the sports where times and distances are recorded, this can be seen directly in the record books, which a reader can look up for any sport.
3. The separate category is the thing that created the opportunity. The huge growth in women's college and school sports since 1972 took place in a framework of separate teams. Women's scholarships, women's championships and women's rosters exist because the category exists.
4. If the category is weakened, those who lose are women. Every roster spot, podium place or scholarship that goes to an athlete outside the category is one a woman does not have. In a sport with a small number of places, that loss can be decisive for a particular young woman. That is not a hypothetical about distant sports. Roster limits are real, and so are finals with eight lanes.
5. Fairness to women is a civil rights claim. The people who fought for Title IX were making a civil rights argument: that women's athletic lives deserve the same investment and recognition as men's. Defending the women's category is a continuation of that argument and not a departure from it. See Fairness for Female Athletes Is a Civil Rights Argument, Made With Respect.

The steelman: the case for inclusion

I owe the other side its best statement, and I will give it in words its advocates would accept.

They say: every student deserves the benefits of sport, which include health, friendship, discipline, belonging and joy, and school sports exist for those benefits as much as for trophies. A transgender student, they argue, is a student like any other, who wants to be on a team with friends and to be treated with respect. Excluding that student from the team that matches the identity they live in every day is a painful exclusion, and the stigma and isolation it carries are real. The number of such athletes is small, they point out, and many sports are recreational, in which competitive fairness matters less than participation. They add that some athletes have taken medical steps that change their physiology, that governing bodies have developed eligibility rules, and that blanket rules are blunt instruments for individual cases. And they say a society that claims to value inclusion should find a way to include.

I take those points seriously, and several of them are right. Every student does deserve the benefits of sport. The students involved are real young people, and nobody should be mocked, harassed or treated with cruelty for who they are, on the field or off it. The number of affected athletes is small. And in recreational settings, where nothing is at stake but fun, there is a strong case for flexibility.

Where I disagree, and why

But my answer is that the argument proves too little for the contexts where the women's category matters most. Here is my response in three parts.

First, the purpose of the category. The women's team exists because, in competition, sex-linked physical differences make an open contest unfair to women. Where the category is protecting a place on a roster, a scholarship, a record or a podium, the question is not whether an athlete is deserving, but whether the contest is the one the category was built for. An inclusive purpose, however sincere, doesn't change what a women's category is for.

Second, the cost falls on a different group of young people. Inclusion is not free. Every place on a team is taken by someone. A policy that admits an athlete to the women's category in a competitive setting means that another young woman, who has done nothing wrong, and who trained for years, has one less place. That young woman's interests are no less real than the interests of the athlete admitted, and the law that exists to protect her was written precisely because her interests had been ignored for so long.

Third, the research is unsettled and contested on how much the physiological advantages of male puberty are reduced by medical treatment, and the sports governing bodies have reached different conclusions. I am not a scientist and don't pretend to settle that question here, and I'd urge readers to look at the published positions of the relevant governing bodies and the underlying studies. What I can say is that where the question is contested, the burden should fall on the policy that displaces the women's category, not on the women the category protects.

Policy options that protect fair competition and dignity

I do not think the choice is between cruelty and a loss of fair competition. A good policy can keep the women's category meaningful and treat every student with dignity. Here are options worth considering.

• Keep the women's category defined by sex in competitive interscholastic and intercollegiate sports. That preserves what the 1975 rule protected. Schools and legislatures should state the rule in clear written terms, so that students and families know it in advance.
• Offer open or coed divisions where numbers permit. A division that any student may enter, and a mixed intramural league, give every student a place to compete, without displacing anyone from the women's category.
• Expand recreational and club programs, where participation matters more than the podium. In intramurals and community leagues, flexibility is easy to grant.
• Protect dignity in practice. Whatever the rules, a school should enforce its anti-harassment policies, handle privacy in locker rooms and travel with sensitivity, and make clear that every student is to be treated with respect.
• Ask governing bodies to publish their evidence. Whatever a league decides, the evidence and the reasoning should be public, so parents can judge.
• Settle the rules in the legislature and the rulemaking process. These are questions of law and policy, and they should be decided in public, by accountable officials, and not by guidance letters that change with each administration. See Who Decides Gender Policy for Minors? The Case for the Legislatures.

None of these options asks anyone to pretend that something is true that isn't, and none asks a woman to give up her place. They honor the original bargain of Title IX: a place of one's own in the contest, and a school that takes both sexes seriously.

The Founding and the long view

The principle behind all this is an old one, and Americans tend to believe it when they stop to think. Equality before the law has never meant treating different things as the same. It means giving each person what is due to them and removing barriers that have no good reason. The framers of the Fourteenth Amendment wrote of equal protection of the laws, and the best tradition of that clause has always asked whether a classification is reasonable in light of its purpose. A separate women's category in sports is a classification with a clear and honorable purpose, and it has been a tremendous success. The women's category is not a stereotype. It is a protection, and the women who won it won it hard.

I'd also note what Title IX is not. It is not a perfect law, and the rulebook around it has grown heavy; I've covered that elsewhere. Its enforcement has sometimes been clumsy, and critics of proportionality have a point. But the central bargain, that women get their own teams, their own funding and their own chance at the podium, is one of the most successful civil rights achievements in American education. A conservative, whose instinct is to conserve what works, has every reason to defend it.

The case in brief

1. Title IX's athletics regulation, 34 C.F.R. 106.41(b), expressly allows separate teams by sex where selection is based on competitive skill or the sport is a contact sport.
2. The reason was practical and protective: an open contest would, in most sports, push women out of roster spots, scholarships and titles.
3. The 1979 three-part test measures whether a school's opportunities for women are adequate, and it presupposes separate teams.
4. The case for inclusion is sincere and deserves respect, but in competitive settings a place given to one athlete is a place taken from a woman the category was written to protect.
5. Good policy keeps the women's category meaningful, offers open and recreational options, protects every student's dignity, and is made by accountable officials in public.

What you can do: Read 34 C.F.R. 106.41 in full on the Government Publishing Office's eCFR site, then ask your school's athletic director how many teams and roster places the school provides to women, and how it reports that number.