by Susan Ware
It wasn't just HEW’S lack of willingness to embrace bold new ideas that doomed NOW'S innovative approach. Even if the federal government had adopted the NOW position, it would have proven extremely difficult to implement because the women's sports revolution was still too embryonic to compel popular acceptance for such a radical assault on the status quo. With the inequities in women's sports barely on the radar in the early 1970s, a policy so far in advance of public opinion would have been doomed to failure.
Another reason why the National Organization for Women did not prevail was that the underlying issues were just too complex for a “one size fits all” solution. As competing approaches dueled for support, it gradually became clear that there was not going to be one quick fix, politically or intellectually, to resolve this complicated debate over gender equity and athletics in the 1970s. As Title IX activist Bernice Sandler recalled later, “I and others spent endless hours with brilliant attorneys, policy wonks, athletic personnel, civil rights advocates, federal civil rights personnel, women's rights activists—all trying to devise some sort of a practical solution to the problem, and yet every so-called ‘solution’ had some grievous flaws within it.” It wasn't just for lack of imagination or trying. On the contrary, the impasse was rooted in the fundamental dilemma of modern feminism: how to achieve equality while also recognizing difference.38
At times these debates over Title IX seemed like a classroom in Feminist Theory 101. Billie Jean King and NOW activists represented liberal feminism and an equal rights approach, suspicious of old stereotypes that limited women's full participation in modern life and pushing the view that women must be treated as individuals regardless of sex. The National Collegiate Athletic Association represented a traditional patriarchal view that wanted to keep sports for men only, or at most, offer some crumbs to women without disturbing the male-dominated status quo. The Association for Intercollegiate Athletics for Women shaded more toward difference or cultural feminism with their call for women to retain control over women's athletics, their commitment to the preservation of a female ideal that did not simply ape the male standard of competitiveness and exclusion, and their determination to offer sports for a wider range of participants than just elite athletes. In hindsight there is much to credit in the AIAW vision in the 1970s and much to criticize with the liberal feminist rush to integrate women into the existing athletic system without fundamental change. And yet by zeroing in on the limits of separate but equal, especially when it came to the needs of elite female athletes who could play with the boys, liberal feminism made an extremely important contribution to a debate that is still ongoing.
When the Supreme Court overturned Plessy v. Ferguson’s separate but equal doctrine and outlawed racial segregation in schools in Brown v. Board of Education in 1954, large segments ofAmerican society remained unswayed by the court’s assertion of full citizenship rights for African Americans. Well in advance of public opinion, the legal decision eventually acted as a force for social change. Women athletes are subject to cultural stereotypes, lack of access to resources and opportunities, and lingering assumptions of innate biological differences that bear more than a passing resemblance to how African Americans were viewed in the 1950s. If sports had followed the model of racial desegregation when the regulations implementing Title IX were first written in the early 1970s, the model of “separate but equal” might have been discarded in favor of one that promoted sports integration, or at least downplayed the differences between the sexes in sports organization. But popular attachment to a binary gender system, in large part because of the assumption of men’s physical superiority, meant that the revolution in women's sports since the 1970s did unfold along separate—and decidedly unequal—lines.
Like so many other aspects of this story of feminism and sports, there was a very short window of opportunity in the early 1970s when new thinking might have prevailed. women's sports were practically a tabula rasa, a blank slate. Instead of setting up a parallel system that mimicked athletic apartheid for women and girls, what if the model had been more along the lines adopted for physical education, which stressed coeducational activities and integration of programs wherever possible? The literature in sports sociology and medicine tells us that human physical activity and skill is a continuum, that the similarities between the broad range of men and women are more salient than their differences at the very top or bottom. And yet even as the rest of society has moved in a more gender-neutral direction, competitive sports remain rigidly segregated by sex. Ironically, at least when it came to athletics, Title IX ended up reinforcing, rather than subverting, the very differences that it was originally passed to correct.39
NOT SURPRISINGLY, there was a lot of litigation around the issue of women's and girls’ access to sports in the 1970s. Surprisingly, very little of this litigation involved Title IX, mainly because of HEW’S dithering about issuing regulations, its delays investigating complaints and setting policy, the extension until 1978 for most schools to be in compliance, plus the inevitable time lag in cases working their way through the legal system. If not Title IX, then what legal recourse did sports activists have in the 1970s? For the most part, the legal doctrine of choice was the equal protection clause of the Fourteenth Amendment. Also useful were state Equal Rights Amendments. (Affirmative action was not a major player in this story in the 1970s.)40 These legal challenges grappled with many of the intellectual arguments advanced by the National Organization for Women in its critique of the Title IX regulations. More broadly, these legal cases show what happens when an individualistic, equal rights approach consistent with liberal feminism is applied to sports. With the logic and precedents of legal doctrine bucking up against deeply held conventional wisdom about male physical superiority, the results often pushed the comfort level of the sports world at the time.41
The 1970s were a time of enormous change when it came to legal rights for women. A good way to see how the changing attitudes played out in sports is to compare two cases from the beginning and the end of the decade. In 1971, a Connecticut high school girl sued in order to participate on a boys’ cross-country team because there was no girls’ team. The judge ruled against her in language that suggested that gender stereotypes were just as compelling factors in his reasoning as legal precedents: “Athletic competition builds character in our boys. We do not need that kind of character in our girls, the women of tomorrow.” Fast forward to 1978 and an Ohio case involving girls’ access to contact sports such as basketball and football. Judge Carl B. Rubin took a broader philosophical view, writing in his opinion: “It has always been traditional that ‘boys play football and girls are cheerleaders.’ Why so? Where is it written that girls may not, if suitably qualified, play football? There may be a multitude of reasons why a girl might elect not to do so. Reasons of stature or weight or reasons of temperament, motivation or interest. This is a matter of personal choice. But a prohibition without exception based upon sex is not.” He concluded with this vision of the future: “It may well be that there is a student today in an Ohio high school who lacks only the proper coaching and training to become the greatest quarterback in professional history. Of course the odds are astronomical against her, but isn't she entitled to a fair chance to try?”42
The cases about access to teams in the early 1970s were most likely to succeed when a girl was seeking the right to play on a boys’ team in a noncon-tact sport where no girls’ team existed. The prevailing motivation seemed to be not to crack the barriers of male exclusion but simply to win a chance to compete, period. If there had been girls’ teams, many of these suits would not have been filed. For example, in a case in Minnesota decided in 1972 (Brenden v. Independent School District, which was affirmed in 1973 by the U.S. Court of Appeals), two exceptionally talented female athletes, Peggy Brenden and Tony St. Pierre, wanted to play on the boys’ teams in tennis, cross-country, and skiing. While the court heard evidence about women's physiological differences from men, it concluded it
was not relevant in this case: “Because of their level of achievement in competitive sports, Tony and Peggy have overcome these physiological disabilities. There has been no evidence that either [of them] … or any other girls, would be in any way damaged from competition in boys’ interscholastic athletics, nor is there any credible evidence that the boys could be damaged.” According to Eileen McDonagh and Laura Pappano’s recent survey, of the forty cases litigated at the state and federal level over male-only teams, courts ruled in 85 percent of them that such teams were not permissible.43
One of the most interesting cases involved a suit filed in 1973 by the Commonwealth of Pennsylvania against the Pennsylvania Interscholastic Athletic Association (PIAA). The PIAA had a by-law that unilaterally forbade boys and girls from mixed athletic competition, which overruled any attempts by exceptional girls to win spots on boys’ teams. The case hinged on whether the PIAA’S rule discriminated on the basis of sex and thus violated the state’s Equal Rights Amendment. The Pennsylvania chapter of the National Organization for Women strongly supported the suit challenging the exclusionary standard and applauded the eventual decision, which ruled that the provision did indeed violate the state’s ERA.44
What was distinctive about the PIAA decision was that it opened contact as well as noncontact sports to all, regardless of sex. This decision gave glimpses of what a legal doctrine that mandated equality and overlooked prevailing stereotypes and rationales might look like. Addressing the question of whether girls should be allowed to play on boys’ teams even if there were teams for girls, the court pointed out what really is the most compelling argument in terms of women competing alongside men: “Even where separate teams are offered for boys and girls in the same sport, the most talented girls still may be denied the right to play at that level of competition which their ability might otherwise permit them. For a girl in that position, who has been relegated to the ‘girls’ team,’ solely because of her sex, ‘equality under the law’ has been denied.” The decision also showed what sports looked like when participants were viewed as individuals, not as members of a gendered sex subject to overly broad or paternalistic notions: “The existence of certain characteristics to a greater degree in one sex does not justify classification by sex rather than by the particular characteristic. If any individual girl is too weak, injury-prone, or unskilled, she may, of course, be excluded from competition on that basis but she cannot be excluded solely because of her sex without regard to her relevant qualifications.”45
Even more important than state Equal Rights Amendments were cases decided under the equal protection clause of the Fourteenth Amendment. Unlike the athletics regulations of Title IX, which encouraged a sex-differentiated view of equality, the equal protection clause of the Fourteenth Amendment mandated that all similarly situated individuals receive “equal protection of the laws.” For example, a 1972 Nebraska decision about a girl’s attempt to play on the boys’ golf team reasoned: “The issue is not whether Debbie Reed has a ‘right’ to play golf; the issue is whether she can be treated differently from boys in an activity provided by the state. Her right is not the right to play golf. Her right is the right to be treated the same as boys unless there is a rational basis for her being treated differently.”46
Another thing that the equal protection clause encouraged was a certain skepticism about the differences between the sexes that supposedly warranted separate treatment. As legal scholar Deborah Brake noted, “The core inquiry is whether the asserted differences between men and women, once stripped of archaic stereotypes and overbroad generalizations, are sufficient to support treating the sexes differently, or are instead mere remnants of traditional views about the proper place of men and women.”47
Title IX’s contact sports exclusion is a perfect example of a regulation that is based primarily on stereotyped views and untested assumptions. What possible legal justification is there for saying that no girls should play rough sports such as football and ice hockey or engage in physical contact with the opposite sex in sports such as wrestling? When strictly scrutinized, many of the supposedly immutable facts about the different capabilities of the sexes rest on stereotyped, out of date, or unsubstantiated statements about what are assumed to be these differences. Not the least, the focus on physical difference totally ignores the many other factors besides size that go into making an exceptional athlete, as nearsighted, 5’ Billie Jean King’s career amply demonstrates.
Despite the contact sports exclusion under Title IX, plaintiffs successfully used the Fourteenth Amendment to win women access to contact sports across the board starting in the 1970s and continuing to the present. The earliest battles were fought in baseball, with the successful battle to open Little League in 1973 and 1974 getting the most publicity, but girls also won the right to compete in basketball and soccer, even football, later in the decade. Sarah Fields, who has studied contact sports and the legal system, notes how courts filled the gap created by the Title IX exemption by using the Fourteenth Amendment to win girls access to contact sports, which to her mind “debunks the mythological power of Title IX, and it lauds the legal might of the equal protection clause.” Once again, not all the successes in the history of women's sports can be laid at the feet of Title IX.48
Finally, the emphasis on equal protection raises the question that was fundamental to the Brown decision on segregated schools: when determining whether separate can ever be equal, it is important to take into account intangible as well as tangible factors. In the case of Sweatt v. Painter (1950), the state of Texas offered a separate law school for blacks, which it then used to argue that blacks need not be allowed to enroll in the all-white school. The court ruled that even if the two schools were generally comparable in terms of things such as courses and faculty, they still were not equal because the white school enjoyed substantially more prestige.49
How might the reasoning in Sweatt and Brown apply to athletics? Like the practice of segregation in public education, segregating girls on separate teams could reinforce the notion that they are physically inferior and thus unable to compete with boys as a group. Indeed the whole idea behind dividing sports by sex is premised on the inequality of women—if women and men were equal, then there would be no need for separation. Even if athletic resources and opportunities comparable to those available for boys were offered to girls, intangible factors would still color their experiences. Rare cases such as Iowa girls’ basketball aside, girls’ teams rarely enjoy the same prestige as boys’ teams in the same sport or in the sports hierarchy in general. Few male teams would willingly switch places with their female equivalents, which brings us back to the notion articulated in Brown v. Board of Education that separate can never be equal. In such a situation women athletes will always be second-class citizens.
The early 1970s were part of a larger legal moment when equal protection arguments were being used to strike down older, archaic laws that had treated women as a class differently from men, mainly on the basis of stereotyped assumptions. As recently as 1948 in Goesaert v. Cleary, the Supreme Court upheld a Michigan statute prohibiting women from tending bar unless they were the wives or daughters of bar owners. This statute stemmed from concern for protecting women as a group from the supposedly inappropriate site of male bar culture, an impulse very similar to—and just as demeaning and patronizing as—earlier protective legislation such as Muller v. Oregon. In 1961 the Supreme Court in Hoyt v. Florida turned down an appeal by a woman who claimed her rights had been discriminated against because she was convicted of murdering her husband by an all-male jury, ruling that Florida’s policy of making jury duty mandatory for men but voluntary for women was constitutional. In its most quoted passage, the Supreme Court called women's exemption from jury duty reasonable, not arbitrary, because “woman is still regarded as the center of home and family life.”50
Such semichivalrous sentiments were increasingly difficult to defend from legal scrutiny after midcentury. Already by 1972, the following
practices had been overturned because they violated the equal protection clause of the Fourteenth Amendment: “the exclusion of women from juries; differential sentencing laws for men and women; the exclusion of women patrons from liquor-licensed places of accommodation; the exclusion of women patrons from an all-male ‘prestige’ college in a state university system; requiring all unmarried women under 21 to live in a state college dormitory when no such requirement was imposed on men; and requiring extended periods of mandatory maternity leave.”51
The Supreme Court added some extremely important precedents in the period between 1971 and 1975, cases that are arguably as important for the modern women's rights movement as Roe v. Wade’s legalization of abortion in 1973. Reed v. Reed (1971) overturned Idaho’s automatic preference for a male over a female in terms of executorship if the two were otherwise equally entitled to administer an estate. In Frontiero v. Richardson (1973), the court struck down a military provision that provided free medical care for the wife of an enlisted man but did not provide the same care for the husband of an enlisted woman. Two years later the Supreme Court relied on Frontiero to strike down a social security classification that allowed benefit payments to the wives of deceased male wage earners but not to husbands of deceased female wage earners, in Weinberger v. Wiesenfeld.52
When applying the Fourteenth Amendment’s guarantee of equal protection, courts must select among three levels of review to determine whether the discrimination is invidious: strict, intermediate, and rational basis review. In Reed v. Reed, the Supreme Court came close (four out of the five opinions in the majority decisions) to requiring the application of the strict standard by declaring sex a “suspect” classification. This would have meant that like race, alienage, or national origin, there would have to be a compelling state interest (an extremely high standard) to treat women as a class differently from men. In the years since, the Supreme Court has backed away from that precipice, generally applying an intermediate level of review (“substantially related to achieving an important government objective”) where sex is concerned, but still continuing its general skepticism about laws based on outdated assumptions about gender and sex.53