A Look Back at LGBTQ Athletes’ Fight for Protections Under Title IX
This article originally appeared on Womens Running
Since Title IX became the law of the land in 1972, LGBTQ athletes have been at the forefront of efforts to both expand the law's protections for women and LGBTQ people and shatter discriminatory stereotypes that persist in sport.
Though the landmark civil rights law is meant to ban sex discrimination in federally-funded education and athletics--which the Biden administration has interpreted to include protections based on sexual orientation and gender identity--inequities persist, particularly for young trans athletes, who are facing a torrent of legislation seeking to ban their participation on sports teams consistent with their gender identities, advanced by conservative groups and politicians who argue that Title IX should be interpreted to exclude trans athletes' participation. Those athletes and trans advocates, meanwhile, argue that excluding them violates their rights under Title IX--meaning that some LGBTQ athletes are still fighting for their rights under Title IX 50 years after the passage of the law.
As that anniversary approaches this month--June 23 marks the official date--Women's Running took a look back at Title IX's impacts on LGBTQ athletes and what protections they're still seeking.
1972
Congress passed Title IX after years of activism from women advocates and affiliated groups. Chief among them was Bernice Resnick Sandler, who led a campaign with the Women's Equity Action League to collect data on sex discrimination in universities across the country after she couldn't get a job interview for a professorship at the University of Maryland, where she was a 41-year-old doctoral candidate in education and a part-time lecturer. Meanwhile, her male peers had managed to secure jobs at universities across the country without even interviewing, according to "37 Words: Title IX and Fifty Years of Sex Discrimination," a book by Sherry Boschert published earlier this year.
It took three years after the law passed for the Department of Education's Office for Civil Rights (or OCR), which enforces Title IX, to issue regulations for how it should be implemented. Progress for LGBTQ athletes was still years away, Boschert writes: "Decades would elapse before Title IX started to address LGBT rights in the context of sex discrimination."
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1980s and 90s
In the decades after Title IX took effect, "homophobia especially persisted in sports," Boschert writes, noting that some who opposed women's equal participation in sports called successful young women athletes and women coaches 'lesbians'--regardless of their sexual orientation--in attempts to insult them.
Billie Jean King, the tennis star who triumphed over Bobby Riggs in the 1973 'Battle of the Sexes,' became the first prominent woman athlete to come out as gay in 1981 after her former partner filed a lawsuit against her, publicly outing her. Since then, King--who testified on behalf of Title IX in 1972 and founded the Women's Sports Foundation two years later to support women and girls in sports--has said that she lost all of her endorsements within 24 hours of coming out.
2001
The OCR issued guidelines clarifying that Titile IX applied to "gender-based harassment, including that predicated on sex-stereotyping," and that "it can be discrimination on the basis of sex to harass a student on the basis of the victim's failure to conform to stereotyped notions of masculinity and femininity."
Though those guidelines didn't use the word 'transgender,' they offered a "lifeline" to transgender students or anyone whose gender expression didn't conform to dominant expectations, Boschert writes.
2003
San Francisco became the first school district in the nation to allow trans students to use bathrooms, locker rooms, and other facilities corresponding with their gender identity, Boschert writes.
Decades later, that right was at the center of Gavin Grimm vs. Gloucester County School Board, a 2014 case that made headlines after Grimm, a transgender man, sued his school for not allowing him to use the boy's bathroom, arguing it violated both Title IX and the Equal Protection Clause, according to the American Civil Liberties Union. The case eventually made its way to the Supreme Court, which upheld a lower court's ruling in Grimm's favor last year, amounting to a win for trans students and athletes--though trans students have continued being barred from using bathrooms and locker rooms consistent with their gender identities.
In the wake of the Supreme Court decision, Grimm wrote an op-ed in the Washington Post: "At last, my victory feels final," he wrote. "But I shouldn't have had to fight this hard," he added, noting the slate of bills targeting trans youth athletes.
2016
Under the Obama administration, the Department of Justice and Department of Education issued a notice of interpretation clarifying that Title IX applied to discrimination based on gender identity, that transgender students could use the bathroom and locker rooms consistent with their gender identities, and that sports teams couldn't discriminate based on students' trans identities. But the Trump administration withdrew those guidelines a year later.
2020
Long distance runner and Boise State University student Lindsay Hecox, a transgender woman, filed a lawsuit against the state of Idaho for a state law passed earlier that year that would ban trans women's participation on women's sports teams, arguing that it violates Title IX. The law made the state the first to ban trans women from participating in women's sports, notes the ACLU, which is representing Hecox in her suit. However, the law never actually took effect, after a U.S. District Court judge issued an injunction against it, writing that Hecox "is likely to succeed in establishing the Act violates her right to equal protection."
Since then, 17 other states have passed laws banning students from participating in sports consistent with their gender identities, according to data compiled by the Movement Advancement Project, an independent, nonprofit think tank.
In a video released by the ACLU, Hecox describes what keeps her going: "When I feel this amount of sadness and emotion from a law like this passing, it makes me keep wanting to do this, keep wanting to be an activist. What I want to do is just run, have a team, have friends on the team just supporting me and all of us trying together. There's no vindictiveness there of me trying to take away girl's scholarships or trophies or places. I just want to be one of them--I am one of them."
The suit is likely to proceed after it stalled while Hecox temporarily dropped out of Boise State, according to the Idaho State Journal.
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The ACLU is also fighting a similar ban on behalf of Becky, a middle school trans girl in West Virginia who wants to join the cross country team but is prevented from doing so by a state law. The ACLU also represented two transgender student athletes in Connecticut who were the targets of a lawsuit filed by a group of cisgender runners opposing the Connecticut Interscholastic Athletic Conference's policy to allow trans students to compete on sports teams consistent with their gender identities, claiming it violated their rights under Title IX, but that suit was dismissed by a federal judge last fall, noting that "courts across the country have consistently held that Title IX requires schools to treat transgender students consistent with their gender identity."
2021
March: Sedona Prince, an openly gay University of Oregon basketball player, filmed a TikTok video at the National College Athletic Association's women's basketball tournament showing a small rack of weights the women's team used for training compared to a sprawling weight room allotted to the men's team. The video went viral, racking up millions of views and leading top athletes--including Golden State Warriors star Steph Curry--to condemn the national organization and call for equity for female players.
As a result of the video, the NCAA commissioned an external gender-equity review for college basketball, which found "significant disparities" between treatment of the men's and women's teams at the championships. A second review, released a few months later, found that the NCAA had neglected women's sports overall: "In the last 40 years, women's sports have effectively been playing catch up at the NCAA," it notes.
The same month Prince filmed the video, nearly 550 athletes from at least 85 colleges and universities sent a letter to the NCAA demanding they stop holding championships in states that passed or are considering legislation that would ban trans athletes from playing on sports teams consistent with their gender identities. In response, the NCAA said it was "continuing to closely monitor state bills that impact transgender student-athlete participation," according to Sports Illustrated.
Also in March, 33 plaintiffs filed a lawsuit against the Department of Education alleging that religious schools' abilities to file for exemptions to Title IX deprives them of their rights to due process and equal protection. One of the plaintiffs--Tristan Campbell, a former Oklahoma Baptist University student who came out as bisexual while at school--alleged in the complaint that other LGBT students at the school had “lost scholarships, been removed from sports teams, and been harassed" in light of the religious exemption. Subsequently, a group of religious schools and colleges filed motions to dismiss the lawsuit, as did the Department of Education, arguing the lawsuit wasn't an appropriate way to resolve the dispute, Politico reported last month. The motions, and the plaintiffs' motion for a preliminary injunction, are pending, per Politico.
June: The OCR issued a notice affirming that it would interpret that Title IX would apply to discrimination based on sexual orientation and gender identity, following a January executive order Biden signed on the topic. The June notice pointed to the precedent established in Bostock v. Clayton County, a 2020 Supreme Court case that ruled that the 1964 Civil Rights Law protects LGBTQ workers from sex discrimination.
2022
As Title IX celebrates its 50th birthday, LGBTQ advocates and athletes are still fighting to ensure that they receive equal protections under the law.
In January, LGBTQ advocates wrote to NCAA leaders asking them not to cut a nondiscrimination clause based on sexual orientation and gender identity, among other forms of identity, in the association's new constitution--the first since 1997, according to the Advocate--after a draft excluded the clause last fall, the 19th reported.
And in March, three lawmakers wrote a letter to NCAA president Mark Emmert alleging the association had made "inadequate progress" on gender equity since the release of last fall's report and suggesting it was in violation of Title IX, and then introduced a bill to investigate gender inequity within the NCAA, according to Sports Illustrated.
The Women's Sports Foundation noted in a May report examining Title IX's impact and future that "providing safe spaces for lesbian, gay, bisexual, transgender, and queer (LGBTQ+) athletes and sport leaders remains an urgent consideration." The report also echoes the request college student athletes made to the NCAA last year, recommending that championship events don't take place "in states where anti-LGBTQ laws have been passed by the state legislature or by executive order."
The Women's Sports Foundation report also recommends that "leagues should explicitly ban and condemn homophobic, transphobic, and/or anti-LGBTQ conduct by coaches, athletes, fans, and staff involved in athletic activity" and outline potential consequences of violating this policy and how students can file reports about discriminatory language if necessary. It also states that coaches have a key role to play in "creating supportive environments for LGBTQ athletes," suggesting that they, their athletes, and administrators complete mandatory annual Athlete Ally's Champions of Inclusion training, a free online training focused on creating inclusive teams and athletic leaders.
Last week, more than 200 education and civil rights groups wrote a letter to President Biden calling for the Department of Education to release its Title IX regulatory proposal by the June 23 anniversary, given that the department previously promised to release it in April. Updated proposed regulations, the letter notes, are critical "to address mounting threats to LGBTQI+ students and school communities." The legally-binding regulations--which would feature a public comment period before being finalized--are expected to establish discrimination against transgender students as a violation of federal civil rights law, potentially setting up a conflict with states that have passed laws barring trans athletes from sports, the Washington Post reported in March.
As Boschert writes in "37 Words," Title IX still has a ways to go to live up to its promise: "If athletics are an important part of education, they should be available to everyone."
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