AGAINST WOMEN'S SPORTS.

• Author: Leong, Nancy

Abstract

This Article challenges the longstanding assumption that sports should be segregated by sex. Imposing sex segregation on sports is problematic for many reasons. Sex segregation reflects and reinforces a binary view of both sex and gender unsupported by science. It communicates that women are physically unable to compete against men, even though research indicates considerable variation among individual athletes and different sports, and further reveals that attributes other than sex are often more important determinants of athletic ability. It reinforces unfounded gender stereotypes that harm both women and men. And sex segregation uncritically prioritizes athletic activities involving strengths typically associated with male bodies, without requiring us to ask why we view these strengths as the most important in the first place.

Sex segregation should not be the default in sports. Rather, if the entity that regulates a sport believes the sport should be segregated by sex, that entity should meet a burden equivalent to intermediate scrutiny by articulating why sex segregation is substantially related to an important interest. If the regulatory entity is governmental, then relevant constitutional provisions and federal laws, including the Equal Protection Clause and Title IX, already reflect this obligation. And even when the regulatory entity is private, a test analogous to intermediate scrutiny should be required to justify sex segregation as a matter of policy.

The Article does not claim that we should do away with all sex segregation in sports. Indeed, at times sex segregation is likely the best choice, or should be included as an option. But we should think carefully and critically about when and why we engage in such segregation. A thoughtful reexamination of the sex segregation norm we have too long taken for granted will improve sports for everyone.

NANCY LEONG *

* Professor of Law, University of Denver Sturm College of Law. This paper benefitted enormously from thoughtful comments during faculty colloquium presentations at the Penn State University School of Law, Chicago-Kent School of Law, and Northern Kentucky University Salmon P. Chase School of Law, as well as from early feedback at the University of Denver Constitutional Rights & Remedies Summer Scholarship Series. My gratitude goes to Josh Hammond, Emily Horn, Claire Nelson, and Justin Winn for outstanding research assistance and to the editors of the Washington University Law Review for their careful and thorough editing.

Table of Contents Introduction I. Women and Sports A. History B. Today II. Women's Sports? A. False Binaries B. Unjustified Segregation 1. Integrated competition 2. Segregated competition C. Gender Stereotyping D. Sports Essentialism III. Against Women's Sports A. Women's Sports in Court B. A Better Playing Field Conclusion INTRODUCTION

Most people agree that it's good for women to play sports. (1) We encourage girls and women to participate in sports, beginning before elementary school and continuing into old age. We believe it worthwhile for women to use their bodies in athletic endeavors to improve health, gain strength and coordination, experience camaraderie, and acquire the discipline necessary to improve at a physical activity. We value the opportunity to praise women for what their bodies can do rather than merely how their bodies look. And we celebrate the inspiring accomplishments of the most gifted women athletes.

But why is it that when women play sports they almost always do so separately from men? The default of sex segregation is a powerful and nearly ubiquitous one. From four-year-olds playing soccer to elite swimmers at the Olympics to senior citizens in a bowling tournament, the assumption is that women and men don't play with or against one another. What is the reason for this near-universal norm of sex segregation? Is it that women are physically, intellectually, or emotionally unable to compete against men? Would integrated competition be dangerous for women? Would it be unseemly? Would it be disruptive?

In this Article, I challenge the idea that women's (2) sports are an unqualified good. To be clear, there is no doubt in my mind that it is good for women to play sports. But automatically designating particular sports, teams, competitions, and athletic pursuits for women is less self-evidently good. Accepting a default of sex segregation in athletic endeavors harms both women and men. Such an assumption enforces stereotypes and misconceptions about the physical abilities of the sexes. And ultimately, it limits athletic opportunities for people of all sexes and genders.

Although sports function as both recreation and entertainment, the issue of sex segregation in sports is neither frivolous nor trivial. Sports have been the site of some of our most potent civil rights battles, from the racial desegregation of baseball (3) to the trademark battle over the controversial name of Washington D.C.'s professional football team. (4) And athletes have initiated some of the most powerful and controversial protests against injustice; from the 200-meter medalists at the 1968 Mexico City Olympic games protesting racial inequality by raising their fists in a black power salute, (5) to Muhammed Ali's principled refusal to enlist in the Vietnam War, (6) to the recent decision of individual football players and other athletes to kneel for the national anthem as a protest of state violence against black people. (7) Sports are not a rarified realm far removed from the civil rights issues of our time. Rather, they both reflect and reinforce the concerns of equality and justice that permeate society as a whole.

Women athletes have long been part of such civil rights activism. When Kathrine Switzer tried to become the first woman to register for and finish the Boston Marathon, some men were so opposed to her participation that they attempted to physically remove her from the course. (8) Decades later, the Yale women's crew team stripped naked and confronted their athletic director to protest the lack of women's shower facilities at their training location--a deficiency that routinely forced them to wait on the coed bus, cold, wet, and tired, while the less successful men's team finished showering. (9) And, more recently, women's soccer stars grew tired of making less money than their less successful male counterparts and filed suit under Title VII. (10) Sports thus serve as a prominent battleground on which gender roles and women's rights are contested and redefined.

The issue of sex segregation in sports is particularly important today, when women's rights are at a crossroads. In many respects, women have achieved something approaching equality: girls surpass boys on some parts of the SAT," more women than men now attend college and some professional schools, (12) women are increasingly well-represented in some sectors of the workforce, (13) and women have begun to serve in combat positions in the military. (14) Yet at the same time, self-titled men's rights activists and members of the so-called "manosphere" loudly trumpet women's inferiority. (15) Half of Americans believe that women should be legally required to change their surnames upon marriage because "women should prioritize their marriage and their family ahead of themselves." (16) Only 22 out of one hundred senators are women, as are 83 out of 435 representatives. (17) And our more than two century-long streak of male presidents remains unbroken.

The idea that women are weaker and less physically capable underlies some of the more virulent arguments that women simply are not equal to men. (18) And the presumed need for sex segregation in sports only reinforces that notion. Yet the default of sex segregation in sports remains underexamined. A number of researchers have considered certain facets of sex segregation in sports. Some have focused on the physiology of men and women and whether it justifies sex segregation as a policy. (19) Others have focused on whether Title IX prohibits sex segregation with respect to specific sports. (20) One has argued that school sports should be entirely free of gender classification. (21) And a few situate sex segregation in sports within a problematic pattern of sex segregation in society more generally. (22) Existing analysis is generally limited to particular sports or particular categories of athletes.

This Article provides an overarching structural critique of the sex-segregation norm in all sports at all levels. It interrogates why we believe certain sports to be more important than others. It also questions why we consider some activities sports and others not. This structural critique provides a foundation for a searching legal analysis that applies to all government-sponsored and government-supervised sports at every level of competition. To further that analysis, the Article imports recent scientific research and other empirical evidence about women's athletic capabilities. For privately sponsored and privately supervised sports, a substantially similar analysis should apply as a matter of good policy.

Ultimately, I conclude that many instances of sex segregation in government-sponsored sports do not survive true intermediate scrutiny--the kind that courts apply to sex- and gender-based classifications in other contexts. Based on available evidence, some instances of sex-segregation in sports survive that standard, and others do not. I argue that each situation must be considered on its own merits, with attention to the nature and purpose of the sport. (23) the purpose or goals of a particular sporting environment, (24) the social advantages and disadvantages of sex segregation, and the best available biological and sociological evidence. (25)

This Article proceeds as follows. In Part I, I trace the history of women in sports and women's sports, including the laws and regulations that have governed...