INTRODUCTION 216 I. GENDER FLUIDITY TODAY 218 II. SEX/GENDER STEREOTYPES IN SPORT PRE-TITLE IX 220 III. TITLE IX AND THE CONTACT SPORTS EXCEPTION THAT DISPROVES THE RULE 223 A. The Circuitous History of Title IX 224 B. The Mysterious History of the CSE, and Its Unconstitutional Effects .225 IV. FAILED ATTEMPTS TO SOLVE THE PROBLEM 227 A. Renee Richards 227 1. Richards v. United States Tennis Association 227 2. Organizational Policies Following the Richards' Case 231 a. USTA 231 b. International Olympic Committee 232 c. International Association of Athletics Federations 234 d. National Collegiate Athletic Association 235 B. Dutee Chand 236 C. Caster Semenya 239 V. PROPOSED LAW AND POLICY FOR A MORE GENDER-FLUID ERA 240 CONCLUSION 243 INTRODUCTION
When 1976 Olympic decathlon gold-medalist Bruce Jenner announced his intention in 2015 to transition to the female sex with the name Caitlyn, (1) the transition raised numerous legal and policy issues. This article will explore those issues as well as the interaction between sex/gender and sport more generally. What, for example, would and should have been done by the Olympic authorities had Bruce transitioned to Caitlyn before 1976? Would she have competed as a male or a female, and why?
Sport has struggled with sex/gender (2) for centuries, and the struggle has not become any easier now that sex and gender are becoming more fluid, as discussed in Section I below. The history of that struggle prior to the enactment of Title IX will be briefly reviewed in Section II below to illustrate how stereotypes, rather than reasoned analysis, have been unduly influential in law and policy in this area. As the National Collegiate Athletic Association (NCAA) has stated, contrary to those stereotypes,"[t]he assumption that all male-bodied people are taller, stronger, and more highly skilled in a sport than all female-bodied people is not accurate." (3)
The 1972 passage of Title IX (4) (reviewed in Section III below), began a new era of exponentially increased female participation in sports. (5) But in sports, most post-Title IX analysis has been binary in terms of sex/gender (i.e., not recognizing athletes other than male or female). Therefore, it is not surprising that relevant case law, statutes, and customs have been based on this binary view of human beings. Moreover, the Contact Sports Exemption (CSE) to Title IX (6) continued the use of stereotypes under a slightly different guise.
Sporting organizations, courts, and legislatures have struggled mightily to create fair and rational rules in an era of greater gender fluidity. Section IV below will explore some of those struggles, none of which have provided a workable protocol because of one or more of the following flaws: they are invasive, they do not have a generally accepted scientific basis, and/or they fail to take Title IX into consideration.
Section V will then propose an appropriate protocol based on three principles: 1) separate but equal teams are permissible; 2) where there is only one team in a sport, females may try out for traditionally male teams, like football, and males may try out for traditionally female teams, like field hockey; 3) the definition of "sex" is either the sex at birth or the sex with which the individual identifies for all purposes (i.e., not just for sports). The proposal, consistent with U.S. Supreme Court rulings, seeks to eliminate the sex/gender stereotype in sports once and for all, while continuing to preserve the rights that Title IX granted to women. (7)
GENDER FLUIDITY TODAY
until the late twentieth century, almost all people in Western societies were categorized by their sex, in other words as either male or female. (8) Now however, more people than ever before are undergoing sex reassignment or categorizing themselves by their gender identity rather than their sex.
A sign of society's efforts to keep up with evolving gender identities appears on the popular social media site, Facebook.com. As recently as 2014, American users of Facebook were allowed to identify themselves as one of fifty gender identity categories, and users in the United Kingdom could identify themselves as one of seventy-one different gender identity options. (9) The number of American categories increased to fifty-eight categories shortly thereafter until, ultimately, Facebook adopted a policy to allow its users unlimited custom gender identities. (10)
Below is a sampling of identities, other than male and female, which are currently in use, and basic definitions for each (11):
* Agender: a person who does not identify with any gender identity. (12)
* Androgynous: a person who does not identify with or present as either a male or female.
* Bigender: a person who identifies as both male and female, although not necessarily in a 50/50 ratio.
* Cis: various terms starting with "cis," meaning a person who identifies with the sex they were born with, followed by terms such as female, woman, male, man, gender, gender male, gender female, etc.
* Female to Male (FTM) or Male to Female (MTF): a person born either a male or female who now lives as the other, whether or not reassignment surgery has been performed, and presents a gender identity consistent with the sex with which the person identifies.
* Gender Fluid: a person whose gender identity and presentation are not limited to one gender identity. There are also similar categories of gender nonconforming, gender questioning, gender variant, and gender diverse.
* Genderqueer or Non-binary: a person who identifies as something other than as part of the traditional two-gender system.
* Intersex: a person who has chromosomes and other physical manifestations that are not consistent with the expected configurations for a biological male or female. (13)
* Neither: a person choosing not to label gender.
* other: a person choosing not to provide a label for their gender.
* Pangender: "pan" means every, or all, and this is another identity label much like genderqueer or neutrois that challenges binary gender and is inclusive of gender-diverse people.
* Transgender: a person of a gender not traditionally associated with their sex at birth. There are also gender identities within transgender such as transgender man, transgender woman, transgender male, transgender female, and transgender person. (14)
* Trans*: a person who does not identify with an established sex or gender label. There are also gender identities within trans* such as trans*person, trans*female, trans*woman, trans*male, and trans*man.
* Transsexual: a person who has undergone treatment or surgery to change their sex. The term is often followed by a sexual connotation such as transsexual woman, transsexual female, transsexual man, or transsexual male. (15)
* Transmasculine or Transfeminine: a person born either male or female who identifies as either masculine or feminine (which is not consistent with the traditional traits of their birth sex), although the person may not identify entirely as either sex.
* Two-spirit: a person who has both masculine and feminine characteristics and presentations.
People with non-binary gender identities would traditionally have been hard pressed to compete on a male or female sports team that did not match the sex stated on their birth certificates. As the NCAA has stated, for example, there is a concern "that transgender women are not 'real' women." (16) However, also according to the NCAA:
Gender identity is a core aspect of a person's identity, and it is just as deep seated, authentic, and real for a transgender person as for others. Male-to-female transgender women fully identify and live their lives as women, and female-to-male transgender men fully identify and live their lives as men. (17) As gender has become more fluid, the sports world has had to adjust to ensure that the competitive playing field remains level and that all competitors--regardless of their sex or gender identity--are treated fairly. As noted in Section IV below, these efforts have not yet resulted in a workable solution that can be uniformly applied.
SEX/GENDER STEREOTYPES IN SPORT PRE-TITLE IX
The historical arc of sex/gender discrimination in sport is lengthy and has grown more complex as gender fluidity has increased. In order to understand the current era of greater gender fluidity as it relates to sport, it is necessary to understand the role of sex/gender in sport both before the 1972 passage of Title IX, briefly discussed in this section, and after the passage of Title IX, which will be discussed in Section III below. The discussion in this section is brief because there was not much progress in this area over the course of more than twenty-six centuries from the origin of the olympic Games in ancient Greece until the early 1970s. For example, women were not allowed to compete in the Olympic Games in ancient Greece. (18) Indeed, married females were not even allowed to attend as spectators. (19)
Fast-forward from 776 B.C. to the beginning of the modern Olympic Games in 1896. Women were still not allowed to compete in those games; Baron de Coubertin, who founded the modern games, thought that such participation would be "impractical, uninteresting, unaesthetic, and incorrect." (20) Gradually, over a period of decades, women were allowed to compete in more olympic sports. Finally in 2012, with inclusion in boxing, women were permitted to compete in all sports at a single olympics. (21)
A major factor keeping women from competing in sports was a belief that such competition would impair childbearing capabilities. (22) That belief was disproven by, among many others, Joan Benoit Samuelson--the first woman to win an Olympic marathon. She was quoted in 2016, on the occasion of the 50th anniversary of female participation in the Boston Marathon, as stating: "It was thought that running would do us bodily harm, and we would never bear children. Now here I am: 150,000 miles and two...