ERA v. Title IX: should male-student athletes be allowed to compete on female athletic teams?

• Author: Grant, Raymond
• Position: Equal Rights Amendment

"Permitting boys to play on girls' teams will impede the progress in reaching full athletic competition that girls are seeking to achieve. Although promoting equal opportunity in sports for females by excluding males may suffer from the backlash of reverse discrimination or carry with it the 'baggage of sexual stereotypes,' a better alternative has yet to be formulated by the courts or regulatory agencies." (1)

1. INTRODUCTION

   Two separate, but related, stories represent a growing debate permeating throughout the competitive atmosphere of Massachusetts high school athletics. (2) At the 2010 Western Massachusetts Division I girls' field hockey championship game, the two title contenders were engaged in a highly competitive match with the score tied late in the game. (3) With time running out, a player broke free from the field and scored the championship-winning goal as the player collided into the opposing team's goaltender. (4) Both the play and ensuing result appear relatively normal until it is revealed that a male student-athlete, a standout performer in both ice hockey and lacrosse, scored the game-winning goal, and that the female goaltender suffered a concussion as a result of the collision. (5)

   One year later, at the 2011 Massachusetts Women's South/Central Sectional Swimming and Diving Championships, one of the top female swimmers in the meet, who had trained all year to receive the honors and accolades associated with an individual championship, was forced to settle for second place. (6) Competing in the fifty-yard freestyle, the female swimmer was the fastest female in the field but was out-touched by one of the several male athletes competing in the event. (7) The male athlete, whose time would have failed to qualify for the Massachusetts Boys' Swimming and Diving State Championship, received all of the individual accolades associated with an individual championship while the fastest female swimmer in the meet had to content herself with second place. (8)

   These two situations represent a unique and controversial aspect of Massachusetts high school athletics. (9) As a result of the state's adoption of the Equal Rights Amendment (ERA) in the 1970s, the Massachusetts Supreme Judicial Court, applying a strict scrutiny standard of review, held that the Massachusetts Interscholastic Athletic Association's (MIAA) rule prohibiting males from competing on female athletic teams was unconstitutional for violating the ERA. (10) States across the country are unanimous in their view that females should not be prohibited from competing on male athletic teams. (11) Massachusetts is one of the few states, however, that has found a constitutional violation when prohibiting males from joining female teams. (12) The current and quite controversial MIAA rule, adopted in response to the Supreme Judicial Court's 1979 decision, is a representation of constitutional concerns usurping common sense; and it stands in direct opposition to the federally enacted gender equality legislation--Title IX of the Education Amendments of 1972 (Title IX)--and often leads to unfair sporting event outcomes that conflict with the competitive sportsmanship environment that high school athletics are designed to foster. (13)

   This Note focuses on the MIAA's regulation allowing males to compete on female athletic teams when the particular sport is not offered in the school for male athletes. (14) Part II.A begins with a historical overview of the Federal Equal Protection Clause and the Massachusetts ERA, focusing heavily on the societal factors leading to the adoption of the ERA. (15) Part II.B shifts focus to the federally enacted Title IX legislation, concentrating on the historical development of the legislation as it relates to Title IX's impact on athletics. (16) Part II.D narrows the discussion to specifically focus on the development of gender-equality issues in Massachusetts high school athletics and the Supreme Judicial Court's application of the ERA to such issues. (17) Part III of this Note will then consider the contradiction between the Federal Title IX legislation and the current MIAA regulation permitting male athletes to compete on female teams, centering largely on the effect the regulation has on female sporting events. (18) Finally, this Note will recommend a solution for Massachusetts high school athletics that conforms to constitutional concerns and represents a more common sense approach that will uphold the competitive sportsmanship crucial to the success of all high school athletics. (19)

2. HISTORY

   1. Fourteenth Amendment and the Equal Rights Amendment

      1. The Equal Protection Clause

         The Fourteenth Amendment to the U.S. Constitution provides that no state shall, "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws;" the emphasized clause is commonly referred to as the Equal Protection Clause. (20) Although the Equal Protection Clause was adopted in 1866, the Supreme Court failed to recognize gender as a protected class under the amendment until 1971, when the Court, in the landmark case of Reed v. Reed, (21) applied the Equal Protection Clause to prohibit gender-based discrimination. (22) In the later case of Craig v. Boren, (23) the Supreme Court expanded the scope of gender-based protection under the Federal Constitution by determining that under the foregoing Equal Protection Clause, all gender-based classifications would be subject to an intermediate level of judicial scrutiny. (24) In other words, in order to pass federal constitutional review under the Fourteenth Amendment, a gender-based classification "must serve important governmental objectives and must be substantially related to achievement of those objectives." (25) For several decades, the Court followed this intermediate level of scrutiny, upholding several gender-based classifications that were founded upon a reasonable distinction between the sexes and those that redressed claims of past discrimination or differences in opportunity. (26) However, in the 1996 case of United States v. Virginia, (27) the Court suggested a transition to a more stringent standard for gender-based classifications when it held that the state must provide an "exceedingly persuasive" justification for such classifications. (28)

      2. Massachusetts Equal Rights Amendment

         Prior to 1976, the Massachusetts Constitution simply required gender-based distinctions to bear a "fair and substantial relation to the object of the legislation." (29) In 1976, however, when it was clear that efforts to adopt a federal equal rights amendment would be unsuccessful, Massachusetts amended article one of its constitution to state that "[e]quality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." (30) Recognizing that the amendment--commonly referred to as the ERA--groups gender-based discrimination with other prohibited bases for discrimination that are subject to strict judicial scrutiny under the U.S. Constitution, the Supreme Judicial Court, in Commonwealth v. King, (31) held that the degree of scrutiny for gender-based classifications under the ERA must be at least as strict as the scrutiny required for racial classifications under the Fourteenth Amendment. (32) Therefore, under the Massachusetts Constitution, gender-based classifications are only permissible "if they further a demonstrably compelling [state] interest and limit their impact as narrowly as possible." (33) Under this strict scrutiny standard of review, the Supreme Judicial Court has continued to uphold gender-based classifications that are designed to address the ongoing effects of past gender discrimination. (34) Additionally, the court has analyzed several factors to determine if an action is narrowly tailored to ensure that the "'means chosen 'fit' [the government's] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate ... prejudice or stereotype.'" (35)

      3. Nationwide Overview of Equal Rights Amendment

         By adopting the state ERA, Massachusetts joined twenty-one other states in declaring that equality under the law shall not be denied as a result of sex. (36) An overwhelming majority of these state amendments were adopted in the 1970s, coinciding with the attempted adoption of a federal equal rights amendment and a general push for stronger constitutional protection for the equal rights of women. (37) A strong majority of states that have adopted an equal rights amendment have interpreted the provision as providing greater constitutional protection for gender-based classifications than that provided by the Equal Protection Clause of the Fourteenth Amendment. (38) While a few states originally entertained the adoption of an absolutist standard in which all gender-based classifications are deemed unconstitutional unless they are based on physical differences between the sexes, only one state currently employs this standard. (39) Additionally, a few states have followed federal equal protection law when construing their ERAs and have opted for the intermediate scrutiny standard. (40)

   2. Title IX

      1. Societal Factors Leading to Adoption of Title IX

      In addition to the Federal Equal Protection Clause and various state equal rights amendments, gender equality in high school athletics is also governed on the federal level by the Title IX legislation, adopted by the United States Congress in 1972. (41) The text of Title IX does not specifically mention athletics; instead it applies a general standard to all educational programs: "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...