Title IX

Title IX was enacted as a follow-up to the passage of the Civil Rights Act of 1964. The 1964 Act was passed to end discrimination in various fields based on race, color, religion, sex, or national origin in the areas of employment and public accommodation.[3][4] The 1964 Act did not prohibit sex discrimination against persons employed at educational institutions. A parallel law, Title VI, had also been enacted in 1964 to prohibit discrimination in federally funded private and public entities. It covered race, color, and national origin but excluded sex. Feminists during the early 1970s lobbied Congress to add sex as a protected class category. Title IX was enacted to fill this gap and prohibit discrimination in all federally funded education programs. Congressman John Tower then proposed an amendment to Title IX that would have exempted athletics departments from the scope of Title IX's coverage.

The Tower amendment was rejected, but it led to widespread misunderstanding of Title IX as a sports-equity law, rather than an anti-discrimination, civil rights law.[5] While Title IX is best known for its impact on high school and collegiate athletics, the original statute made no explicit mention of sports. The United States Supreme Court also issued decisions in the 1980s and 1990s, making clear that sexual harassment and assault is a form of sex discrimination. In 2011, President Barack Obama issued guidance reminding schools of their obligation to redress sexual assaults as civil rights matters under Title IX. Obama also issued guidance clarifying Title IX protections for LGBT students through Dear Colleague letters.[6][7][8][9]

The precursor to Title IX was an executive order, issued in 1967 by President Lyndon Johnson, forbidding discrimination in federal contracts. Before these orders were issued, the National Organization for Women (NOW) had persuaded him through successful lobbying, or influencing, his aides or Members of Congress to include the addition of women.[5] Executive Order 11375 required all entities receiving federal contracts to end discrimination on the basis of sex in hiring and employment.[10] In 1969, a notable example of its success was Bernice Sandler who used the executive order to retain her job and tenure at the University of Maryland.[11] She utilized university statistics to show how female employment at the university had plummeted as qualified women were replaced by men.[5] Sandler then brought her complaints to the Department of Labor's Office for Federal Fair Contracts Compliance, where she was encouraged to file a formal complaint; later citing inequalities in pay, rank, and admissions, among others.

Sandler soon began to file complaints against the University of Maryland and other colleges while working with NOW and the Women's Equity Action League (WEAL). Sandler later filed 269 complaints against colleges and universities, which led to the events of 1970.[5] In 1970, Sandler joined U.S. House Representative Edith Green's Subcommittee on Higher Education of the Education and Labor Committee, and observed corresponding congressional hearings relating to women's issues on employment and equal opportunity. In these hearings, Green and Sandler initially proposed the idea of Title IX. An early legislative draft was then authored by Representative Patsy Mink with the assistance of Representative Edith Green.[12] At the hearing, there were mentions of athletics. The idea behind the draft was a progressive one in somewhat instituting an affirmative action for women in all aspects of American education.[5]

Senator Birch Bayh of Indiana

Mink's initial draft of Title IX was formally introduced in Congress by Senator Birch Bayh of Indiana in 1971 who then was its chief Senate sponsor for congressional debate. At the time, Bayh was working on numerous constitutional issues related to women's employment and sex discrimination—including but not limited to the revised draft of the Equal Rights Amendment. The ERA attempted to build "a powerful constitutional base from which to move forward in abolishing discriminatory differential treatment based on sex".[13] As he was having partisan difficulty in later getting the ERA Amendment out of committee, the Higher Education Act of 1965 was on the Senate Floor for re-authorization; and on February 28, 1972, Bayh re-introduced a provision found in the original/revised ERA bill as an amendment which would become Title IX.[14] In his remarks on the Senate Floor, Bayh stated, "we are all familiar with the stereotype [that] women [are] pretty things who go to college to find a husband, [and who] go on to graduate school because they want a more interesting husband, and finally marry, have children, and never work again.

The desire of many schools not to waste a 'man's place' on a woman stems from such stereotyped notions. But the facts contradict these myths about the 'weaker sex' and it is time to change our operating assumptions."[15] He continued: "While the impact of this amendment would be far-reaching, it is not a panacea. It is, however, an important first step in the effort to provide for the women of America something that is rightfully theirs—an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work".[16] Title IX became public law on June 23, 1972.[17][18] When U.S. President Nixon signed the bill, he spoke mostly about desegregation busing, and did not mention the expansion of educational access for women he had enacted.[13][19]

Each institution or organization that receives federal funding must designate at least one employee as Title IX coordinator. Their duty is to oversee that Title IX is not being violated and to answer all questions pertaining to Title IX. Everyone must have access to the Title IX coordinator's name, address, and telephone number. In order to ensure compliance with Title IX, programs of both male and females must display no discrimination. This applies to athletics participation numbers, scholarships, program budgets, expenditures, and coaching salaries by gender.

Senator Bayh exercises with Title IX athletes at Purdue University in the 1970s.

Title IX's statutory language is brief. U.S. President Nixon therefore directed the Department of Health, Education and Welfare (HEW) to carry publish regulations clarifying the law's application.[5] In 1974, U.S. Senator John Tower introduced the Tower Amendment which would have exempted revenue-producing sports from Title IX compliance.[20] Later that year, Congress rejected the Tower Amendment and passed an amendment proposed by U.S. Senator Jacob Javits directing HEW to include "reasonable provisions considering the nature of particular sports" adopted in its place.[5] In June 1975, HEW published the final regulations detailing how Title IX would be enforced.[5] These regulations were codified in the Federal Register in the Code of Federal Regulations Volume 34, Part 106 (34 CFR 106). Since 1975, the federal government has issued guidance clarifying how it interprets and enforces those regulations.[21]

Representative Patsy Mink of Hawaii, Title IX co-author, for whom the law was renamed in 2002

The Civil Rights Restoration Act of 1988 is tied to Title IX which was passed in response to the U.S. Supreme Court's 1984 ruling Grove City College v. Bell.[22] The Court held that Title IX applied only to those programs receiving direct federal aid.[23] This case was initially reached by the Supreme Court when Grove City College disagreed with the Department of Education's assertion that it was required to comply with Title  IX. Grove City College was not a federally funded institution; however, they did accept students who were receiving Basic Educational Opportunity Grants through a Department of Education program.[22] The Department of Education's stance was that because some of its students were receiving federal grants, the school was thus receiving federal assistance and Title  IX applied to it. The Court decided that since Grove City College was only receiving federal funding through the grant program that only this program had to comply. This ruling was a major victory for those opposed to Title IX as it then made many athletic programs outside the purview of Title  IX, and thus reduced its scope.[5]

Grove City's court victory, however, was short-lived. The Civil Rights Restoration Act passed in 1988, which extended Title IX coverage to all programs of any educational institution that receives any federal assistance, both direct and indirect.[17] In 1994, the Equity in Athletics Disclosure Act, sponsored by Congresswoman Cardiss Collins required that federally-assisted educational institutions disclose information on roster sizes for men's and women's athletic teams; as well as budgets for recruiting, scholarships, coaches' salaries, and other expenses, annually.[20] In 1992, the Supreme Court decided monetary relief was available under Title IX in the case Franklin v. Gwinnett County Public Schools.[24] In October 2002, less than a month after the death of U.S. Rep. Patsy Mink, the U.S. Congress passed a resolution to rename Title IX the "Patsy Takemoto Mink Equal Opportunity in Education Act," which President George W. Bush signed into law.[25] On November 24, 2006, Title IX regulations were amended to provide greater flexibility in the operation of single-sex classes or extracurricular activities at the primary or secondary school level; this was largely to introduce federal abstinence-only programs, which may have been a partial basis for the support of President Bush.[26]

On May 15, 2020, the Department of Education issued a letter stating that the policy of the state of Connecticut which allows transgender girls to compete in high school sports as girls was a violation of the civil rights of those who had always identified as girls and a violation of Title IX. It stated that Connecticut's policy "denied female student-athletes athletic benefits and opportunities, including advancing to the finals in events, higher-level competitions, awards, medals, recognition, and the possibility of greater visibility to colleges and other benefits."[27]

Though views differ as respects the impact of Title IX, the discussion typically focuses on whether or not Title IX has resulted in increased athletic opportunities for females, and whether and to what extent Title IX has resulted in decreased athletic opportunities for males. Title IX has played a large role in females getting more involved in the cheerleading world, their goal has been to see an increase in females’ participation in athletics, so the main focus was put on the gender equality of school athletics.[28] Athletic equality requirements that schools must meet were made, the requirements were set by the U.S. Department of Education Office of Civil Rights and to meet the requirements, schools must pass at least one of three tests measuring gender equality among athletics the school offers.[29] These tests consist of proportional numbers of males and females participating, whether or not the school is making an effort to increase the number of the unrepresented sex, or if the school has a certain history of one specific sex dominating numbers in a sport, the school is showing an effort to expand the program to the other sex.[29] Although Title IX has increased the participation of female students, there is a struggle for professional females as there has been a decrease in opportunities and females’ role in coaching has majorly decreased while males have gained a larger role in directing athletics, which is still a struggle for women today.[28] Also, the legislation had impacts on aspects other than athletes. The increased exposure of female sports led to increased dominance by males of the governance of female athletics. For example, the male-dominated NCAA, which had been content to let the female-dominated AIAW run female championships, decided to offer female championships, leading to the eventual demise of the AIAW.[30] The National Collegiate Athletic Association later tried to claim that Congress had not intended to include athletics under Title IX's coverage, but the record lacks any sustained discussion of the matter.[31]

Advocates of Title IX's current interpretation cite increases in female athletic participation, and attribute those increases to Title IX.[32][33][34] One study, completed in 2006, pointed to a large increase in the number of women participating in athletics at both the high school and college level. The number of women in high school sports had increased by a factor of nine, while the number of women in college sports had increased by more than 450%.[35] A 2008 study of intercollegiate athletics showed that women's collegiate sports have grown to 9,101 teams, or 8.65 per school. The five most frequently offered college sports for women are, in order: (1) Basketball, 98.8% of schools have a team; (2) Volleyball, 95.7%; (3) Soccer, 92.0%; (4) Cross Country; 90.8%, and (5) Softball; 89.2%.[36]

At the same time, many contend that the current interpretation of Title IX by the Office for Civil Rights (OCR) has resulted in the dismantling of men's programs, despite strong participation in those sports.[37] For example, though interest in the sport of wrestling has consistently increased at the high school level since 1990,[38] scores of colleges have dropped their wrestling programs during that same period.[39][40] The OCR's three-prong test for compliance with Title IX often is cited as the reason for these cuts.[40][41] Wrestling historically was the most frequently dropped sport,[41] but other men's sports later overtook the lead, such that according to the NCAA, the most-dropped men's sports between 1987 and 2002 were as follows: Cross country (183), indoor track (180), golf (178), tennis (171), rowing (132), outdoor track (126), swimming (125) and wrestling (121).[39] Additionally, eight NCAA sports—all men's sports—were sponsored by fewer Division I schools in 2020 than in 1990, despite the D-I membership having increased by nearly 60 schools during that period.[42]

Some believe that the increase in athletic opportunity for girls in high school has come at the expense of boys' athletics. For example, the College Sports Council has stated, "Nationwide, there are currently 1.3 million more boys participating in high school sports than girls. Using a gender quota to enforce Title IX in high school sports would put those young athletes at risk of losing their opportunity to play."[43] High school participation rates from the National Federation of High School associations report that in 2010–11, there were 4,494,406 boys and 3,173,549 girls participating in high school athletics.[44]

There have been different interpretations regarding Title IX's application to high school athletics. The American Sports Council sued the Department of Education in 2011 seeking a declaratory judgment that its policy interpreting Title IX's requirement for equity in participation opportunities is limited to colleges and universities.[45] The American Sports Council argued that "The three-part test and its encouragement of quotas, has no relevance to high schools or high-school sports, and no federal regulation or interpretation has ever said that high schools must abide by the three-part test".[43] On the other hand, the Department of Education insists that Title IX is a "valuable tool" for ensuring a level playing field for all students" and "plays a critical role in ensuring a fundamental level of fairness in America's schools and universities".[45]

Between 1981 and 1999 university athletic departments cut 171 men's wrestling teams, 84 men's tennis teams, 56 men's gymnastics teams, 27 men's track teams, and 25 men's swimming teams.[46] While some teams—both men's and women's—have been eliminated in the Title IX era, both sexes have seen a net increase in the number of athletic periods over a similar time period as the above quote,[47] and by studies including more recent data, though when total enrollment which had likewise increased is controlled for, only women had an increase in participation.[48]

Because teams vary widely in size, it is more appropriate to compare the number of total participation opportunities. Additionally, the total number of college participation opportunities has increased for both sexes in the Title IX era, though solely for women when increased enrollment is accounted for, as men's participation remained static relative to university enrollment, and men's opportunities outnumber women's by a wide margin.[49]

The Women's Sports Foundation reported in a 2007 study of athletic opportunities at NCAA institutions that over 150,000 female athletic opportunities would need to be added to reach participation levels proportional to the female undergraduate population.[50] The same study found that men's athletics also receives the lion's share of athletic department budgets for operating expenses, recruiting, scholarships, and coaches salaries.[47]

Title IX applies to all educational programs and all aspects of a school's educational system. In the late 1970s, a group of students and one faculty member sued Yale University for its failure to curtail sexual harassment on campus by especially male faculty. This case, Alexander v. Yale, was the first to use Title IX to argue and establish that the sexual harassment of female students can be considered illegal sex discrimination.[51] The plaintiffs in the case alleged rape, fondling, and offers of higher grades for sex by several Yale faculty. Some of the cases were based on a 1977 report authored by plaintiff Ann Olivarius, now a feminist attorney known for fighting sexual harassment, "A report to the Yale Corporation from the Yale Undergraduate Women's Caucus." Several of the plaintiffs and lawyers have written accounts of the case.[52][53][54]

Advocates such as the American Civil Liberties Union (ACLU) likewise maintain that "when students suffer sexual assault and harassment, they are deprived of equal and free access to an education."[55] Further, according to an April 2011 letter issued by the Department of Education's Office for Civil Rights, "The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination and, in the case of sexual violence, is a crime."[56]

The letter, referred to as the "Dear Colleague Letter", states that it is the responsibility of institutions of higher education "to take immediate and effective steps to end sexual harassment and sexual violence."[57] The letter illustrates multiple examples of Title IX requirements as they relate to sexual violence and makes clear that, should an institution fail to fulfill its responsibilities under Title IX, the Department of Education can impose a fine and potentially deny further institutional access to federal funds. However, critics and later the Department of Education noted that this change was adopted without a rulemaking process to provide public notice and comment.[58]

On March 15, 2011, Yale undergraduate student and alleged sexual violence survivor Alexandra Brodsky filed a Title IX complaint along with fifteen fellow students alleging Yale "has a sexually hostile environment and has failed to adequately respond to sexual harassment concerns."[59]

In October 2012, an Amherst College student, Angie Epifano, wrote an explicit, personal account of her alleged sexual assault and the ensuing "appalling treatment" she received when coming forward to seek support from the college's administration.[60] In the narrative, Epifano alleged that she was raped by a fellow Amherst student and described how her life was affected by the experience; she stated that the perpetrator harassed her at the only dining hall, that her academic performance was negatively affected, and that, when she sought support, the administration coerced her into taking the blame for her experience and ultimately institutionalized her and pressured her to drop out.[61]

The fact that such a prestigious institution could have such a noxious interior fills me with intense remorse mixed with sour distaste. I am sickened by the Administration's attempts to cover up survivors' stories, cook their books to discount rapes, pretend that withdrawals never occur, quell attempts at change, and sweep sexual assaults under a rug. When politicians cover up affairs or scandals the masses often rise in angry protestations and call for a more transparent government. What is the difference between a government and the Amherst College campus? Why can't we know what is happening on campus? Why should we be quiet about sexual assault?"[60]

When the Amherst case reached national attention, Annie E. Clark and Andrea Pino, two women who were allegedly sexually assaulted at the University of North Carolina at Chapel Hill connected with Epifano, Brodsky, and Yale Law School student Dana Bolger to address the parallel concerns of hostility at their institution, filing Title IX and Clery Act complaints against the university in January 2013, both leading to investigations by the U.S. Department of Education.[62]

Following the national prominence of the UNC Chapel Hill case, organizers Pino and Clark went on to coordinate with students at other schools; in 2013, complaints citing violations of Title IX were filed against Occidental College (on April 18), Swarthmore College and the University of Southern California (on May 22).[63][64] These complaints, the resulting campaigns against sexual violence on college campuses, and the organizing of Bolger, Brodsky, Clark, Pino and other activists led to the formation of an informal national network of activists.[65][66] Bolger and Brodsky also started Know Your IX, an organization of student activists focused on legal education and federal and state policy change.

Title IX has been interpreted as allowing private lawsuits against educational institutions as well as formal complaints submitted to the Department of Education. In 2006, a federal court found that there was sufficient evidence that the University of Colorado acted with "deliberate indifference" toward students Lisa Simpson and Anne Gilmore, who were sexually assaulted by student football players. The university settled the case by promising to change its policies and to pay $2.5 million in damages.[67] In 2008, Arizona State University was the subject of a lawsuit that alleged violations of rights guaranteed by Title IX: the university expelled a football player for multiple instances of severe sexual harassment, but readmitted him; he went on to rape a fellow student in her dorm room. Despite its claim that it bore no responsibility, the school settled the lawsuit, agreeing to revise and improve its official response to sexual misconduct and to pay the plaintiff $850,000 in damages and fees.[68]

The Trump administration has made changes to guidelines that were implemented during the Obama administration. These changes shift the standard of evidence used in Title IX investigations from "preponderance of the evidence" to a "clear and convincing" evidence standard, which is typically used for civil cases in which serious allegations are made (as opposed to the standard of beyond reasonable doubt in criminal cases).[69][70] On September 22, 2017, US Department of Education Secretary Betsy Devos rescinded the Obama-era guidelines which had prodded colleges and universities to more aggressively investigate campus sexual assaults.[71] On May 7, 2020, the U.S. Department of Education released final regulations governing campus sexual assault under Title IX, the first Title IX guidance published by the Office of Civil Rights to go through a formal notice-and-comment process since 1997.[72] Some of the new regulations made in May 2020 involve defining sexual harassment to include “sexual assault, dating violence, domestic violence, and stalking,” as discrimination, as well as require schools to offer attainable options for anyone to report a sexual harassment case.[73] Unlike guidance issued by the Obama administration in 2011 and 2014, they will have the force of law behind them. Colleges and universities will be required to comply with the regulations by Aug. 14.[72]

Between 2010 and 2016, under the Obama administration the U.S. Department of Education issued guidance explaining that transgender students are protected from sex-based discrimination under Title IX. In particular, Title IX of its Education Amendments of 1972 bars schools that receive financial aid assistance from sex-based discrimination in education programs and activities. It instructed public schools to treat transgender students consistent with their gender identity in academic life. A student who identifies as a transgender boy, for instance, is allowed entry to a boys-only class, and a student who identifies as a transgender girl is allowed entry to a girls-only class. This also applies to academic records if that student is over the age of eighteen at a university.[74] The memo states in part that "[a]ll students, including transgender students, or students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender, or gender non-conforming, consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes."[74]

However, starting in 2017 with the Trump administration, several of these policies have been rolled back. In February 2017, the Departments of Justice and Education (headed by Attorney General Jeff Sessions and Education Secretary Betsy DeVos, respectively) withdrew the guidance on gender identity.[75] The Education Department announced on February 12, 2018 that Title IX did not allow transgender students to use the bathroom of their gender identities.[76]

Dwayne Bensing, who worked in the Education department and was in its LGBTQ affinity group, had unsuccessfully asked DeVos not to withdraw the Obama administration guidance. Two years later, in the summer of 2019, Bensing discovered that the Education Department was fast-tracking the Alliance Defending Freedom's complaint against transgender student-athletes, even though the Department's attorneys did not understand the legal basis for doing so and the Department had to pressure other employees. Bensing leaked this information to the Washington Blade and was forced to resign in December 2019.[77] Although Mr. Bensing was educated as a lawyer, he failed to read and understand the full scope of the Whistleblower Protection Act, as amended, as the act only protects federal employees if they disclose suspected crimes and abuses to their supervisor during normal business hours, among other requirements. Disclosing any information outside established channels in the form of “leaks” to journalists at the Washington Blade, et al. do not meet the legal definition of a whistleblower since any information leaked gives the appearance of ulterior motives rather than correcting said abuses using established oversight channels.[78]

In October 2018, The New York Times obtained a memo issued by the Department of Health and Human Services that would propose a strict definition of gender for Title IX, using the person's sex as determined at birth and could not be changed, effectively limiting recognition of transgender students and potentially others. The memo stated that the government needed to define gender "on a biological basis that is clear, grounded in science, objective and administrable".[79] The news brought immediate protests in several locations as well as online social media under the "#WontBeErased" hashtag.[80]

In May 2020, the Trump administration's Department of Education contended that the rights of cisgender women are infringed upon by transgender women. The Education Department stated to withhold federal funding to schools which affirm the identities of transgender athletes.[81]

In August 2020, the United States Court of Appeals for the Eleventh Circuit affirmed a 2018 lower court ruling in Adams v. The School Board of St. Johns County, Florida that discrimination on the basis of gender identity is discrimination "on the basis of sex" and is prohibited under Title IX (federal civil rights law) and the Equal Protection Clause of the 14th Amendment to the US Constitution.[82][83]

In December 2020, the "Protect Women in Sports" Act was introduced to the U.S. House of Representatives. It would block schools from receiving federal funding if transgender girls and nonbinary people are allowed to compete on girls' sports teams at those schools. It was sponsored by Representative Tulsi Gabbard, a Democrat, and Representative Markwayne Mullin, a Republican.[84]