Dunn: Title IX, Swamps, and Alligators

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Linda Dunn

While Title IX has eliminated many discriminatory practices and opened doors for those who were previously excluded, its 50-plus years effort sometimes reminds me of a sign a co-worker had at his cubicle:

“When you’re up to your neck in alligators, it’s hard to remember that your initial objective was to drain the swamp.”

The legislators who deserve the credit (or blame) for the initial effort to “drain this swamp” were two women who were well experienced with this type of alligator wrangling.

Patsy Mink was the first Asian-American woman to serve in Congress. She had planned to become a doctor but was denied admission by 20 medical schools and thus studied law instead. When she was unable to find employment in the legal field after graduation, she entered politics and was elected to Congress as a representative from Hawaii.

Edith Green was chair of the House’s Special Subcommittee on Education. She was often called “Mrs. Education” and the “Mother of Title IX.” She was responsible for incorporating what became Title IX into a larger — and must-pass — higher education bill that made huge gains in reducing sex discrimination in education.

Their objective was to “level the playing field” in 10 key areas:

Access to higher education, career education, education for pregnant and parenting students, employment, learning environment, math and science, sexual harassment, standardized testing, and technology.

To achieve this, the Education Amendments Act of 1972 simply stated: “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 under any education program or activity receiving Federal financial assistance.”

The text says nothing explicitly about athletics but sports is what most of us associate with Title IX. The NCAA (National Collegiate Athletics Association) opposed the act immediately and took their case to the Supreme Court. There, they won a ruling in 1984 that the “non-discrimination and compliance requirements applied only to educational institutions that received financial assistance provided directly to its students.”

In 1988, the Civil Rights Restoration Act of 1987 clarified that a “program or activity” refers to all operations of an institution whenever financial assistance is extended to any part of an institution. Reagan vetoed the legislation. Congress overrode it with a two-thirds majority of the House and Senate.

Opponents often complained that Title IX hurts boys’ sports by taking funding from them to support girls’ sports. This, despite the NCAA’s 1997 study revealing female college athletes received only 23 percent of athletic operating budgets, 38 percent of athletic scholarship dollars, and 27 percent of the money spent to recruit new athletes.

But the tables have now turned and the current complaint is that “boys are ruining girls sports” — by changing their gender to female and competing in girls sports.

Given the loud public outcries by politicians and pundits, you’d think there were boys queued up at every school, eager to undergo a gender change so they could join a girls team.

Actually, these cases are extremely rare.

Save Women’s Sports, an organization advocating for banning transgender athletes from competing in girls’ sports, could identify only five transgender athletes competing on girls’ teams in school sports for grades K through 12. Researchers estimate the number of transgenders playing girls sports in high school to be less than 100 for our entire country.

The primary objective of Title IX was to avoid the use of federal resources to support discriminatory practices in education programs. We seem to have forgotten this as we’ve become trapped by a congregation of alligators engaged in a culture war over how to view sex differences, gender roles, and sexuality in general.

On April 6, the DoE (Department of Education) proposed a change that would prohibit districts and states from “categorically banning transgender students’ participation on athletic teams aligning with their gender identities.” At the same time, however, this update offers flexibility and guidance in establishing team eligibility for participants that can include transgender bans. The proposal received over 150,000 during the public comment period April 12 – May 15, 2023 and is scheduled to be implemented in October of this year.

This is a common-sense approach that is long overdue and one that will probably not be accepted by those “alligators” seemingly determined to engage in culture wars to impose political solutions upon educational issues.

I’d like to suggest that we all pause a moment to consider the following:

Transgender students represent less than 2% of students, only about half of them were born male, and most of them don’t play girls sports.

The gender divergence in athletic performance begins at the age of 12-13 years and reaches adult plateau in the late teenage years.

Given those facts, it appears the DoE update is a reasonable attempt to continue toward our objective of draining the swamp while dodging alligators.

However, about a third of our transgender high school students attempt suicide compared to about 9% of the general high school population.

Three out of four transgender students report feeing unsafe in school and one-tenth of those reporting this noted school staff members were part of the harassment or physical assault they experienced.

Why is there no outrage that “children with gender dysphoria are being discriminated against and bullied in schools?”

It seems like the alligators are winning.

A lifelong resident of Hancock County, Linda Dunn is an author and retired Department of Defense employee.