Guests: Donna Hoover, Joy Ma, Rob Patten, Sarah Fields, Susan Ware, Moneque Walker-Pickett, Joanna Harper, Jeffrey Montez de Oca, Tracy Fifer

Resources

• Kicking the Way to Equality: The Story of Donna Hoover, Title IX, and the Equal Protection Clause
• History of Title IX by the Women's Sports Foundation(2019)
• Title IX timeline: 50 years of halting progress across U.S. by The Associated Press (2022)

The Unfairer Sex

Speaker 1 Lost Highways from History Colorado is made possible by a major grant from the National Endowment for the Humanities: Exploring the Human Endeavor, and by the Sturm Family Foundation, proud supporters of the humanities and the power of storytelling for more than 20 years. 

Unidentified sports broadcaster Dawn Staley telling Raven Johnson, do not shoot. 

Noel Black This April of 2024, 52 years after the passage of Title IX, the landmark legislation prohibiting sex discrimination in education, including sports, something amazing happened. 

Kamilla Cardoso checks out for South Carolina, career-high 17 rebounds for her. 

Noel Black Yes, Kamilla Cardoso and the South Carolina Gamecocks beat the seemingly unstoppable Caitlin Clark and the Iowa Hawkeyes to go undefeated for the season. 

Unidentified And Caitlin Clark says goodbye to college basketball. No one has done more to grow the popularity in a broad way of this game, in the history of the game, than Caitlin Clark. 

Noel Black But the even greater achievement, not just for the players or the teams, but for women's sports, was that for the first time ever, more people tuned in to watch the NCAA Women's National Championship than they did the Men's National Championship, which aired the following night. According to the Nielsen ratings, an average of 18.9 million viewers tuned in to the women's game, while an average of 14.8 million watched the men's final. If the game proved anything, it's that equality of the sexes in sports has just as much to do with media attention, the drama of the storylines and the talents of the athletes as it does with gender. But this long fought triumph has also come at a time when sex and gender themselves are being called into question in elite women's sports. Two summers ago, in 2022, a swimmer named Lia Thomas won the NCAA 500 meter freestyle, marking another historic moment in women's sports. It was the first time an openly transgender athlete had won an NCAA national championship. The boos you hear in this video recording of the award ceremony stand in stark contrast to the cacophony of cheers that rang out around the arena at the women's basketball championship. Many people believe that transgender athletes who were assigned male at birth have an inherently unfair advantage when competing against cisgender women. And on April 8th, 2024, the day after South Carolina beat Iowa, the National Association of Intercollegiate Athletics officially banned transgender athletes from competing in women's sports altogether. The NCAA may soon follow suit. For better or worse, Title IX, a 37 word amendment to the Higher Education Act of 1965 that doesn't even mention sports, placed gender and sex at the center of how we define what's fair, and what isn't, in elite sports in the United States. But the division of sports along gender lines was far from inevitable. 

Noel Black From History Colorado Studios, this is Lost Highways - Dispatches from the Shadows of the Rocky Mountains. I'm Noel Black. On this episode, we'll take a look back at how Title IX's passage in 1972 inadvertently codified the separation of sports by sex. And while the law opened the door to equal opportunity in sports and education for women, it also placed sex at the center of how we define fairness without fully addressing issues of equality, where gender and race are concerned. 

Noel Black This summer, on June 1st, the United States Women's National Soccer team will come to Denver to play an exhibition match against Korea. And whether the crowd or the players are aware of it, it'll be a kind of homecoming for the women's game. 

Donna Sorenson So I think it was in '76. I think it was probably my sophomore year that I started playing soccer. When I started playing soccer, it was really just in pick up games, like after school and weekends with some friends of mine who were all guys, and we would just, you know, informally kick the ball around. Nothing sanctioned. And that's really how I got started with soccer. And they all played on the boys' team at our high school.

Noel Black This is Donna Sorenson. Her maiden name is Hoover, and this interview was recorded in 2018 by Joy Ma. Joy's a senior at MIT now, but she was a sophomore and an athlete at Fairview High School in Boulder at the time.  She was looking for a topic for her National History Day project when her tennis coach told her about a Title IX case in Golden, Colorado, that led to the creation and proliferation of girls' high school soccer teams across the United States. 

Joy Ma And I had a close relationship with my tennis coach, and, she's like really involved in kind of what's going on, and I guess Golden is just 20 minutes away, and I heard about this case, which is like one of the first cases after Title IX was passed. And I thought it was just really exciting that it was so close to my hometown. 

Noel Black The case Joy's referring to was Hoover versus Meiklejohn, which was heard in 1977, in Colorado's Federal District Court. Joy looked the case up, started poking around on the internet, and after a few dead ends, she found some of Donna's old teammates and then her coach, Tracy Fifer. And then she finally found Donna herself, who was working at a motorcycle shop in Golden. She interviewed all of them and put together a ten minute documentary called Kicking the Way to Equality: The Story of Donna Hoover, Title IX and the Equal Protection Clause. Spoiler alert: Joy's ten minute documentary won first prize at Colorado's National History Day, and she went on to nationals. 

Joy Ma And that was just a really exciting experience, and I feel, like all of, like the interviews and all of that just paid off. 

Noel Black Joy placed 10th at nationals and then posted her documentary to YouTube, which is where we found it when we were looking for Donna Hoover. So we got in touch with Joy, and after we heard her story about finding Donna, we thought it would be great to include her interviews in this episode. And Joy graciously agreed. So thank you, Joy. And now, back to Donna's story. 

Donna Sorenson And I don't remember how it came about that I started playing on the junior varsity team. I don't know if I asked the coach if I could even play or just showed up one day. I'm not sure how it was, but just ended up playing on the junior varsity soccer team and it was the only team we had in the school, so it was all boys. I was the only girl on the team, but, didn't really think anything about it. 

Noel Black The coach was fine with it and the parents were fine with it, but the Colorado State High School Athletic Association, or CHSAA said,

Sarah Fields No, it's a contact sport, therefore you cannot play. We have banned girls from playing contact sport, which they could do under the rules of Title IX. 

Noel Black This is Sarah Fields, professor of communications at the University of Colorado, Denver, president of the North American Society for Sport History and the author of the book Female Gladiators: Gender, Law, and Contact Sport in America. Though she's a little younger than Donna Hoover, she also grew up playing soccer with boys in the 1970s. 

Sarah Fields It was so much better than softball. I never had to stop moving and it was fabulous and the kids on the team were great. The other guys were, you know, they were my classmates. It was fine. All the kids treated me the same. 

Noel Black But the parents were a different story, especially as she got older. 

Sarah Fields And, people from the stands yelled some nasty things, like, I would go home and ask my parents, you know, what the word "dyke" meant, and "bitch". 

Noel Black Fields went on to play with a girls' team in high school, then stopped playing competitively in college. But her experience playing coed soccer led her to study sports as a historian and sociologist, with a focus on gender segregation. 

Sarah Fields One of the things that people often don't realize is that sport is a relatively modern reinvention. We can go back to the ancient Greek Olympic Games, and that's organized sport and exclusively male. There were parallel games of the, the Hera games, but they weren't nearly as big or dramatic, and they didn't survive historically. So from the very kind of beginning of organized sport, we see a gender segregation. 

Noel Black Modern organized sports, says Fields, didn't begin until the Industrial Revolution. 

Sarah Fields With the Industrial Revolution comes leisure time, and it also comes a shift in labor. Labor stops being agrarian, which requires strength and physical activity and starts being more intellectual, bankers, numbers, things like that. And that leads to the Muscular Christianity movement, of the notion that, especially for white men, if you're a banker and you're not physically big and strong, how do you prove your masculinity? And Muscular Christianity says you go and you do sports. 

Noel Black In other words, sports became a form of masculine leisure for the new leisure class. Fields says Teddy Roosevelt epitomized this movement. 

Sarah Fields They inherited their money, they had all this leisure time, and then they'd stand next to poorer men who worked physically, manually demanding jobs, and they were physically bigger and more imposing. 

Noel Black Later, sports became a way for the urban do-gooders to keep working class boys off the city streets, especially after child labor laws were enacted. 

Sarah Fields You have all these kids, and if they're not working in factories, their fear was they'd be delinquents and cause trouble, especially poorer kids. 

Noel Black Most organized sports leagues and sports facilities in the first half of the 20th century were created by churches and the playground associations, and they were almost exclusively for boys. 

Sarah Fields Nobody was terribly concerned about gangs of young women running around and, and causing trouble. So you got the wealthy doing their thing with physical, wealthy men doing their thing. The poor men are getting instructed by these do-gooders. And the girls are usually excluded. 

Noel Black There were some exceptions. 

Sarah Fields One of the things that, that happens in this time period is what we sometimes called the skirt rule, which is if a woman can participate in the event in a skirt, it's okay for her to do so. 

Noel Black Tennis was one of the sports where women could participate and excel. 

Sarah Fields Suzanne Lenglen, who was a fabulous tennis player in the '20s, was so good that she could hit a ball onto a, her father was her coach, and he was like the first father tennis coach from hell. And he would put his handkerchief out and she had to hit the handkerchief anywhere he put it, and then he folded it, so it was down to like an eighth, and she could hit that. But she was slightly scandalous because she showed her ankles when she played. 

Noel Black Up until about 1970, says Susan Ware, professor of history at New York University and the author of Title IX: A Brief History with Documents, organized sports for girls and women were little more than an afterthought. 

Susan Ware Women's sports are a non-priority for most people. There are women's teams, girls in schools don't, they have some, you know, things like Girls' Athletic League, while the boys have well-established teams and they're supported and all these things. There aren't recreational leagues. And the irony is that women have always loved sports. You know, we know stories of people, women we care about, women like ME who wanted to play but didn't have the opportunities. 

Sarah Fields It gets entrenched in the U.S. that sport is generally a guy thing, and it's the masculine preserve, and we kind of just live with it up until '72, when Title IX passes as part of a massive omnibus education package. 

Noel Black Though few would have known it then, Title IX would become a tidal wave of change for women's sports that started deep in the middle of an ocean of legal text. It's only 37 words, and it says, "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."

Sarah Fields At the time, The New York Times, when they reported on the passage of the whole bill, gave one sentence to Title IX out of a two-page spread. What drew great attention and made the bill super controversial was it banned the use of federal dollars for busing for the purpose of desegregation? And so it, like some of the women who had introduced Title IX ended up voting against the bill because they didn't want to vote against federal funding for desegregation. 

Noel Black Title IX also didn't mention sports at all.  When it was included in the Omnibus Education Bill, it was meant to ensure that women had equal access to education. Up until that point, women were frequently denied access to all manner of educational programs and teaching opportunities. 

Sarah Fields A woman named Bernice Sadler, who sometimes called Bunny, is credited as being kind of the godmother of Title IX. She was working on her PhD at the University of Maryland. It was the '60s. There were, there were academic jobs everywhere in the '60s 'cause everybody was growing and they were hiring people. My dad was a, getting his doctorate in English, and in '68, he didn't have his degree yet and he had, like, eight job offers. And he didn't apply for any of them. They just contacted him and said, do you want to work here? Inconceivable today. But then it was common. 

Noel Black But Bernice Sadler couldn't get a job, even though there were a lot of openings in her field at that time. So she finally asked why. 

Sarah Fields And one of her mentors said, Well, Bunny, you just come on too strong for a woman. And so she got mad, she got upset, she went home and she talked to her then-husband and he said, they're discriminated against you. And she said, huh, she hadn't thought of it in that framework. 

Noel Black She did some research and found that Title VII of the Civil Rights Act of 1964 prohibited job discrimination on the basis of race, color, religion, sex, and national origin. President Lyndon B. Johnson had also signed an executive order prohibiting anybody who did more than $10,000 worth of work per year for the federal government from job discrimination, and that included universities. 

Sarah Fields And so she filed a class action lawsuit against a ton of different universities for violating that executive order. 

Noel Black Sadler's lawsuit got the attention of several women in Congress at that time, including Edith Green and Patsy Takemoto Mink. Green was the chair of the Subcommittee of Higher Education. Green and Takemoto recognized that while there were some job protections for women, there was nothing guaranteeing them equity in education. So they held hearings. 

Sarah Fields And nobody was talking about sport. This was all about access to education. And it wasn't just about the hiring. It was the fact that in 19, as late as 1971, a woman in Virginia couldn't be admitted to the University of Virginia, except in the colleges of education and nursing, can't go to law school, can't even major in physics, can't even major in English. 

Noel Black Susan Ware. 

Susan Ware When Title IX was passed and when it was moving through the legislative process, nobody had a clue that it would have the impact that it had on sports. And I think that goes back to the initial impetus for the law, which was to address broader questions of discrimination on college campuses and in K-12 schools. 

Sarah Fields And only after it gets through, does somebody think, oh, crap, all of our sports programs are run through our educational programs, which is unique to the U.S. No other country does it in quite this way. But if we're gonna use tax dollars to pay for a high school football team, we have to justify it as being an educational experience. And if it's an educational experience, then we have to open it to girls. 

Noel Black And at first, says Susan Ware, the Title IX doors seem to open into a world where everything in education would be treated as gender neutral. 

Susan Ware The model is that, all right, so you just get rid of these distinctions between the sexes. You do a gender blind approach to equality, which is, of course, what, the way that they write the racial equality, the civil rights laws. And that's what most of Title IX does. That's pretty straightforward. If you have a law, if you have a rule that says girls can't do this, but boys can, now everybody should be able to do that. 

Noel Black But that meant that everybody would be able to try out for the football team. 

Sarah Fields And so Congress promptly tried to figure out how to shut the Title IX door on sport. Those bills did not pass. And the best they did was there was an amendment offered in the Senate that passed, which basically said that the Department of Health, Education and Welfare, which was in charge with figuring out how to implement Title IX, that they should just keep in mind that certain sports were super important to Americans. 

Noel Black Gym classes, which were intended primarily for health and recreation, could be coed. But once it became apparent that competitive school sports like football would have to be included under the law, the Department of Health, Education and Welfare put forward two options: segregate sports by gender or make all sports available to everyone. 

Noel Black And the feminist movement was overwhelmingly opposed to all sports teams being open to everyone. 

Susan Ware There was an assumption widely held that if you just combined men's and women's sports, that the girls would be totally frozen out and the boys would dominate. So, now whether that assumption should have been probed a little more at that point, very few people raised it. The National Organization of Women did. Not that they knew much about sports, which is probably why they raised it, but anybody who was in the field, this was just unimaginable that you wouldn't keep men's and women's sports separate. 

Sarah Fields So they went with the gender segregation. 

Noel Black But this presented another problem. If there was going to be a high school football team for boys, then there'd have to be one for girls too, and that would be really expensive. And their solution to this, says Fields: 

Sarah Fields Title IX exempts all contact sport, and that was a nod to the remember, certain sports are super important to American culture, and it was to protect football and basketball. And the argument is that all boys, all males, are bigger, faster and stronger than all girls and all females, and therefore the girls and females will be injured or harmed by playing the boys. And then the secondary argument is if the girl actually by some fluke is better than a boy, it'll destroy the boy's confidence and identity as a man and they will quit. Yes, and that's the fear. 

Noel Black So there didn't have to be a girls' football team, or basketball team, or baseball team or soccer team, because they were all contact sports, and there didn't have to be equal funding. 

Sarah Fields So there's nothing in Title IX that says that the money has to be equal at any level for anything. And the word that sometimes gets thrown around is "equitable", which is different than "equal", and so there's this thing called the laundry list of things to determine if the culture of sport is equitable, and none of those involve equal pay. It says if you pay the men's coach, you have to pay the women's coach, doesn't say you have to pay 'em the same amount, and nobody does. 

Noel Black And so, boys' sports were protected from girls, or as some thought, girls were protected from boys' sports. But either way, the money for boys' sports was definitely protected from girls' sports. But that was just the beginning. 

Noel Black By the time Donna Hoover began to play for the Golden High School junior varsity boys' soccer team in 1976, the decision to separate school sports by sex and by contact had already faced a number of legal challenges. Because baseball involved minimal contact and was an enormously important part of American identity, it was seen as symbolically vulnerable to legal challenges. 

Sarah Fields Baseball was the, a fascinating fight. Baseball's not an enumerated contact sport, but baseball is the quintessential American sport in the '60s and '70s. And so that's the space that girls try to gain access to, and that's where the lawsuits happen, the first. 

Noel Black After baseball, the legal challenges to football began. But it was Donna Hoover and her case against the Colorado High School Athletic Association in 1976 that most fundamentally changed the landscape of girls' sports in schools and colleges in America. 

Donna Sorenson I had a girlfriend who wrote for the local newspaper, The Golden Transcript, as a student writer, and she wrote an article that I have here about one of the games I played in and mentioned that I played in the game. And I think that's how our athletic director of the school first found out that I was playing soccer on the boys' team and didn't allow that, and so I was kicked off of the team. 

Noel Black Up until that point, few among the boys on the soccer team had any problem with Donna playing with them. Here's Rob Patton, who was the goalie of the Golden High School boys' soccer team at the time. 

Rob Patton She practiced with us every day. She tried out for the team. We didn't even think it was weird. You know, we thought it was totally cool, right? This is great. She's pretty good. No one really thought anything of it. 

Noel Black Teacher and head coach Tracy Fifer was new at Golden High School that year. 

Tracy Fifer I became the coach in 1976. So I was, I knew that there was a girl on the team, so I went, I went to the athletic director for the school district. His name was Mel Schwartz. And I asked him, I said, you know, what do I do? I have a girl on the, on the boys' soccer team. Can she play? And his response was no, she, she cannot play. And I, I talked to him for a while, I can't remember exactly the details of our conversation, but I said, well, she had played the year before and he said, it doesn't really matter what happened in 1975. She could not play in 1976. And I asked him, I remember asking him, what would happen if she did play? And he told me he would fire me. 

Noel Black Fifer continued to let Donna practice with the team anyway. And after the first varsity games of the season, he let Donna play with the JV team. 

Tracy Fifer And we were playing Green Mountain, and, one of the Green Mountain parents called afterwards and said, why is this girl playing on Golden High School? So the school administration and Mel Schwartz from the, from the county told me that she couldn't even practice. So I told Donna, I'm sorry, the school district is not even allowing you to practice. 

Donna Sorenson And as I said then a friend wrote an article about me playing in a game, and that's when all the, uproar began about a girl playing on the team. 

Noel Black Donna's mom was having none of it and invited one of the local TV news stations to come do a story at Donna's next game against Columbine High School. 

Tracy Fifer And they came and, and made a story about this girl who wasn't allowed to play, and they put it on the air. 

Donna Sorenson I was kicked off of the team, the athletic director stating that it was to protect me, that it was a contact sport and playing with the boys would be harmful for me. 

Noel Black Again, contact was the issue everyone seemed most concerned about. Women and girls were often seen as fragile, even in sports with as little contact as soccer or baseball, where incidental contact could occasionally lead to injuries. 

Donna Sorenson And so we fought that. I was, I had two sisters, and we had a single, being raised by a single parent, and she taught us to pursue the things that we really wanted to do. There were no limits. And so we looked into what we could do. Hired a lawyer, and it looked like it really was becoming a sex discrimination case. 

Noel Black But not long after, the news coverage brought Donna's case to the attention of the American Civil Liberties Union. 

Tracy Fifer ACLU contacted Donna and said, we think you have a case. You're being discriminated against because you're a female. 

Noel Black So they filed a case in federal court. Even though Title IX passed in 1972, says Sarah Fields, it wasn't slated to take effect until 1978, after the Department of Health and Human Services could sort out all the rules and enforcement. And when Hoover versus Meiklejohn began on April 15th, 1977, the lawyers for the ACLU began arguing it was, in part, a Title IX case. 

Sarah Fields Title IX plays a big role culturally. Everybody thinks it matters, and they think it's in place and people threaten Title IX lawsuits, and Title IX was included as a grounds, as one of the laws violated. It just got tossed immediately, so it becomes about the Equal Protection Clause of the 14th Amendment. 

Noel Black Passed in 1868 as part of the Reconstruction Act, the 14th Amendment was intended to address the legal inequities and racial segregation experienced by the many formerly enslaved Black Americans. It says that no state shall, quote, 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. Even now, says Sarah Fields, Title IX law usually goes hand in hand with the 14th Amendment. 

Sarah Fields The literal language is all persons should be treated equally under the law. It's that simple. We never do it, but that's the ideal. 

Noel Black Donna's case was heard by Judge Richard Matsch in the Federal District Court in Denver. Matsch, says Fields, who later presided over the 1995 Oklahoma City bombing case, had been a football player. He was also a small man, and he'd had to work hard to earn his spot on the team. 

Sarah Fields They go to Judge Matsch and they say, look, soccer's a super dangerous sport. Donna Hoover's only, you, she's like five feet, four inches tall and 130 pounds. She could get hurt. It's dangerous. This is going to be awful for her. 

Donna Sorenson I remember, in the court trial, there were hours of videos we had to watch of soccer teams or soccer games, men's, the boys' soccer teams going on, and they would, the defense would get up there and circle every instance there was contact, because that's where a girl might be more susceptible to injury if they were playing. So, portraying us not as fragile but just more susceptible to injury. 

Sarah Fields The problem was their audience. One of Matsch's most proud possessions was his high school football championship ring that he won in Iowa, and the man was not big. He probably wasn't that much bigger than Donna Hoover. 

Noel Black Matsch also had four daughters who played on coed sports teams, and he was transparent about this and even offered to recuse himself from the case. 

Sarah Fields What I like about this case that I find really fascinating is, law is personal. It does not happen in a vacuum. 

Noel Black And the CHSAA lawyers didn't take any of Judge Matsch's personal story into account. As a small football player who'd won a championship and as the father of four female athletes, he just didn't see soccer as dangerous. 

Sarah Fields They didn't do any research and they didn't think it through.  I'm a communication professor, you're supposed to think about your audience and they didn't. It was a topic that was close to his heart and he didn't buy any of it. 

Noel Black Adding to the problems with their arguments, they admitted in their brief to the court that there was no rational basis for excluding Donna or any other woman from the opportunity to play soccer. They argued that while it was, quote, true that while males as a class tend to have an advantage in strength and speed over females as a class, the range of differences among individuals in both sexes is greater than the average differences between the sexes. It also hurt CHSAA's case that they had already sanctioned girls' teams in basketball, gymnastics, swimming, tennis and track on a separate but equal basis.  And so Matsch ruled against CHSAA, declaring their prohibition of girls' soccer to be unconstitutional, stating, quote, there is no rationality in limiting this patronizing protection to females who want to play soccer. 

Donna Sorenson And, when it was finished, the Colorado High School Activities Association had three choices. They could either make it a coed team or provide an equally funded separate girls' team, or quit high school sanctioned soccer in all of the high schools throughout Colorado. 

Noel Black And that's what CHSAA did. They got rid of all boys' soccer teams throughout Colorado. 

Donna Sorenson Then I really got some interesting letters and contacts after that. 

Noel Black Donna was devastated, says Tracy Fifer, her coach, who had risked his job by letting her play with the JV team, then testified on her behalf at the trial. 

Tracy Fifer It was an emotional year for her. It was very hard, especially after they decided to get rid of soccer. She felt so guilty because now nobody was playing soccer. 

Donna Sorenson So I thought, what have I done, have I, you know, ended, you know, soccer in the state of Colorado?

Noel Black Donna was harassed and got angry letters and phone calls. 

Donna Sorenson The most traumatic thing is, I didn't realize what it would take to get to that level with some of the harassment and people not understanding and thinking I was out to destroy soccer entirely. And, what were the next steps going to be? There was a lot of concern about what would happen with some of the women's teams that were out there. Would they then have to go coed, or would an equally funded separate boys' team become available? It would have definitely felt like history had put a big black mark next to my name. 

Noel Black But the outcry against CHSAA after Judge Matsch's decision, says Tracy Fifer, was massive. 

Tracy Fifer And it was only a month or two that they decided not to do soccer, then they were pressured to bring it back. 

Sarah Fields So they, Golden started their girls' soccer program not long after Donna Hoover filed her lawsuit. 

Noel Black And though Tracy Fifer did lose his job as teacher and soccer coach, the ruling came just in time for Donna to play varsity soccer for the Golden High School girls' soccer team during her senior year. Though Donna Hoover's case has been largely forgotten, Sarah Fields says that Judge Matsch's decision was a key factor in the growth of women's soccer in the U.S. after Title IX went into effect in 1978. 

Sarah Fields Across the country, suddenly girls' soccer teams began appearing. 

Noel Black Though there were already boys' teams, Title IX inadvertently helped women's soccer grow wildly throughout the United States in the 1980s at the high school and collegiate levels. And not necessarily just because it was popular among girls, which it was, but also because it was cheap. Remember, Title IX didn't mandate equal funding of men's and women's sports. 

Sarah Fields Well, if you want to protect football, you got to add women's sports. If you want to protect your budget, you got to add cheap women's sports. And soccer was a cheap sport to add. 

Noel Black Soccer required minimal equipment, and the girls' teams could use the boys' uniforms and the same soccer balls. And sure, if the boys' coaches were paid, then the girls' coaches had to be paid too. But again, there was also nothing in Title IX that said that pay had to be equal. 

Noel Black Youth soccer for boys and girls was huge by the 1980s, says Sarah Fields. But it grew among girls even more at the high school and collegiate levels. 

Sarah Fields The girls don't have the option when they get older to switch into lacrosse or football or something else, so they stay with soccer. There was more continuity, and so that becomes part of the growth. 

Noel Black In 1981, the first National Collegiate Women's Soccer championship was held at Colorado College in Colorado Springs. And a decade later,

Unidentified That's one last throw of the dice for Norway to try find an equalizer. It's all over. The USA women's team are the World Champions. 

Noel Black The U.S. won their first Women's World Cup over Norway in China, a feat never achieved by the U.S. men's national team in the 96 years since the Men's World Cup began in 1930. And all of this is great insofar as Title IX created a kind of equality or fairness within the construct of the gender binary of male and female. But there were other inequalities built into Title IX that have become more apparent as time has passed. The disparity in funding is a huge one, but there are racial and other gender inequities too, that have only become apparent as Title IX has been implemented over the past 50 years. 

Moneque Walker-Pickett My name is Moneque Walker-Pickett. I'm a faculty member and chair of the Department of Criminal Justice at Saint Leo University. Although my academic background is in sociology, I have a PhD in sociology with a concentration in Race Method Relations from the University of Miami, and I also have a law degree from the University of Florida. 

Noel Black When Moneque Walker-Pickett went to the University of Miami in the early 1990s, Title IX had changed the landscape of women's sports at the collegiate level. There were scholarships, more women participating, and more opportunities in different sports than ever before. But...

Moneque Walker-Pickett Most of the women student athletes and the student athletes of color with whom I became acquainted were playing basketball, or they were in track and field, for example. 

Noel Black But Moneque was curious about some of the new sports offered. 

Moneque Walker-Pickett So I saw a sign that said, hey, are you interested in rowing? And I thought, well, that's a, that's a sport I've never really considered. 

Noel Black But when she showed up for tryouts,

Moneque Walker-Pickett There weren't women who looked like me who were on the crew team. 

Noel Black Crew, which is a rowing sport, was brand new to the University of Miami at the time, and it was still a club sport. Other universities had added crew as a women's sport too, and very few of them that Miami competed against, says Walker-Pickett, had women of color on their teams either. Her experience got her interested in how Title IX had benefited women of color, and when she got her doctorate later in the 2000s, she wrote her dissertation about it. It's called The Invisible Black Woman in the Title IX Shuffle: An Empirical Analysis and Critical Examination of Gender Equity Policy in Assessing Access and Participation of Black and White High School Girls in Interscholastic Sports. 

Moneque Walker-Pickett We knew on paper that Title IX has increased the participation of women in sports. So just thinking broadly a little bit further about that, well, has it helped all women equally in terms of their access and participation in sports? And that really is just what the foundation of it was, is, you know, looking to see that all women have had equitable access to higher education through the vehicle of sports. 

Noel Black She had four massive data sets on women's education and women's sports since 1972, when Title IX was passed, available to her at the time: the National Longitudinal Study, the High School and Beyond Survey, the National Educational Longitudinal Survey, and the Educational Longitudinal Survey. And when she analyzed the data, what she found didn't surprise her. 

Moneque Walker-Pickett When you started in 1972 versus at the time when I was looking at the data, 2006, 2007, right, you find that there certainly had been an increase in participation of women in sports, and that's consistent with their participation in the academy in general, right, with their enrollment in universities across the country. 

Noel Black But when she looked at the numbers and the types of sports in which women were participating and looked at what sports the scholarship athletes of color were playing, the numbers told a different story. 

Moneque Walker-Pickett So, for example, the most highly represented sport, I believe, was track and field, right, and you also had basketball, when you're looking at sports in which Black women tended to participate in. And then you had emerging sports like fencing, like equestrian activities, like crew, right, rowing. And in those types of sports, using educational longitudinal data and looking at the types of sports that other young women were participating in before they even get to college, you found that there was a concentration of Black and Brown women participating in basketball and track and field, and then you found that fewer women of color were participating in the emerging sports. 

Noel Black In other words, though the variety of sports opportunities had expanded for women since 1972, most of those opportunities had been filled by white women. Walker-Pickett points to crew as a perfect example. 

Moneque Walker-Pickett In 1991, when I was a rower, in terms of looking at the data that the NCAA had, there were about 1,020 Division I women athletes participating in crew. In 2015, there were 5,653 Division I athletes, women athletes participating in crew. Okay. So you can see that the number of participants in that sport has grown, right? Whereas the, the participation rates in, once again, the powerhouse sports like basketball and track and field, were relatively stagnant. 

Noel Black And she found that this tendency held true throughout collegiate athletics. 

Moneque Walker-Pickett When you have the emerging sports and you find that women of color are not participating in those emerging sports, then they're also are not availing themselves of those opportunities to participate, right, at the collegiate or university level. Those opportunities really are only going to women who don't identify as women of color. 

Noel Black And it wasn't that women of color couldn't perform at the highest levels of these newer opportunities, but that they hadn't had the opportunities as children. Most public schools, especially where Black or Brown people grew up, didn't have crew or equestrian or fencing. Those sports were offered either in wealthier school districts or at elite private schools. 

Moneque Walker-Pickett At the time when Title IX was passed, women still either, I mean, we were forbidden, right, from even majoring in chemistry and sciences, right, in those difficult fields. And, you know, had to get permission from husbands if we want to do certain things. Right. So our numbers were so low as women, and now women make up the majority of collegiate students, right? So that, that's wonderful. Title IX was great in that regard. But once again, when you're looking at the number of female or women students who are participating in sports at the collegiate level, they're also still predominantly white, right, and it really boils down to the access to these emerging sports. 

Noel Black In 2009, the same year that Moneque Walker-Pickett wrote her dissertation, another issue arose with fairness in women's sports that few in 1972, when Title IX was passed, could have anticipated. 

Unidentified Semenya looks over her shoulder and she's away, 10 meters, it's the 15,  15 to 20, and the others cannot respond. Christian is still in second place. DeCosta is holding on.  The winning time is going to be terrific. She comes through, 1:55, 1:55, and in the end...

Noel Black A young middle distance runner from South Africa named Caster Semenya won gold in the women's 800 meters at the World Track and Field Championships in Germany. But just three hours after her victory, the International Amateur Athletic Federation asked Semenya to take a sex verification test.  Though she was never accused of cheating, there were suspicions that Semenya may have had a, quote, unfair advantage based on her biological sex, which didn't fall neatly on either side of the male or female line on which sports had been divided. 

Joanna Harper It's important to differentiate between competition advantages and category advantages. 

Noel Black This is Joanna Harper.  Harper is transgender and a competitive runner. She's also the author of Sporting Gender: The History, Science, and Stories of Transgender and Intersex Athletes. 

Joanna Harper Competition advantages are those advantages that are part and parcel of any given competition. Being left-handed is an advantage in many sports and in North America, sort of the classic example is baseball, of course, and it's advantageous to be left-handed unless, of course, you're a shortstop. Pitchers and batters especially, it's advantageous to be left-handed.  But, there's a mix of left-handed and right-handed, and right-handed people can be very successful in baseball, so it's a competition advantage to be left-handed, but it's not necessary to create a whole category. So there's not left-handed and right-handed baseball. 

Noel Black Being seven feet tall is also considered a competitive advantage in basketball, as is having certain genetic advantages in many sports up to a point. However. 

Joanna Harper Then there are category advantages where the advantage is so large that we need to separate people on categories based on, on this advantage. If we look at boxing, size is such a difference that a little boxer cannot beat a big boxer. So we have weight categories in boxing. 

Noel Black Some of the categories that determine fairness can seem like common sense. Separating certain men's and women's sports under Title IX's contact rules was one of those decisions about categorical differences, and having different weight classes in boxing is another. But then there are blurry or genetic advantages, like seven foot tall basketball players, and all forms of doping are considered an illegal categorical advantage by world sports authorities. But things have gotten a lot more complicated over the past 15 years, where sex and gender are concerned. When Title IX was passed in 1972, few people questioned the binary nature of sex and gender, and the differences between men and women were considered a categorical difference. There was no reason to question or doubt this binary, because our culture and our language had enshrined it, and most of humanity fits neatly into this binary, says Joanna Harper. But science and our biology tell a more complex story. 

Joanna Harper Somewhere between 98 and 99% of humanity fall quite neatly in the categories of male or female. But one and a half percent of humanity equals a hundred million people. And that's, that's a lot of people on the planet who don't fall neatly into the sex /gender binary. 

Noel Black And of those hundred million who don't fit neatly into the gender binary? 

Joanna Harper These people can broadly be sorted into two categories. One category could be described as intersex people, or people with variations of sex characteristics or, or differences of sex development. And these people have some sort of chromosomal and/ or physical characteristics that somehow blur the line between male and female. 

Noel Black There are multiple manifestations of these differences of sexual development, or DSDs, says Harper. 

Joanna Harper A relatively common condition is congenital adrenal hyperplasia, where the adrenal glands don't work the same way as they do in other people, and it can lead to substantial levels of androgens in people with XX chromosomes, who we would normally call women, and they can develop some fairly masculine characteristics. 

Noel Black Androgens are hormones, and the most common androgen is testosterone. But women born with congenital adrenal hyperplasia don't normally have testosterone levels high enough to matter where elite sports are concerned. 

Joanna Harper Less common, but of more interest to sports, are people with so-called XY DSDs. 

Noel Black And probably the best known athlete with one of these XY differences of sexual development is Caster Semenya. After her controversial 2009 sex verification test at the World Championship in Germany, it came to light that Semenya had a DSD called 5-alpha reductase deficiency, which falls under the broad category of intersex, which means to have some combinations of both male and female biological characteristics. 

Joanna Harper And very often, these people are born with female typical genitalia and so are assigned female. But these people do go through a testosterone fueled masculinizing puberty, and in most ways these people are phenotypically male, but they were assigned female at birth. 

Noel Black This also meant that Semenya had much higher levels of testosterone than most phenotypical females. 

Noel Black The line between a genetic hormonal advantage and a legal doping with hormones has also become difficult to parse in the past decade, says Travis Tygart, CEO of the United States Anti-Doping Agency, or USADA. 

Travis Tygart And so, you know, World Athletics, which is the global body for track and field in the Caster Semenya case, you know, they, I think, lowered the testosterone for female entrants to ten nanomoles per milliliter. 

Noel Black In other words, Semenya, by virtue of being born with intersex biological characteristics, has what World Athletics deems an unfair categorical advantage over her fellow female athletes. And after Semenya won gold at the 2018 Olympics, the International Amateur Athletic Federation banned female athletes with DSDs who didn't lower their testosterone levels below five nanomoles per liter.  But they were only banned from the 400, the 800, the 1500 and the mile,  events that Semenya competed in. Semenya sued the IAAF multiple times but ultimately lost. Then, in 2023, the IAAF lowered the testosterone threshold even further, to 2.5 nanomoles per liter. In some ways, they seem to be saying that athletes with DSDs were inadvertently doping and requiring them to take performance de-enhancing drugs. I asked Travis Tygart about the ruling. 

Travis Tygart I think it's, it's them trying to provide fairness for this category of female runners based on, you know, what they think is the right way to define what fairness looks like within that category. And that's what, that's what sport's all about, is defining these rules. You know, not everybody's going to like them, and maybe they evolve and change over time, based on science and culture and legal, you know, elements that might have a play into them. But, but at the end of the day, publish in advance, everybody has an opportunity to know what they are, they're enforced fairly, you can challenge them if you, if you can. And there is a process, at least in the Olympic, Paralympic world, for that to be challenged. 

Noel Black For Caster Semenya, taking estrogen was the equivalent of a seven foot tall basketball player being asked to compete on their knees. In an op-ed for The New York Times in 2023, Semenya wrote, "When they announced the regulations in 2018, the IAAF offered women with DSD who refused the medication but still wanted to compete, what it surely felt was a generous and sympathetic offer. We could change our distances, run any distance we wanted in the male category or run in some future intersex category, should it ever become available. But all these suggestions are insulting. I am not a man. I have spent years and legal battles fighting to be able to race without restrictions. But today I could compete only if I altered my hormone levels. For me, participating in a third category of human gender identity would be accepting being othered, accepting the discrimination that I had fought against. It would mean giving up the identity I'd been born with and had never questioned, to take on a new one I didn't believe.". 

Noel Black Semenya has since competed in races at distances that don't require her to alter her hormones. But she's never returned to her championship form. While Caster Semenya's case hasn't had a direct effect on Title IX in the United States, the issues it raises around gender and how equal opportunity is applied when sex is biologically unclear, are far from resolved.  And there is at least some clarity now about the rules for DSD athletes in international competition. However,

Travis Tygart The other branch of gender diverse people are transgender people, and the biological differences in transgender people are less obvious if you're looking at a trans person before they undertake medical transition.  They develop pretty much the same as any person of their natal sex or how we were assigned at birth. 

We are. 

Noel Black Lia Thomas's victory in the 500 meter freestyle brought the issue to the surface in American culture in 2022. 

Travis Tygart And so the question, especially around transgender women in particular, is, are the advantages, and trans women undeniably have some advantages over cisgender typical women. Are those advantages so great that they are category advantages, or are these advantages small enough that they can be considered competition advantages? 

Noel Black As things stand, transgender athletes face very different questions than DSD athletes. For one thing, most trans athletes take hormones in prescribed doses that bring them within the average hormonal ranges of cisgendered athletes. But, if an athlete like the transgender swimmer Lia Thomas transitions after puberty, then her body will almost certainly have already experienced a number of physiological advantages, like height and muscular development, from having developed with testosterone. And there's currently no clear way to measure or regulate those advantages. 

Noel Black The history of Title IX and its evolution as a legal remedy for women seeking equality in sports was often a process of defining what constitutes a contact sport, whether women should be allowed to participate in contact sports from baseball to basketball, football, boxing and wrestling. And so, the law, along with the Equal Protection Clause of the 14th Amendment to the Constitution, became a way of challenging the very definition of what it meant not just to be a woman in America, but all the presumptions about gender in sports. Here's Sarah Fields again. 

Sarah Fields The basic argument is always the same, and this is an important argument because it's, it shows up with trans kids today. And the argument is that all boys, all males, are bigger, faster, and stronger than all girls and all females, and therefore the girls and females will be injured or harmed by playing the boys. 

Noel Black The problem with this argument, says Fields, is that it doesn't address the fact that males injure one another all the time. The rate of ACL injuries, for example, are far higher among boys and men in football than they are in women's soccer. So if the issue is protecting children from harm, says Fields, then why are boys allowed to play football at all? Ironically, says Fields, this same logic is now being applied to transgender athletes in women's sports. 

Sarah Fields And that's what we see with the trans kids argument, is that the kids who transition are somehow inherently better athletes and more talented and bigger, stronger and faster and are going to harm the quote, unquote real girls who play. 

Noel Black Travis Tygart. 

Travis Tygart But now we have to put a system in place that's going to protect athletes' rights and, and regulate, fairly across the board so that all athletes have an opportunity to compete on a level playing field. 

Noel Black The term "level playing field" is used all the time in sports as a stand-in for fairness, and most people want to believe that it's possible for sports to be fair. But part of what makes sports so compelling to watch is that we aren't all created equal, where genetics are concerned. 

Jeffrey Montez De Oca We have this idea of fair play and cheating, and the assumption is that the competition is fair. But the reality is, there are all sorts of inequalities in the competition and that is unavoidable. 

Noel Black This is Jeffrey Montez De Oca. He's a professor of sociology at the University of Colorado, Colorado Springs, and the founding director of the Center for Critical Sports Studies. He's also the author of the book Doping in Elite Sports, which looks at the culture of doping in French cycling. 

Jeffrey Montez De Oca We have a set of institutions that tells us competition and winning is a normal, natural and revered aspect of the human experience. And so then we teach people, right?, these values of competition brings out the best in people, and it teaches them to strive to, to do better than they could otherwise. And there is, of course, a truth to that. And it works in the world that we live in, right? But we live in a world that is structured by competition, and a world that teaches people to think about themselves as individuals constantly trying to win. 

Noel Black And part of that culture has been prioritizing men's sports over women's. 

Jeffrey Montez De Oca It just so happens the sports that we adopted in the 20th century really favor bodies with greater upper body physicality. And so the sports that we embrace are constantly proving what we already believed, that male bodies are superior to female bodies. And that has all kinds of implications outside of the sporting world in, how we organize the home, how we organize our schools, how we organize our workplaces, how we organize bodies within those different institutional spaces. 

Noel Black While the explosion of women's sports after Title IX is undoubtedly a net positive for women, says Montez De Oca, it doesn't inherently change the way our society is organized around the gender binary. And when transgender athletes or athletes with differences of sexual development arrive at the doorstep of elite sports, their bodies call that whole binary, including Title IX, into question. 

Jeffrey Montez De Oca And so, that leads to these tremendous debates about which bodies should be allowed, in which sporting spaces.  Should a body that's assigned male at birth be allowed into a space that is designated as a female space, even if that person has transitioned and is not a male body in their everyday lives, right? They've, you know, is, a trans, a trans woman, you know, participating in women's, sports. It raises all sorts of deep-seated anxieties that people have, and it forces us to question the fundamental institutions that organize our world. We're just right now talking about sport, right, so I'll just stick to, to sport. And so, if sport is designed to reveal truths about bodies, then, if the categories that we have used to organize that institution are in question, then what else in our world is in question? What else in our world is in transition? And that's terrifying, to think that the world we live in may not be as solid as we think it is. 

Noel Black So how will we level the evolving sex and gender playing field under a law like Title IX? How will sports come to terms with what we may never be able to fully define or relegate to tidy categories, which we can tell ourselves can bear the weight of our ideals of fairness and equality?  Or is it even possible to achieve, in a sporting world where the line between hormones and doping and categorical and competitive advantages seem to get blurrier all the time? For Sarah Fields, it's important to remember that the spirit of Title IX is about equal opportunity in education. 

Sarah Fields When I talk to my students, I make them define sport, because to me, there are two forms of sport. There's participatory sport where everybody gets to play, and I see huge amounts of value to that. And then there's elite sport. And the elite sport is patently unfair. 

Noel Black While Title IX is credited with everything from the many Women's World Cup soccer victories over the past 30 years, to the growing popularity of professional women's sports leagues in the United States and abroad, it was always meant to be about leveling the playing field at the educational level. And Fields believes that when everyone in school participates, you can create levels of fairness in different, far more inclusive ways that take gender out of the picture. 

Sarah Fields Whether it's age, size, skill level, there are lots of different, more comparable things that would be far more effective than gender. And it also takes out the issue of gender identity as it no longer matters. You play based on your skill level, your size, and your age. Nobody cares about the gender. 

Noel Black Fields points to Norway, which has had great success with banning competitive sports for children under 13 and mandating coed participatory sports. And the upshot for Norway is that they've also seen a significant increase in the number of elite athletes competing and winning at the international level, in part because kids who develop physically at different rates stay in sports for longer through their schools. As far as fairness goes with elite sports, Fields believes that testing for hormone levels could solve many problems at once, including doing away with the gender binary. 

Sarah Fields Why do we need a gender binary in sport, which was created fairly arbitrarily? We could, we could do all kinds of interesting things, whether it is completely medicalization, but is taking a different approach. If we rethink and redefine, there, there are interesting options. 

Noel Black A transgender or DSD athlete could, says Fields, compete against any gender within a specific range of testosterone levels in the same way that boxers compete by weight. Athletes who dope would have to compete against other athletes who dope. And there is, in fact, an enhanced games in the offing where only athletes who dope will compete.  And maybe truly elite women's basketball players like Caitlin Clark and Camila Cardoso could play in the NBA. And then there's the option of separate gender categories, like weight classes. The Boston Marathon just added a separate non-binary category for transgender and DSD athletes, and it was approved by the United States Anti-Doping Agency. Joanna Harper doesn't think we'll do away with the gender binary in sports anytime soon, but does think that hormone testing is the future, and only in certain sports. 

Joanna Harper In general, if you allow a trans woman who's been through masculinizing puberty to compete in women's competition without suppressing testosterone, then you're going to have a huge competitive imbalance. But, in endurance events, I think it is probably true that overall, there's not going to be this huge difference in competitive placings. I think that might not be true in, say, in strength sports. 

Noel Black So Caster Semenya, as Harper sees it, would still need to take testosterone suppression drugs to compete fairly. And she thinks swimmer Lia Thomas probably shouldn't compete against cisgender women. But she's also careful to note that Lia Thomas is, with her NCAA victory in the 500 meters, thus far the most successful female transgender swimmer in the world, and that no other trans feminine athletes have ever made it onto the podiums at the highest levels of elite sport. And, says Harper. 

Joanna Harper We talk about the advantages that trans women have, and they certainly exist. But trans people in general, including trans women, face huge disadvantages, psychosocial disadvantages. And, you know, the idea that it's all one way, that trans women only have advantages, it certainly isn't true. And when we're crafting rules, I think we need to consider that we're dealing with very marginalized population. Trans women, in general, do not tend to participate in sports. 

Noel Black Jeffrey Montez de Oca thinks the larger problem with sports, particularly in American culture, is that we mistake the idea of fairness in sport with our idealized cultural values, such as equality. And the rules of sport always tend to reflect a culture's values. So while testing hormone levels may seem to promise greater fairness and equality, he says, it's also missing the point. 

Jeffrey Montez De Oca For me as a sociologist, I would go back to, these are not biological questions, these are social questions. And it's a lot harder to work through these social questions. 

Noel Black Again, Travis Tygart, the CEO of the United States Anti-Doping Agency, believes fairness, now and in the future, is a matter of transparency. 

Travis Tygart I think sport, you know, should set rules that create as level and fair of a playing field as they possibly can.  And those, and those rules hopefully aren't arbitrary. Hopefully they're, they're published in advance. You know, they have to be robustly enforced. And of course, you hope there's some opportunity to, to challenge those rules. 

Noel Black Though the future of Title IX and the gender binary as a defining aspect of sports is unclear, it will always take someone like Donna Hoover, someone with a fight in them, who just loves the game and wants to play, to challenge the rules and redefine our perception of what's fair. 

Donna Sorenson I think the most important thing is to pursue your dreams and don't let obstacles stop you in that, from kicking around a soccer ball with friends, to deciding I had a real passion for the sport, really enjoyed it, and developed great friendships from it that didn't let something as far as my being a girl, never being a boy, determine that I could not do the same things, that I was just as equal, maybe I had to fight a little harder to get there, but to not let that deter you. Pursue those dreams and those goals and, don't look back. 

Noel Black Lost Highways is a production of History Colorado and History Colorado studios. It's made possible by a major grant from the National Endowment for the Humanities: Exploring the Human Endeavor, and by a founding grant from the Sturm Family Foundation, with particular thanks to Stephen Sturm and Emily Sturm. You can find links to other episodes of Lost Highways at HistoryColorado.org/LostHighways. Many thanks to Tyler Hill, who produced this episode. Special thanks also to Susan Shelton, our history advisor to Chief Creative Officer Jason Hanson; to publications director Sam Bok, and to Ann Sneesby-Cook for her newspaper and periodical research; to Kim Kennedy-White for her voice work; and to History Colorado's editorial team, Lori Bailey and Devin Flores. If you'd like to see a transcript of any of our episodes, either as a matter of accessibility or because you'd like to use Lost Highways in your classroom, you can find them at HistoryColorado.org /LostHighways.  The Merry Olivers composed the music for this episode and our theme is by Connor Briggle. Many thanks to our editorial advisors Sean Boyd, Eric Carpio, Terry Gentry, Chris Jurgens, Aaron Marcus, and Ann Sneesby-Cook, and to our advisory group Susan Shelton, Thomas Andrews, Tom Romero, and Kara Duguette.  Finally, a huge thanks to the entire staff at History Colorado. And thanks for listening. I'm Noel Black.