Law Commons^™

The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake

Articles

The scope and pace of legislative activity targeting transgender individuals is nothing short of a gender panic. From restrictions on medical care to the regulation of library books and the use of pronouns in schools, attacks on the transgender community have reached crisis proportions. A growing number of families with transgender children are being forced to leave their states of residence to keep their children healthy and their families safe and intact. The breadth and pace of these developments is striking. Although the anti-transgender backlash now extends broadly into health and family governance, sport was one of the first settings—the …

Title Ix's Trans Panic, Deborah L. Brake

Articles

Sport is an agent of social change, but that change does not always track in a progressive direction. Sport can be a site for contesting and reversing the gains of progressive social movements as much as furthering the values of equality and justice for historically marginalized groups. This dynamic of contestation and reversal is now playing out in a new wave of anti-transgender backlash that has gained adherents among some proponents of equal athletic opportunities for girls and women. In this latest twist in the debate over who deserves the opportunity to compete, the sex-separate athletic programming permitted by Title …

The Evolution Of Title Ix And Transgender Rights- A Comparative Study Of Title Ix Debates With Recommendations For Integrating Transgender Rights Into Title Ix Legislation, Jaymie Bianca

Senior Theses and Projects

This project views Title IX through a lens pertaining to transgender rights. It examines the historic adaptation and expansion of Title IX, and how it historically has not expanded to include transgender individuals. The project pays particular attention to the difference between the definitions of sex and gender, the bathroom and athletic debates in relation to transgender rights, and includes recommendations in order to properly include transgender individuals in Title IX legislation.

Reproducing Inequality Under Title Ix, Deborah L. Brake, Joanna L. Grossman

Articles

This article elaborates on and critiques the law’s separation of pregnancy, with rights grounded in sex equality under Title IX, from reproductive control, which the law treats as a matter of privacy, a species of liberty under the due process clause. While pregnancy is the subject of Title IX protection, reproductive control is parceled off into a separate legal framework grounded in privacy, rather than recognized as a matter that directly implicates educational equality. The law’s division between educational equality and liberty in two non-intersecting sets of legal rights has done no favors to the reproductive rights movement either. By …

Title Ix And The Responsibility Of Leadership In Collegiate Athletics, Regan J. Mccomb, Chelsea Kaunert

Honors Theses

Typically, when we hear about Title IX, we think of scholarship dollars, ratio of men’s and women’s sports, and equal funding, but in the past several years we have seen a shift in focus to sexual misconduct. Studies have repeatedly shown that sexual assault rates on college campuses are not on the decline. With one in five college students graduating a victim of sexual misconduct, we must now demand more of those we consider leadership in the university setting. Recently we have seen a trend of prominent women, including female athletes, speaking out about their experience with sexual assault. We …

#Metoo Movement: Solutions, Raquelle A. Walker-White Ms

Undergraduate Research

Sexual assault and sexual harassment is a prevalent issue that affects women at disproportionate rates on college campuses, in the workplace and in society in general. The #MeToo movement aims to bring discussion around these issues, hold sexual predators accountable for their actions, and provide a support system for survivors of sexual assault and harassment. #MeToo Movement: Solutions analyzes the scope of the problem in the United States, famous cases surrounding sexual assault, and the different solutions colleges, society in general, and legislation have put in place to combat this issue. The #MeToo Movement has made a lot of headway …

Back To Basics: Excavating The Sex Discrimination Roots Of Campus Sexual Assault, Deborah Brake

Articles

This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and …

Fighting The Rape Culture Wars Through The Preponderance Of The Evidence Standard, Deborah Brake

Articles

In the heated controversy over the obligations Title IX places on colleges and universities to respond to sexual assault, no issue has been more contentious than the standard of proof used to make findings of responsibility in internal student misconduct processes. In 2011, the Office for Civil Rights (OCR) of the U.S. Department of Education released a “Dear Colleague” letter (DCL) clarifying the obligations imposed on institutions of higher education to use fair and equitable grievances procedures in resolving allegations of sexual assault. Among numerous other requirements, the DCL alerted colleges and universities that it expected them to use the …

The Trouble With 'Bureaucracy', Deborah L. Brake

Articles

Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for such conduct in sketchy campus procedures have trickled into the public dialogue, forming a counter-narrative in the increasingly polarized debate over what to do about sexual assault on college campuses. Into this frayed dialogue, Jeannie Suk and Jacob Gersen have contributed a provocative new article criticizing …

Lessons From The Gender Equality Movement: Using Title Ix To Foster Inclusive Masculinities In Men's Sport, Deborah L. Brake

Articles

This article was written for a symposium issue in Law & Inequality: A Journal of Theory and Practice on the topic of LGBT inclusion in sports. The symposium, which was held at the University of Minnesota Law School in November of 2015, was precipitated by the controversy that erupted when NFL player Chris Kluwe sued and settled with the Minnesota Vikings for allegedly firing him over his outspoken support for marriage equality. The article situates the Chris Kluwe controversy in the broader context of masculinity in men’s sports. At a time when support for LGBT rights has resulted in striking …

Discrimination Inward And Upward: Lessons On Law And Social Inequality From The Troubling Case Of Women Coaches, Deborah L. Brake

Articles

In the Title IX success story, women’s opportunities in coaching jobs have not kept pace with the striking gains made by female athletes. Women’s share of jobs coaching female athletes has declined substantially in the years since the law was enacted, moving from more than 90% to below 43% today. As a case study, the situation of women coaches contains important lessons about the ability of discrimination law to promote social equality. This article highlights one feature of bias against women coaches — gender bias by female athletes — as a counter-paradigm that presents a challenge to the dominant frame …

Caught Between A Rock And A Hard Place: The Title Ix Generation, Mathematics, And The State Of Feminist Quantitative Social Science Research, Jill R. Williams

Journal of Feminist Scholarship

In this essay I reflect on the fortieth anniversary of the Mink Equal Opportunity in Education Act of 1972 (Title IX), which prohibited discrimination based on sex in federally funded education programs in the United States and inspired educational programs that encourage girls to pursue math and science careers. I argue that despite the feminist underpinnings of Title IX, in recent years feminism has discouraged the advancement of women in math and science by excluding quantitative research from its publications, quantitative researchers from women's and gender studies programs, and quantitative training from its curriculum. I examine my own experience of …

Sport And Masculinity: The Promise And Limits Of Title Ix, Deborah Brake

Book Chapters

This paper uses the lens of masculinities theory to examine the connections between sport and masculinity and considers how law both reinforces and intervenes in sport’s production of masculinity. The paper urges moving beyond a "women vs. men" framework for examining gender equality in sport to include critical study of sport’s relationship to masculinities. The primary law examined in this chapter is Title IX of the Education Amendments in 1972, which is widely (and properly) credited with the explosive growth of women’s sports in the intervening decades. While Title IX has greatly expanded the range of culturally valued femininities for …

An Equal Rights Amendment To Make Women Human, Ann Bartow

Law Faculty Scholarship

[Excerpt] “I can state with some authority that two times fourteen is twenty-eight, flouting the stereotype that women are inept at mathematics and simultaneously framing my argument in favor of an Equal Rights Amendment (ERA). Though the Fourteenth Amendment' provides women with partial legal armament (a dull sword, a small shield), equal protection requires something twice as powerful in the form of a Twenty-Eighth Amendment that would expressly vest women with equal rights under the law. The Fourteenth Amendment has completed only half of the job.”

The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Deborah L. Brake, Verna L. Williams

Articles

This article examines how race and educational equity issues shape women's sports experiences, building upon the narrative of Darnellia Russell, a high school basketball player profiled in the documentary The Heart of the Game. Darnellia is a star player who, because of an unintended pregnancy, has to fight to play the game she loves.

This girl's story provides a unique and underutilized lens through which to examine gender and athletics, as well as evaluate the legal framework for gender equality in sport. In focusing on this narrative, we seek to give voice to black female athletes and to express their …

Perceiving Subtle Sexism: Mapping The Social-Psychological Forces And Legal Narratives That Obscure Gender Bias, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

In The Title Ix Race Toward Gender Equity, The Black Female Athlete Is Left To Finish Last: The Lack Of Access For The “Invisible Woman", Tonya M. Evans

Law Faculty Scholarship

Although each of us is defined by race and gender, those of us who are neither white nor male often experience invisibility as a result of our dual subordinate status.... Black women have been disproportionately located at the lower end of the economic hierarchy and, therefore, have been unable to afford private golf, swimming, or tennis lessons. Overt racial discrimination prevented black women from gaining access to the sports participated in by white women. To the extent that the main thrust of solutions to gender inequity and a lack of adherence to Title IX mandates has been the addition of …