This Article argues that sex/gender roles in sport have resulted almost entirely from stereotypes rather than from analytical thinking. This situation has created unfairness and discrimination that have been highlighted by the rising trend of gender fluidity. The Article makes a proposal to remedy this unfairness and discrimination.
The Article first traces sex/gender roles in sport before the passage in the United States of Title IX of the Education Amendments of 1972, which the courts have interpreted as applying to women in sport. As the participation of women in sport expanded in the twentieth century, pressure built to end the inferior treatment of women. With the passage of Title IX came the start of tremendous progress.
This Article further explores how, despite this progress, stereotypes have still retained influence in sport. The so-called Contact Sport Exemption (CSE) to Title IX, for example, exempted such major revenue-producing sports as football and men’s basketball from the requirements of Title IX. The Article maintains that the CSE makes little sense in an era of increasing gender fluidity. With regard to intersex or transgender athletes, the CSE offers little guidance on questions such as whether a person transitioning from male to female could play on a women’s field hockey team or whether a person transitioning from female to male could play on a football team.
The Article reviews the attempts of sporting organizations, such as the International Olympic Committee and the National Collegiate Athletic Association, to deal with intersex and transgender athletes. The Article argues that the attempted solutions fail because they are not scientifically based, they are invasive, and/or they do not take into account Title IX.
The Article then proposes a workable solution based on the following principles: (1) separate but equal teams by sex/gender are permissible; (2) where there is only one team in a sport, females may try out for traditionally-male teams like football and males may try out for traditionally-female teams like field hockey; and (3) the definition of “sex” is either the sex at birth or the sex with
which the individual identifies for all purposes (i.e., not just for sports).