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Homophobia Rampant in
Women's Sports
Recruiters tell athletes that a
program is the “gay” one, or “it has lots of gays in it.”
A federal commission was
established to determine the impact of Title IX, the legislation
passed to make athletic opportunities equal for men and women in
federally funded schools. The legislation turned 30 this year.
Outsports is reprinting testimony from two people who focus on the law
and its impact on gays and lesbians.
Related:
Why Title IX is harmful to some young gay men.
Remarks made by
Robert DeKoven to the Title IX
commission in San Diego on Nov. 20. DeKoven is a law professor at the
California Western School of Law.
My name is Robert DeKoven and I’m a law
professor at the California Western School of Law and specialize in
legal issues concerning education (both K-12 and postsecondary). I
have been a member of the California Bar since 1984 and have litigated
cases involving gender discrimination, both under Title IX and
California non-discrimination laws. I write a syndicated column for
U-Wire, which distributes my column to 500 student papers. As an
undergraduate at San Diego State University, and as the student body
president, I helped pursue a complaint with the DOE on behalf of
female student athletes, pointing out the significant inequities in
funding for women’s athletics.
My testimony centers on two matters that I don’t think others would be
discussing. Specifically, I wanted to make the Commission aware of two
major concerns that prevent both female and male athletes from fully
participating and enjoying the benefits of competitive sport: 1)
gender stereotyping & homophobia in high school and college athletics;
and 2) precluding females from participating in boys’ contact sports.
Gender Stereotyping & Homophobia in High School and College
Athletics
While there are many issues that still plague women in sport, a major
issue that continues to abound is the presence of homophobia in
women’s sports. As pointed out as recently as last week in The
Chronicle of Higher Education, women athletes, lesbian and straight,
are victims of widespread homophobia both on and off the field.
In recruiting female athletes, the use of “negative recruiting” is a
practice that persists. Recruiters from various programs openly
discourage recruits from attending a competitive school because “it’s
full of lesbians,” or “the coach is a lesbian.” Both the NCAA and the
OCR should investigate and pursue charges against programs that engage
in such recruiting tactics.
Further, on the field, female athletes report opponents on other teams
(and fans in the stands) referring to them as “dykes” and other
derogatory terms for lesbians.
Male athletes, both gay and straight, report negative recruiting, as
well. Whether real, imagined, or maliciously designed, recruiters also
tell male athletes that a program is the “gay” one, or “it has lots of
gays in it.” Once on a team, students who are gay or bisexual or
questioning indicate that “coming out” would expose them to physical
and emotional abuse.
While the focus of my testimony is on the college athletics, there’s
no question that homophobia in K-12 athletics is pervasive. Students
and coaches reveal that coaches, both teachers and volunteers, quite
frequently use derogatory terms for gays and lesbians in order to
motivate or scorn players (“You throw like a faggot”).
Regardless of a student’s real or “perceived” sexual orientation,
Title IX does not sanction negative recruiting, hostile environments,
or harassment. (See “Revised Sexual Harassment Guidance: Harassment of
Students by School Employees, Other Students, or Third Parties,”
Office for Civil Rights, Department of Education, November 2, 2000, 65
Federal Register 66092.)
Specifically, the 2000 Guidance advises
that “all students, regardless of their sexual orientation are
protected from sexual harassment under Title IX.” There is no question
today that federal law, either through the Equal Protection Clause or
Title IX, protects students from all forms of bias based upon real or
perceived sexual orientation. This is so regardless of whether the
acts taken against the student result from pure sexual orientation
bias or because the victim fails to conform to a gender stereotype.
See e.g., Nobozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) and Rene v.
MGM Grand Hotel, 305 F.3d 1061 (9th Cir. 2002).
The Commission should recommend that the Secretary of Education and
the OCR should enforce the statute in accord with established legal
precedent and conduct a study of homophobia in both male and female
sports, (K-12 through postsecondary, its impact in denying opportunity
for athletic participation, and what reasonable measures all
institutions receiving federal support should undertake to combat
prejudice based upon real or perceived sexual orientation.
Precluding Female Participation in Boys’ Contact Sports
Over the years, hundreds of young women in high school, and in
college, have attempted to participate in contact sports, such as
football, wrestling, and boxing. Because their schools did not have
teams for girls, the women were denied an opportunity to participate
fully in athletics in their schools.
As the Commission is probably aware, Federal Regulations issued by the
Department of Education discourage schools from allowing females the
chance to participate in boys’ contact sports. Ordinarily, females
would have a chance to “try out” for a boys’ team if a similar team
was not offered for females. Examples in the past have included sports
like cross-country skiing and tennis. However, the Regulations
specifically exclude “contact sports,” such as boxing, wrestling,
rugby, ice hockey, football, basketball and “other sports the purpose
or major activity of which involves bodily conduct.” 34 C.F.R. §
106.41 (a)-(b) and 45 C.F.R. § 86.41(a)-(b) (same).
The position of the Department precludes many qualified females the
opportunity to participate in athletics. Based upon state
nondiscrimination laws, it is true that many schools do allow females
to try out and participate on boys’ contact sports teams. This is the
case under California law, as the California Education Code prohibits
barring qualified females from trying out for boys’ contact sports.
Females who do make boys’ contact sports teams -- and there are
hundreds throughout the country -- perform brilliantly and serve as
role models for both female and male athletes.
Today, though, female athletes in states that do not require full
equality in sport, may suffer from a ruling from the Fourth Circuit
Court of Appeals. In 1999, the court ruled that, even though Title IX
did not require Duke University to allow a female to “try out” for the
men’s football team, once it allowed her on the team, the school could
not discriminate against her. Mercer v. Duke University, 190 F.3d 643
(4th Cir. 1999). As the media reported, the case resulted in a jury
award in excess of $3 million. The court reversed the punitive damage
award on November 15, 2002. Mercer v. Duke University, 2002 WL
31528244 (4th Cir. 2002) (unpublished decision).
While a victory in one sense for women seeking to participate in
contact sports, the case actually works now as a disincentive for
schools to allow female athletes to partake in boys’ contact sports.
Schools, looking to avoid any litigation, can simply deny females the
chance to play on a boys’ contact sports team. Otherwise qualified
female athletes have no recourse against schools under Title IX.
The Commission should recommend that the Department rescind the
“contact sports” exception to Title IX and allow females a chance to
fully to participate in contact sports.
Conclusion
My testimony today deals with two issues that I don’t think many
others would be addressing in their testimony. Nevertheless, based
upon my experience and research, these are two matters that harm both
male and female athletes in fully participating in sports.
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