NCAA Hypocrisy

  [this is cross-posted at After Atalanta]

{I will post something soon about the new rules on NIL; just trying to keep up/catch up on all the things}

The NCAA's new policy banning transwomen from competing in women's sports arrived (seemingly) minutes after the administration issued its executive order banning transwomen and girls from participating in school-sponsored sports teams. 

The NCAA did include verbiage though which is worth looking at. 

This is the synopsis at the top of the press release: Men's category open to all eligible student-athletes, women's category restricted to student-athletes assigned female at birth, schools directed to foster welcoming environments on all campuses.

But it is not accurate. 

The women's category--for competition purposes--is open to people students assigned female at birth who are not taking testosterone. What we see here is a different standard. Testosterone levels matter only for some people. Taking it knocks you out of the women's category but lowering natural testosterone is not enough to qualify someone for participation. So does testosterone matter or not, NCAA?? It is admitting there is no coherent logic or philosophy for participation--and certainly no science. 

Also of note is this statement: The policy permits student-athletes assigned male at birth to practice with women's teams and receive benefits such as medical care while practicing. 

This statement is not for the benefit of transwomen--this just means that basketball teams can keep using men as practice players. It is weird how some people who have gone through "male puberty" are allowed to compete with women without an outcry about them being hurt or dire warnings about how dangerous it is. 

Finally, someone assigned female at birth who is taking testosterone may practice. 

So is testosterone only dangerous in a competition setting? Does it get turned off during practice? 

Students still have protections...

 ...but we need to demand that they are ensured and applied.

I was reminded by Teen VOGUE (follow them on BlueSky!) that it has been a year since the death of 16-year old Nex Benedict, a trans, Choctaw student in Oklahoma. (note that Benedict was not a registered Choctaw but was claimed by Choctaws; also note Nex used he/him & they/them pronouns). 

As noted in the article, Oklahoma has one of the most virulent set of anti-trans laws in the country. Still, Nex's school had a duty to protect him (and the other students who had reported being bullied because of their gender identity and expression) because of Title IX. 

That HAS NOT CHANGED. I link to again (because the more places it can be found, the better) this chart from National Women's Law Center about what is still required of schools. (This summary is also good.) 

From NWLC:

The Title IX statute (passed in 1972) already protected—and still protects—students from anti-LGBTQI+ discrimination. Several federal appellate courts, including the Fourth, Seventh, and Ninth Circuits, have affirmed that sex discrimination under Title IX includes discrimination on the basis of sexual orientation, gender identity, or both.2 The Supreme Court also affirmed in Bostock v. Clayton County that discrimination based on sex includes discrimination based on sexual orientation and gender identity. Furthermore, the Department of Education has resolved a number of Title IX complaints before the 2024rules were issued, including under the 2020 sexual harassment rules, requiring schools to protect LGBTQI+ students from harassment and bullying, including anti-LGBTQI+ slurs and repeated misgendering. And, since at least 2011, the Department has recognized under both Democratic and Republican administrations that sex discrimination includes sex stereotyping.

 Yes, there is the possibility that Bostock's interpretation of sex discrimination will not hold. But it is still there. 

The Executive Orders are not laws and they are being challenged. 

Participate in the pushback!

Write a letter--better yet an open letter that folks can sign--to members of your administration, your Title IX coordinators and ask them questions about how they will protect LGBTQ+ students. Make demands. Be specific! Make them communicate their obligations to the whole community. Visibility is necessary right now and making it known to the powers-that-be that YOU know what is what is really important. 

What folks, including those I am working in coalition with (also: find people with whom to work that you trust and communicate well with whether that is an existing group like a rapid response network or a union or a newly created coalition) are focused on right now in many communities is the incursion of ICE in our schools. Open letters and demands are flowing. 

This can also work for Title IX and LGBTQ+ rights. When I come up with some good language that can be modified to your needs, I will happily share it here. Also, please reach out if any of this is happening already where you are. 

Not all the protections are gone. Make those that exist known and fight for them!

What's in store for Title IX in 2025 (and beyond), Part III: The transwomen ban in sports

 Over at After Atalanta I have started--and will continue--to write about the executive order banning transwomen from school-sponsored sports. But I wanted to post here a specific Title IX-related consequence of this executive order (and the capitulation of the NCAA via its new policy which is also an outright ban on transwomen in NCAA competitions).

The group and it supporters who say it is "saving" women's sports has endangered them. This is not news; scholars and activists have been saying this for a while. (If you are one of these folks and want me to link to your work here, email me at kristine.newhall@cortland.edu and I will add them to this post). 

A summary of what has already been said well: 

• Banning transwomen and girls is a human rights violation. There is no justification for denying a group of people access to an activity that is lauded (even if problematically) as highly beneficial to mental and physical health. 
• A ban on transwomen, in the name of safety, harms all women and girls by 
• subjecting them to greater scrutiny in terms of their adherence to norms of femininity; this scrutiny is greater for women of color who already are judged by the standards of white, western femininity. Also, this is already happening. Athletes are being called out and accused of being boys/men when they are "too." Too good, fast, strong, aggressive, masculine, spirited....It will not stop at verbal accusations. There will be schools and leagues that put physical exams into effect for anyone wanting to play women's sports. In addition to being an outrageous violation of privacy, and a form of violence, it will deter young girls from participating which will make a lot of anti-Title IXers very happy. Fewer women playing sports means more money for football.
• Relatedly--the confirmation of "biological sex" via physical exam will engender even more sexual abuse of girls and women. 
• Sexual abuse in women's sports is the other major area of critique of trans athlete bans. The focus on protecting women athletes and making sports safe for them is another way the rampant sexual abuse --not by trans women but by cis men--is both covered up and enabled. Johanna Mellis is one scholar activist who has written about this. 

What I am adding: The executive order will negatively affect Title IX compliance. 

One, it is not clear what the Department of Education is going to look like. Of course, any attempts to completely eradicate it will be met with legal challenges. The Office of Civil Rights is in charge of Title IX complaints. It is unclear whether the current administration views OCR as a DEI initiative and will attempt to dismantle that.

Two, whatever version emerges or remains simmering during this chaos will, I predict, be aimed at punitive investigations of schools that allow trans women athletes to compete (or have in the past because this administration is all about revenge) or use bathrooms or locker rooms or even have all-gender facilities. Already understaffed, there is no way this department will be exempt from the firings that other agencies have experienced.

So when your daughter complains about the lack of medical care she receives as a woman athlete compared to athletes on men's teams or the crappy fields she has to play on or why she isn't getting equitable NIL (because this IS coming) and no one from OCR shows up because they have been compelled to "investigate" an all-gender bathroom at North Atlantic College for the Arts remember this moment. 

I am drawn over and over again to the hole in the ship metaphor that I know Cornel West has used to describe a society whose foundation was built on racism and sexism and exploitation. The ship has a hole (so many holes) and those at the bottom of the ship feel the effects first, but eventually the whole ship goes down. 

The ship that is women's sports has been torpedoed by this executive order. The people who will feel its effects most acutely and quickly are those most marginalized already in women's sports: all trans people, intersex people, and cisgender women of color. But the waters are rising. All queer women should be fighting this. Not that long ago people suggested that lesbians were physically superior to heterosexual women and "science" was used to back this claim as well. Whatever comfort or safety queer women have attained in sports is also in jeopardy. Backers of these bans are not good with nuance. 

But eventually, white cis hetero women and all the others taking a victory lap after having "saved" women's sports, the waters will reach you too. 

You can tell NCAA leaders what you think of the ban via email:

• NCAA President, Charlie Baker - cbaker@ncaa.org
• NCAA Managing Director of Inclusion, Amy Wilson - awilson@ncaa.org
• NCAA Chair, Board of Governors, Linda Livingstone (President, Baylor University) - Office_of_President@baylor.edu

What reversion to 2020 means

This administration's Department of Education issued a memo last week stating that the 2020 guidelines are now back in effect. My institution sent an email to that effect recently as I suspect many others did. But the specifics of what the change meant were not provided (not surprising given how opaque the process remains nationwide). 

The Biden rules were only recently implemented so perhaps the old rules are not so foreign, but given that this administration called Biden's DOE take on the law "an egregious slight to women and girls" it is worth (re)examining what the DeVos era rules require. 

The 2020 rules were a more subtle version of countering ideologies that conservatives saw as part of a DEI agenda, including supposed discrimination against men during the adjudication processes college and universities were using to respond to accusation of sexual assault. 

So we are back to:

• the often times traumatizing mandate for live hearings in which the accused can question the accuser
• a narrower definition of sexual assault and harassment that required it be "so severe, pervasive, and objectively offensive" that it effectively denies a person equal educational access.
• I insert here my plug for the 2024 book On the Wrong Side: How Universities Protect Perpetrators and Betray Survivors of Sexual Violence by Nicole Bedera, which I am making my way through now. Bedera talks about the book, whose research occurred during the Trump admin part I but before finalization of the DeVos rules, here. (Spoiler: she doesn't think that any administration's rules went far enough.) A main theme is how many victims leave school after encountering barriers during the reporting process. 

• a narrower scope for what kind of cases schools can pursue in terms of location of alleged incidents (on campus or at school-sponsored events)
• reduced liability for schools who must show "deliberate indifference" to an accuser's report of sexual or domestic violence; deliberate indifference is difficult to prove

Biden's DOE rules notably expanded protections based on gender identity and are arguably the reason they were legally impeded and eventually overturned, which happened before the inauguration, even though the current DOE seems to be taking the credit. 

Now we have an even more difficult reporting process for sexual assault and harassment and fewer protections for all victims of gender-based* assault, discrimination, and harassment.  

So time for another reminder: women's issues are trans issues are race issues are poverty issues. This reversion to 2020 rules were certainly part of the effort to appeal to conservative values by vilifying trans people, the larger LGBTQ community and their allies and they will not protect women and girls, an action this version of the administration has no interest in. 

* not sex because I don't hear a lot of discourse about how that XY chromosome was dressed or the amount of alcohol the human with less than 5 nanomoles/L of testosterone had to drink

Finally a win for a Title IX

 ...and a sort of validation of my earlier prediction.

Last week's multi-billion settlement (still in need of final approval by the judge and being questioned by the outgoing Justice Department) in a class action lawsuit against the NCAA prompted OCR to issue a reminder about following Title IX in regard to the provision of equal opportunities as they relate to NIL. 

The settlement includes almost $3 billion to be distributed to over 400,000 current and former athletes, will replace athletic scholarship limits with roster size limits, and requires revenue sharing with athletes, i.e., athletes will be directly paid. Some of the initial issues that formed the case (a consolidation in 2020 of several cases regarding athlete compensation that began years earlier) had been settled when the NCAA capitulated regarding athletes' ability to earn money for their name, image, and likeness. 

In the wake of what appears to be "official" approval for athlete compensation of all sorts, OCR (somewhat belatedly imo) released the fact sheet reminding stakeholders how equality is assessed under Title IX. The fact sheet entitled "Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities" lays out the mandate for equity in this new era. 

Points that struck me:

• OCR has explicitly tied the requirement for equity in publicity to NIL opportunities. 
• "A school’s obligation to provide equivalent publicity based on sex continues to apply in the context of NIL. For example, if a school is not providing equivalent coverage for women’s teams and student-athletes on its website, in its social media postings, or in its publicity materials, these student-athletes may be less likely to attract and secure NIL opportunities. In addition, if a school is publicizing student-athletes for the purposes of obtaining NIL opportunities, OCR would examine whether the school is providing equivalent publicity for male and female student athletes (including by examining the quantity and quality of publications and other promotional devices that feature the men’s and women’s athletic teams)."
• Opportunities to access NIL must be equitably supported by the institution. If colleges offer athletes training in how to get NIL deals those must be offer to men and women athletes equally. Also, any administrative support for NIL by employees must be equitably provided. So if the football team has a full-time NIL admin then a full-time admin needs to be meeting the NIL needs of the equivalent number of women athletes. 
• NIL provided by a school to athletes IS financial assistance based on athletic participation. In other words, NIL must be distributed equitably similar to scholarships and grants. 
• NIL provided by a third party does not fall under the category of financial assistance, but schools are responsible if NIL that comes from boosters, collectives, etc. create disparate effects. Alas, OCR did not offer any examples or guidance about how to address these disparities. But this section does adhere to the longstanding interpretation that the popularity of men's sports historically that draws donations from alum and boosters for things like facilities, trips, turf fields, scoreboards cannot be accepted if the school does not have a way to create an equivalent (not the same necessarily) benefit/treatment for women. I predict that this is going to be the most contentious aspect of NIL's intersection with Title IX. 

This interpretation of how Title IX applies to NIL may not last. The new administration could choose to issue new/different guidance. Blogger emerita, Erin, spoke about this to the AP. But I don't think this is going to be a top priority. Though Inside Higher Ed did a quickie piece on this and quoted Ted Cruz saying this guidance was going to be scrapped pretty quickly, so who knows. Even if it is, athletes who are not getting the benefits of NIL are going to bring these issues to courts which will create precedents schools will have to follow.

What's in store for Title IX in 2025? Part II: Dropped protections for trans students, including athletes--POST INTERRUPTED

So just as I was about to post this one, I heard the news that a federal judge had blocked the new Title IX rules (which went into effect in August). We revert back to the previous rules and see what changes will be proposed--if any--by the new administration. 

In the spring, the National Women's Law Center held a virtual forum that I found helpful as some states had won injunctions against the new rules but others were proceeding. I am hoping the group will hold something similar soon as well provide guidance on how we should all be proceeding in efforts to guarantee protections to all students. 

For now I am going to post a slightly edited version of what I had before the ruling.

------------------------------------------

 It was pretty clear back in April when the Biden administration released its changes to Title IX that included protections based on gender identity but did not include specific protections for or guidance regarding trans athletes, that the latter were not coming. As part of the revision process, draft regulations regarding all of the above had been published and opened for public comment. I wrote about the draft guidance for trans athletes at that time. [TLDR version: I found them vague and problematic.]

In the end, it did not matter. There was no way those changes about trans athletes were going to be released ahead of the election; not when this issue has become quite the panty twister/straw dog argument (and various other metaphors which cannot even reflect how outsized an issue this has become while still doing significant harm). 

Even the changes guaranteeing protections for trans students, which went into effect in August have faced road blocks in the form of federal judges granting injunctions brought by state officials who did not want to follow the new rules. So some schools are following them and others are not.

What is to come in 2025? All these protections are going away, perhaps with a single signature. [UPDATE: this has happened based on the January 9 ruling of a federal judge in Tennessee.]

I have heard critiques of the Biden administration for failing to enact more fixed and certain protections for trans people. This is not untrue or unfair. Two things to remember. One, using Title IX to achieve some of those protections was never going to be a long-term solution. Every administration can change the guidelines and even this sympathetic administration was not going to be able to push through widespread protections because they do not have widespread support. This is one of the pitfalls of Title IX; it is subject to the social and political climate. (Yes, all laws and regulations are products of the culture of the moment; this one is easier to amend than others.)

Second, the loss of these protections are part of the larger attack on many minoritized peoples which this administration could not (or would not) stop or sometimes even address. 

Is there hope? In the immediate future...I don't think so. But see above re so many people who are and will be subject to increased violence (emotional, physical, financial) and suffering. Can effective leaders emerge and engage in a movement based on solidarity? There is a lot of myth-busting and compassion generation that needs to happen. I don't know what the tipping point is for people to realize that trans issues are women's issues are Black issues are poverty issues are immigrant issues, but unless it comes soon...

There may be pockets of hope in terms of where one lives and thus the protection offered by one's state or federal judicial district. I imagine numerous legal battles ahead (which were going to happen regardless of who won or which guidelines were enacted). There will be another legal showdown over the definitions of sex and gender and possibly conflict among institutions that offer protections working with(in) ones that do not (i.e., colleges with anti-discrimination protections and the NCAA). 

For now--and I hope to expand on this later--think about what you will do. What power do you have and how can you use it? 

What's in store for Title IX in 2025: Part I NIL

 I probably should have titled this series (whether it actually becomes a series...) what I think should happen in 2025 with Title IX because I am not a policy wonk and predictions are not my forte. 

Regardless, part I is about NIL and inspired by a National Review list (yes I am worried about how clicking on the link will affect my algorithm) of 5 wishes for higher ed in 2025. 

Number 5 on the list is keep Title IX out of "collegiate sports money." Like the rest of the list, the exact meaning of this wish is unclear, but I will interpret it here as "let it be ok that men athletes get more in NIL than women athletes." 

It could mean that Title IX should not apply to any aspect of collegiate sports budgeting, i.e. equitable distribution of money for recruiting, facilities, medical services, uniforms and equipment. And while I might have said in my head "that would be a losing battle," who the heck knows. One, most college athletics departments do some funky math and logistical gymnastics to justify their always larger men's athletics spending and 2) Sheila McMahon is slated to take over the Department of Education. 

Regardless, my wish for 2025 is that there is significant movement toward order and transparency in this NIL mess. (I am not opposed to NIL in theory, but its implementation has been nightmarish for so many stakeholders.) I hope that the plethora of lawsuits by athletes alleging lack of payment and unfulfilled promises will reveal more about the operations of NIL collectives, their connection to boosters, and their connection to athletics administrators. And perhaps the look behind the curtain will also reveal just how skewed the money flow is in favor of men's athletics. 

As a reminder, money from boosters is not an excuse for inequitable treatment. This has already been decided. A school cannot say "well the boosters paid for the spring break trip for the men's baseball team but we the institutions have no funds to provide a women's team a comparable experience/benefit." So it remains unclear to me how NIL has escaped the scrutiny. I mean I am not that obtuse; the rich are going rich anywhere they want to rich. But let's at least see this happening in real time with real effects this year. 

Remind me again who's hurting women's sports??

2025 intentions

 I do not make resolutions but I like to set some intentions and those generally seem to work out (a few years ago I decided--in the interest of maintaining balance and core strength--to not use stair railings except in dangerous situations). 

For 2025 I intend to blog more. In order to actually achieve this I have decided to pursue more micro-blogging (yes I know this was the original intent of Twitter/X but 1) I do not use that platform and 2) that was way too micro for someone like me who suffers from too many words syndrome). 

I often start posts and do not finish them or have ideas that never make it to the "page" because I am so stymied by getting every single detail down.

But no more! In the spirit of more writing will lead to better writing (which is something I need for the upcoming sabbatical), I will blog more. There will be no shortage of things to say, I am sure. 

Former Harvard coach alleges sex discrimination in federal lawsuit

  Over at my other blog, I have been writing about the "retirement" of women's ice hockey coach, Katey Stone in 2023 amid allegations of racism, body-shaming, and overall toxic culture. This is the piece I wrote specific to Stone's announcement that she has filed a federal sex discrimination lawsuit against Harvard University. 

--------------------------------------------------

Well The Boston Globe published the news (paywalled*) behind former women's ice hockey coach Katey Stone's press conference two hours before the conference The surprise factor was gone by the time I tracked down the clips. The two pieces of the press conference (Stone's lawyer's remarks and Stone's remarks) can be found at Hockey News. Some former players spoke as well but I have not seen those clips yet. 

There is plenty to say about this lawsuit and press conference. 

First, looking back at my predictions, I should have placed more emphasis on retribution than on moving forward with "apologies." Most of today was digging in to "truths." There were no apologies. There was some very interesting running around the allegations though. More on that below. 

It was very clear that Stone is irate that she was not allowed to speak back in 2023 when everything went down. I am not positive that she believes coming to her defense would have saved her job and reputation, but I think she believes that. She ended her remarks with "my voice will at last be heard."

Second, I am sure there is some merit to this discrimination lawsuit. The lawsuit alleges sex discrimination based on differential treatment including pay. Stone said in her remarks that the AD, Erin McDermott, told her privately that this (the Globe investigation that compelled Harvard to do an external investigation) would not be happening if she were a man. Maybe. But it is not as if men have not been fired for abusive behaviors. Maybe that statement is true at Harvard--which is all that Stone has to prove since she is not suing SPORT--just Harvard. 

It also alleges that she was subject to more stringent standards than men in the department. I assume that this is in regard to the allegations that she would punish players unevenly for infractions--including an athlete who was driving under the influence. Apparently men coaches are allowed that leeway. 

This gets to a larger issue that I have tried to tackle when writing and thinking about coaching behaviors. These standards for what is acceptable in coaching are just whack. Why do we continue to accept this behavior in coaches? 

Words like "respect," "dignity," "good character," and "integrity" were used at the press conference by Stone and her lawyer, Andrew Miltenberg. If you want to prove that you are those things and are capable of teaching those things, you need receipts. Maybe the women who were sitting behind her were the receipts. But I find nothing dignified about yelling at athletes in anger or ignoring their injuries or body shaming them (an unaddressed allegation). 

Third, Harvard has a lot of blame to bear. Differential treatment to coaches means athletes are certainly receiving differential treatment. But if anyone is letting any athlete who commits a crime (DUI) continue to be part of Harvard athletics then that's just a different level.

The pay differential is going to be a tough one though. Courts have allowed differential pay between men and women coaches because schools come up with rationales about money brought in from camps and endorsements and a bunch of other factors including market value. I would love it if this case changed some of those precedents.  But I think Stone will actually have better luck saying that Harvard would not have fired a man for the same (bad) behavior. 

This brings me to the speculative part of this post: what is Harvard going to do with that unreleased external investigation report? I assume it has some damning information about Stone that they would use in a trial to justify their actions. (Also big sticking point that she actually "retired" officially. Note to others who are experiencing job discrimination--make them fire you!) But I assume it also shows that some of these behaviors went unchecked for years. That puts Harvard in danger of a lawsuit from former players. My ultimate prediction is that there will be a no-fault settlement and that no one will be allowed to speak about it and the details of that report will remain buried. And Stone's desire that her voice will be heard will go unfulfilled.

Finally, I want to talk about a few ick moments from the press conference.

One--the throwing of women of color under the bus. Miltenberg's remarks called out Dr. Claudine Gay who led the internal investigation when she was dean of Arts and Sciences. He suggested that she has brought down the reputation of Harvard recently implying that her investigation could not be considered reliable. He also mentioned the phrase Stone used that triggered the internal investigation. He said that the phrase about Indians and chiefs "may offend some people notwithstanding that it's a common phrase." That is the non-apology I was expecting. He is dancing very carefully around accusations of wokeness. It is disappointing when proponents of Title IX fail to check their white privilege and downplay racism to bolster claims of sex discrimination. 

Stone did some dancing too: around the allegations that she ignored and/or exacerbated players' mental health concerns. After saying that the mental health crisis is real she talked about the difficulty as a coach trying to find a balance between pushing too hard and "affirming mediocrity" and that "cultural norms make it more difficult to set a high bar." She characterized her program as one of an "earn it" mentality not an "entitlement mentality." If someone can get Stone to talk without a script in front of her (I'm looking at you podcasters!!), I bet with very little prodding she would go off about "kids today" and their lack of resiliency and sense of entitlement. 

I am curious about one thing. Every other case of sex discrimination in which gay women in athletics have been fired/dismissed (e.g., Iowa, Minnesota-Duluth) also alleged sexual orientation discrimination in their lawsuits. Maybe there is just no evidence of that in this case, but it does not follow the strategy I have seen about throwing everything into a lawsuit to see what sticks. 

I may be done with this story for now. But who knows--something interesting could happen next week and I will back with more lukewarm takes. 

 

* The Wall Street Journal was actually first to this story. Theirs is also paywalled. 

Hope and concern in West Virginia ruling

 I attended a rally/vigil last week focused on LGBTQ+ visibility and one of the brilliant speakers spoke to the difficulty of maintaining/having hope among those who embody those identities, (and those who are allied with them). The idea that "surely things cannot get worse" she said, has been replaced with a resignation that when something worse happens, we know it will not be the last of the worst things or the worst of what is to come. 

The tragic death of teenager Nex Benedict, whom we remembered at that vigil, will not be the last ever, the last this year, nor the last this spring. Queer children are in such a vulnerable position all over the country. And those with additional minoritized identities, like Nex who was Indigenous, are extremely vulnerable when they do not have the privileges that comes with whiteness, or middle-class standing, or normative ability (physical and/or neurological). 

So I am wary to ascribe the word "hope" to the recent overturning, by a federal appeals court,  of West Virginia's law banning trans girls and women from school-sponsored sports. It is certainly good news amidst the bad (the longer list of states that continue to be allowed to engage in discrimination, the NAIA's recent banning of transwomen from intercollegiate sports at its member schools, and Ohio's impending ban). 

In addition to the almost certain appeal of the ruling is the fact that the child at the center of the case is someone who could be characterized as a near-ideal plaintiff. She is a young teen who has been public about her identity since the age of 8. She has a birth certificate that states she is female. She is on puberty blockers and estrogen. Being an athlete seems to be a key part of her personhood and she has been playing on girls' teams since her social transition. She is feminine, blond, and white. 

But my hope that this is a turning point, or at least a sign of better things to come, quickly dissipates when I admit to myself that if almost any single one of the factors above was different, this case could have had a different outcome. What if the plaintiff was not engaged in medical transition (remember some states have now banned that), what if she had only recently socially transitioned or never before played on a girls' team? What if she was a Black girl? (A look at the responses to former Connecticut high school track star Andraya Yearwood demonstrates how racism constructs beliefs about gender and femininity in ways that demonize and do violence to Black trans girls and women.) 

To be clear: I am very happy the decision went in the plaintiff's favor and that she will be able to continue to participate on the girls' track team. I hope it makes space for those who might not be the "ideal" because of how they present or how they are choosing to embody their identities. 

But, right now, that is about all the hope I can muster. 

Not saying "I do" to Biden's proposal

 With the spate of legislation aimed at denying trans people--including trans children--fundamental rights, it would seem like this month's announcement from the White House  about proposed regulations (under Title IX) to prevent schools from outright bans on trans youth participation in sports would be a good thing. 

The headlines might have inspired some hope* especially in weeks like this one where the House has passed a bill that bans transwomen from sports competitions by amending Title IX to state that sex can only be defined by sex assigned at birth (which, of course, will trigger a myriad of other bad things for cis and trans people and persons with Differences of Sexual Development). 

While that bill will not pass the Senate, other bills are passing state legislatures; seemingly with ease. But after reading the actual proposal and fact sheet (linked above), there is not much reason for celebration, however.  

One, we have to remember these are proposed changes to how the law is interpreted. We now enter a comment period where people and entities can, well, comment on the proposed rules. This is, I suppose, part of the democratic process (though how much so is questionable given that former Sec of Ed Betsy DeVos also made changes that from all that I could see were largely unpopular and those got pushed through anyway). 

But good golly, I would not want to be the one reading these! I imagine they will only be slightly more professional versions of internet crap from the likes of Save Women's Sports and the Alliance Defending Freedom. [Or maybe I am overestimating the professionalism of transphobic persons and entities. ]

Regardless, these changes are not going to be protective of trans people. The big takeaway is this: institutions to which Title IX applies will not be allowed to pass blanket policies that ban trans students from sports participation. Instead the Department of Education will "allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring farness in competition or preventing sports-related injury." I will come back to this and some of the other language. 

I am going to start with a problem I feel has been almost entirely overlooked in this and most other conversations about policies regarding trans participation in sports^: they do nothing to address privacy. Because so much of these regulations depend on how this flexibility will be interpreted and implemented --standards of fairness and advantage being highly subjective in the sport world--privacy has arguably become less of a concern, less of a right that trans people--including children can have if they want to play sports. If these regulations get passed the early "cases" (children should not be cases by the way) will be brutal. Adults will engage in horrible behavior and say brutally damaging things about children. (Just look at how Lia Thomas and other adult trans athletes have been treated.) 

I do not have faith that we who live in a white, western, heteropatriarchal society, of which binary sports are a result and an enforcer, will have the ability, the knowledge, the self-reflection, the ethical drive to determine what fair is.

This is not helped by the language in the Department of Education's fact sheet and proposed changes to the regulations. 

Starting with the above about educational objectives as related to fairness of competition and sports-related injury...One, fairness in competition, despite what many people believe about the rules of sports, is highly subjective. We, as a sport-obsessed culture, do not actually discuss and define fairness much beyond complaining about how referees call games or when the coach plays their own child. There is no complexity to the fairness discourse. Related to these regulations and their flexibility, I do not see how anything other than the usual boys are stronger than girls biological fairness discourse will be used by those wishing to erase/punish/condemn transgender children and young adults. 

The "safety" that that Biden administration has invoked reinforces the "fairness" but is also entirely hypocritical!!! If it was/should be an educational objective for sports to be safe for participants, there would be far fewer sports. This is not a gender issue. Men who play football are quite dangerous to one another's health. (Also states with equal opportunity laws require that women/girls be at least allowed to try out for football and we seem to have gotten over the whole safety thing here.) Women's gymnastics has a high rate of catastrophic injury. Safety does not seem to be anyone's educational objective when the sport is a money-maker. 

Overall the language in these regulations is vague. There are a lot of "expects" when it comes to what may be perceived as guidelines such as that the Department "expects...elementary school students would generally be able to participate on school sports teams consistent with their gender identity." This makes it unclear what happens when a school goes against this expectation and how these expectations will be enforced. 

Basically what they are saying is that they see there are differences based on age/grade. But there are SO MANY OTHER THINGS that make one student athlete different from one another within sex-assigned at birth categories: height, weight, previous access/exposure to sport including privatized sports, historic and current nutrition access, socioeconomic class, among others. No regulation has ever attempted to govern or control for these differences in single-sex sports. 

Another problematic aspect of the proposed regulations: they are conveying the idea that at "lesser" competitive levels, trans participation is fine but that more competitive levels or teams seemingly have the "flexibility" to exclude. So any trans person who wants to be "competitive" will be out of luck. There is no clarity about how competitive a team or school has to prove they are in order to ban trans people. 

There are more issues that are vague in regard to how these regulations will and will not work alongside existing stances by state interscholastic associations and the NCAA which has deferred (a kind way to phrase this) to sport governing bodies most of which do not have "educational objectives" at the core of their missions. 

It is sadly ironic that toward the end of the fact sheet it is stated that "preventing students from participating on a sports team consistent with their gender identity can stigmatize and isolate them." These regulations do almost nothing to impede or resolve that isolation or stigmatization. 

* I had linked to the NYT's article about the proposed changes but in protest of that outlet's coverage of the "controversy" over the care and well-being of trans youth, I removed it. Thus far it is a minimal attempt to divest myself of the Times, but I am trying to pay better attention going forward to citation politics. 

^ I am looking forward to reading this ahead-of-print article from the Sport Sociology Journal to see how this issue might be addressed. 

The story of the Las Vegas Invitational is not the story

 I spent part of last Sunday afternoon watching women's college basketball. Iowa took on UConn in the final of the Phil Knight Legacy tournament. I did not know the game was part of a tournament when I sat down to watch, and thus was confused by the black uniforms the usually blue-clad UConn Huskies were sporting. It was then explained to me: Phil Knight tournament, final game, Portland, Oregon. 

Iowa lost. Phil Knight came out to present the trophy to UConn at which point one of my viewing companions exclaimed "He's still alive?" If only the most egregious thing to happen in women's basketball last weekend was a still-alive person touting his legacy... 

That "honor" belonged to the Las Vegas Invitational, which has been the focus of considerable media attention since Indiana coach Teri Moren and others spoke out about the conditions in The Mirage's ballrooms. It was not the ballroom setting per se, according to reports, but rather the lack of bleachers, on-site medical staff, towels, and good lighting. In short, the conditions were not as promised when the tournament director proposed it to DI teams in March 2022. 

The attention has been on how bad this is for the women's game. A gender equity narrative has predominated the coverage. Yes. And...

I am a little surprised that there has not been more (self?) reflection on this one. 

WE MUST GROW THE WOMEN'S GAME! is the shout heard 'round social media. 

This is true. 

But...and I don't intend for this to be a blame the victim take...perhaps women's basketball should examine its partnerships and the philosophical foundations of those with whom they work/collaborate. There is nothing about the Vegas strip that makes me believe there is some kind of commitment to gender equity. Vegas is Vegas; it operates in its own self-interest. The money was made before those teams even showed up.  

But who chose to hold this tournament in Vegas and lured nine top teams to the Nevada desert? A company called Destination Basketball; an organization that puts together basketball tournaments (though it has ceased to exist online in the wake of last weekend's debacle). 

First, the NCAA, in theory, has a commitment to gender equity. As the championship tournament organizer, they rightly got called on to the carpet in 2021 when Sedona Prince's TikTok about the horrible conditions at the women's tournament went viral. Destination Basketball has no such mandate. 

Second, (I have totally buried the lede here) this organization is headed by Bryce McKey, a former college coach at Maryland and Xavier. He "resigned" from Maryland after allegations that he sexually assaulted two former Xavier players came to light. One of those cases was dismissed by a horrible judge who used almost every rape myth that exists to justify acquitting McKey. The other case was never brought to court. In addition to Destination Basketball, McKey coaches girls AAU basketball in Ohio. 

THIS IS THE STORY. (Kudos to Deadspin for being one of the only media outlets to dig deeper.) The lousy basketball tournament organizer is actually a sexual predator and is currently coaching girls sports. 

This is who those teams chose to work with. This is who they trusted to grow the game. Someone knew. Someone had to know this guy's history. The world of women's college basketball is not that big. And sadly it too has decided to engage in "pass the predator." 

Equity in women's sports is not just about equal coverage or equal pay. It is about safety--including from sexual predators. Mere weeks ago we learned about the rampant sexual abuse by coaches in elite women's soccer. The list of organizations that have covered up sexual abuse by coaches is too long. There is justified outrage when a new case comes to light. 

When are people going to start taking responsibility? How many athletes are being sacrificed for "growth"? Is that growth about anything more than money? 

I realize that the vision leaders of the AIAW (and its predecessor organizations) had for women's intercollegiate sports is probably impossible to achieve in the current structure of college sports. But the abandonment of any kind of moral compass is revolting and athlete-centric philosophy. Women's sports do not hold the moral high ground. This is clear when they choose to associate with people who clearly do not care about women athletes. 

What happened to those athletes in Vegas was unfortunate. I would encourage them to ask their coaches and their athletic directors why they chose to trust (and monetarily compensate) Bryce McKey to put together an event that was supposed to showcase their talents. 

And someone in Ohio AAU should be asking a lot more about McKey's past. 

Winning and failing at the same time

 A community college in Oregon must pay a former student over a million dollars after a jury decided the school was in breach of contract. 

The student who brought the lawsuit was a nursing major who had previously done sex work in the adult film industry. Some of her instructors found out and felt that her past profession meant she could not possibly be a good nurse. She experienced disparate treatment, including lowering of her grades after the fact. 

She brought two claims: breach of contract because the school did not provide her the education she paid for and a Title IX discrimination claim. They dismissed the latter. 

I found this fairly surprising. The stereotype of female sex workers clearly was a factor in how the instructions treated her. The idea that a woman cannot be a professional sex worker and a professional in a "reputable" profession like nursing is based on beliefs about women and sex. One instructor said to her: "It takes a classy woman to be a nurse, and unclassy women shouldn't be nurses." 

I find the plaintiff's response to the situation one also indicates the presence of sex-based discrimination much more so than breach of contract: "there are no words to say how much gratitude I have for the jury and their decision, but I'll never get over how much it took just to get a little bit of accountability." 

The school clearly did not meet its obligations because members of the institution were engaging in discrimination. They were gatekeeping based on ideas about proper womanhood as embodied by a female nurse. The plaintiff, after she disclosed her past work to a fellow student (who seems to have not kept a secret), found herself being penalized by instructors in ways her peers were not. Some instructors told her it was part of their academic freedom to lower her grade. She was dismissed from the nursing program in the summer of 2018 after one of her passing grades was changed to an F one month after semester's end. 

Additionally, the plaintiff went to the Title IX office and they never registered or investigated her complaint. 

I understand why there will not be a pressing of the issue regarding the dismissal of the Title IX complaint. The jury award was large, the student has moved on and is in law school now and hope to continue to advocate for sex workers and former sex workers. 

Reading the rest of the article though about other sex workers in academia and their treatment demonstrates that this form of discrimination has been deemed acceptable, is rarely challenged, and is based on norms of propriety that are gender-based. 

This is not going away. Sex work is easier to engage in because of the many forms that exist; more people are moving in and out of it; it can be lucrative; and college is expensive. Campuses--especially Title IX offices--need to be prepared for students who engage in sex work and how to protect them from backlash and other forms of violence and aggression. 

Pass the professor is a problem

 I have written previously about the practice of passing from one school to another athletes who have been accused of or found responsible for sexual violence. That is bad, and I am sure still happens, but at least some schools and athletic conferences have taken notice and created policies about not accepting these athletes. Does this actually happen? I don't know. I hope someone starts collecting some data/investigating. <-- virtual prodding of my sport soc colleagues 

Passing bad coaches around is also a problem though even less is known about how often this happens.  I have a forthcoming post about a  predatory University of Toledo coach who was passed to another team where he continued to engage in abuse of his players. One issue with determining frequency of this action is that coaches are employees and so this becomes a personnel issue and subject to a high level of scrutiny. The same is true of professors. 

Today's post is about how professors who commit Title IX violations move from institution to institution. It is inspired by a VICE piece from fall 2021 which I only recently came across but also because the issue has arisen in my professional life, and I could not get a clear answer on how to prevent the practice. 

It appears there is not one. 

The issue of sexual assault and harassment of undergraduate and graduate students has a long history. There is literally a book from the 80s called The Lecherous Professor (I found an old copy--first edition-- at a dusty used bookstore in Northampton, MA but have yet to dig into it. I am sure when I get to it I will be being deeply demoralized by how little has changed). 

In 1977, an undergraduate sued Yale University arguing that a professor's sexual harassment of students was a form of sex discrimination and that the institution was responsible for both attempting to mitigate this harassment and having a mechanism in place for addressing it. (This case is discussed by the amazing Dr. Libby Sharrow in the ESPN 4-part series 37 Words about the history of Title IX.) 

Though the plaintiffs did not win the case on its legal merits (Yale did institute a system for reporting sexual harassment, though), it set off a discussion of whether sexual harassment is a form of sex discrimination. 

Today we recognize it as such and so when it occurs in an educational institution, Title IX applies. But as long as this history of professors harassing and assaulting students is and as devastating the results, there does not seem to be a clear way to prevent it despite the legal recognition as discrimination. 

I dug around when a colleague was in the midst of a job search for a high-ranking position at a school well-regarded in their field.  One of the other candidates was a professor known to have been investigated multiple times for Title IX violations. This person made it to the on-campus interview stage and was favored by some who had decision-making power. Again, this person's history with Title IX complaints is well-known. But it could not be officially considered or brought up because Title IX complaints are a personnel issue and, as most personnel issues, nothing could be revealed about them; not the circumstances nor the findings of the investigations.  

This was the case for biology professor, Daniel Howard, at Augustana University who had a sexual and romantic relationship with one of his students/advisees (there were rumors of additional relationships). An investigation began after an anonymous report. He subsequently convinced the student, by her own account, to transfer schools to evade investigators while he followed his wife to the University of New Hampshire where he also got a position in the biology department. Even after the student victim spoke with the TIX coordinator at Augustana after realizing what had really happened to her AND contacting the TIX office at UNH, she got nowhere. Augustana said the case had been resolved, but that they could not reveal the outcome. I found this strange given that she was the victim and victims learn of the outcomes. But perhaps they thought the whole thing was moot given that both she and Howard had already left Augustana. 

Everything on the UNH end seems very sketchy (<--not a legal term) including the statement to VICE that the person who took the calls from multiple people about Dr. Howard no longer is with the office. There was no information about what Howard's new school did or did not know or what they did once they did know. When the story gained media attention Howard's name disappeared from the biology department's website and it appears that both he and his wife have left UNH. My cursory googling did not reveal his current institution. The VICE article (again a year old) reported that the student who has remained in the field still sees him and his wife and academic meetings. 

Having served on search committees, I know that HR does the background checks and they will rule out people and not reveal why. The candidate disappears from the queue (depending on what platform is being used). But Title IX complaints don't show up in background checks because they are not criminal offenses. Recommenders could possibly mention it in their letters but even if HR deemed it acceptable to consider that information (a big question) would a letter writer even do that? 

There are so many rules around search committees (which I understand) and about personnel information (same). But there needs to be some kind of balance between information that can maintain the safety of an institutional community and privacy. Title IX processes are so uneven across schools, how would a future employer even assess a finding of responsibility or of no responsibility? 

In short, there is a gap--a very large gap--in Title IX enforcement when employees with histories of violations cannot be identified and thus are passed around higher education. OCR/Department of Education needs to issue guidance on this.