Intersex Athletics, Roster Floors Addressed in Law Student Notes

The current issue of the Brooklyn Law Review contains two Title IX-themed articles written by students.

In Policing the Policing of Intersex Bodies, author Laura Zaccone lays out a regulatory approach to "preventing the gender inquisition that befell Caster Semenya from occurring in the educational context." She urges the Department of Education to

issue Title IX regulations--or, failing that, a policy interpretation--making a student's self-identified gender determinative of eligibility to compete in school athletics. If a student lives and identifies as a female, there should be no other eligibility criterion for participation on a female team. Under this policy, the perspective of the individual student is the deciding factor. But an individual's self-identified gender is not always readily discernable to others. Some basic guidelines, then, are needed to ensure that this policy is administered fairly.

Above all, students should not be subjected to gender-identity tests. Procedures seeking to establish gender identity are just as pernicious as those purporting to verify biological sex. The DOE should make clear that testing of this nature is likely to violate Title IX.
To determine a student's gender identity, there are a numbers of factors that school administrators can consider. Substantial weight should be accorded to the gender self-identified by the student at enrollment.

Administrators might also consider the gender marker on identification documents, such as passports, driver's licenses, or birth certificates. These records should not be regarded as conclusive, however, given the adverse implications for transgender students, who often face obstacles in modifying the gender designation on personal documents even after sex reassignment surgery.Whatever factors are used to show self-identified gender, the DOE should require that school officials apply them consistently across the board. A case-by-case approach risks that athletes appearing more “masculine” than others will be subjected to more vigorous scrutiny.

76 Brooklyn Law Review 385 (2010).

A second article, Leave It On the Field, student author Carolyn Davis criticizes the federal court's decision in Biediger v. Quinnipiac, which rejected the university's claim to satisfy the proportionality standard because the university had counted several athletic opportunities for women that were not meaningful in comparison to other varsity opportunities (specifically, those in competitive cheer, winter track for some athletes for whom it was an extension of the season for other running sports, and opportunities on teams with a roster inflated for Title IX purposes). Davis criticizes the court's analysis as "part of a worrisome trend" that courts are interfering with athletic department's spending decisions. In this spirit, she argues that the use of roster floors ought to be an acceptable practice, and that courts should not scrutinize the "subjective" question of whether those rosters offer meaningful participation opportunities. Interestingly, however, Davis's defense of the practice of expanding/inflating the size of women's teams by arguing that it is most acceptable when it is accompanied by commensurate increases in support for the team. Yet, by using an example the inflated roster of Quinnipiac's softball team, which did not receive commensurate additional support, Davis demonstrates that without judicial oversight, universities facing budget problems will solve them by very means she agrees are problematic.

76 Brooklyn Law Review 265 (2010).