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??