Bad investigations

 The more I learn about the ins and outs of Title IX (and Title VI) investigations, the more pessimistic I become about the ability of these statutes to remedy disparate and discriminatory treatment employees (in educational institutions) face. 

I am speaking only of higher ed here (though I do not imagine it is better in K-12) where the list of employees I know, or complaints I hear about, just keeps growing. As a reminder, if an institution has a large number of complaints, there is, as they say, "something in the water." In other words, there is a culture in a department, a division/college, or the institution as a whole, in which discrimination is allowed to continue. 

Hostile environments seem to be flourishing which means the people in charge are not doing their jobs. The remedy to this is supposed to be the complaint process. But the investigations process just seems so fraught. Title IX offices, where it is possible that maybe those in that office are more equity-minded and committed to creating better environments and stymying discrimination, are not the ones doing a lot of crucial investigations, ie., the ones brought by employees. Those go to Human Resources who sometimes do the investigations in house, but will also contract them out to businesses that specialize in this work. (I am curious about the data on this but imagine it is hard to come by. it seems like maybe it is better this way, but who knows. Ultimately, HR makes a decision from whatever report emerges from the outside investigation so...)

As I tell the students in my classes when we talk about ethical behavior in the workplace, you should definitely report unethical--including discriminatory--behavior you experience or witness to HR (because documentation is important). But always remember HR is on the side of the institution. They are protecting the institution. So when investigations or reports from investigations get turned over to them, that is the approach they take. 

What has inspired this little soapbox post? This story of a graduate assistant coach suing her institution which failed in its duty to effectively investigate her Title IX claim. Graduate students have so little power and occupy line-blurring positions as employees and students. (I am just beginning some research on graduate athletic trainers and it is not a good situation for them, especially for women.) 

In this situation, the graduate student, a woman, was serving as an assistant coach for the football team at Ohio Dominican University. She alleges that she was physically attacked by a member of the team who made forceful physical contact with her (causing bruising on her neck which she documented) and grabbed her bag to search the contents. The event was witnessed by another graduate student. She reported it to the football coach and to the Title IX office which assigned the investigation to...the coach; the man who is the supervisor of the complainant and the educator of the student being accused. Huge conflicts of interest there PLUS that fact that (as far as I can tell) he has no investigation experience or training. 

Things went as expected. The coach did not think, based on his own personal definition of assault as resulting in blood or severe bruising, the attack rose to the level of, well an attack. Title IX office agreed it did not meet the criteria of a Title IX violation and turned it over to student conduct. Coach equated it to a sister/brother scuffle and asked the graduate assistant what SHE could have done differently in the situation. She was retaliated against by the school and coaching staff in particular. Her mother filed a retaliation claim on her behalf and then the coach called and said the grad student no longer had a job. 

So the grad assistant sued. 

My highbrow, academic take: schools are dumb. Too broad? This school's employees acted unwisely and illegally! (Like so many other institutions.) This woman likely just wanted the situation addressed; the player punished, maybe a no-contact order. She did not money as compensation. She wanted to keep her job and feel safe--like everyone does; like what all of us who are employees deserve and are guaranteed under various laws--including Title IX. 

And because this now a lawsuit, other issues are being raised,* like her inequitable compensation. And if there is any justice, the grad student will get heaps of money. Though, it will likely be in the form of a settlement in which the university does not admit guilt. Will it compensate for the treatment she received from the university? The damage this coach will do to her future employment chances? Probably not. And that brings me back to....

Institutions need to do a better job at eliminating hostile environments. Get rid of employees who perpetuate these environments. As a unionist who has seen so many bogus claims (often against the least powerful employees) know that I do not make that statement lightly. At my institution that coach would be a union member, but so would the grad student. They would both deserve and get due process and representation (yay unions!)

 But honestly, the worst problems exist higher up among the people who ignore or write off or spin complaints against management employees (i.e., their colleagues). Administrators who have power can use it in retaliatory ways; or they simply ignore problems. This is how hostile environments are created. These are the environments in which bad things happen to those who are the most vulnerable. 

* Dear institutions, 

When you do not address the bad behavior happening on your campuses and those issues get elevated to higher and more official levels, MORE of your bad behavior comes to light. 

The SCOTUS Ruling on Trans Girls/Women in Sports

 [cross posted on After Atalanta]

 Though the Supreme Court ruling allowing states to ban trans girls and women from school-sponsored sports was not surprising, it is disappointing. We can know something horrible and frightening and violent is coming and still be sad and angry and despondent when it arrives. (Remember those months between the 2024 election and the inauguration??)

As many have said in the lead up to this case and the intervening months since the arguments and now that the decision has been released, it is children who will suffer the most from this decision. I wonder if starkness of this discrimination is greater now that the ruling has been issued? Will anyone pause and say: wait, we allow every other kid to play sports regardless of ability and differences* in biology, but not these kids because we hold certain (unfounded) beliefs about what they can do? The complete obfuscation of the range of human abilities that are based on SO MANY factors that are impossible to disaggregate by the court is astounding. 

Many, many other people and organizations re writing about this so to keep it short, I end with two quick reminders:

1. This WILL affect all girls and so by that logic (as the lower courts pointed out) it does discriminate on the basis of sex because only girls will be subject to verification. But what that verification looks like is unknown and I assume will differ across states. But it will be invasive and a form of violence. The government sanctioned surveillance of women's and girls' bodies continues rather shamelessly.

2. This is the latest legal ruling that serves the longer conservative plan to eradicate trans people. By denying rights and legal status to trans people, by enshrining legal discrimination, it is clear that their goal is to take away personhood. 

Right now this ruling, because it included reference to Title IX, only applies to schools receiving federal funding. While, of course, school sports should be inclusive, in places which uphold or create bans on trans girls, pro-inclusion folks can make other options available--for free. It does not make the ruling--and the ideology behind it--ok, but creativity and action in the face of oppression can be empowering; it can create community; it can create change. 

* I know inclusive and adaptive sports vary in availability and successful implementation, but there is a law that says that people with disabilities must be accommodated. This is a great time for me to heartily (re?)recommend Crip Camp (available on Netflix) for a great history of the disability rights movement in the United States as well as how it takes just a smidge of creativity and an inclusive mindset to enact inclusion. 

Oh, Quinnipiac

 It both seems like yesterday and forever ago* that Quinnipiac University became the center of a quite consequential Title IX case. In 2010 the university cut its women's volleyball team and, to remain in compliance with Title IX (the opportunities part not the rest of the laundry list) turn cheerleading into an intercollegiate varsity sport. We blogged extensively about it at the time and even went to one day of the trial! (Use the Quinnipiac tag for a look back.) More recently(ish) both Erin and I talked to Reo Eveleth for the podcast Sports Explain the World for their episode Cheering For Themselves about the case and the rise of cheerleading (and its manifestations STUNT and acrobatics and tumbling). Sadly we did not make the final cut but we were credited for the information we shared, which is appreciated.  

There were other issues raised in that case including roster management techniques (i.e., inflating roster number for compliance purposes). Ultimately the school was not allowed to eliminate the volleyball team or elevate cheerleading--in its then form--to varsity status for the purpose of Title IX. They did agree to put more resources into their women's sports which has certainly paid off (seemingly given that I have not seen the budget 😉) for the women's ice hockey team who has become a perennial contender for titles. 

As a reminder, a school can choose which teams to sponsor. The issue with 2010 Quinnipiac was that it wanted to trade out a recognized sport for an activity that was not considered a sport. 

The Quinnipiac of 2026 has announced that it is moving varsity women's rugby (added in...2011) to club status next year and creating an indoor/outdoor men's distance track program within its current offerings for track. The rugby team has started a Title IX lawsuit that includes a claim of retaliation because of the coach's complaints about inequities and of course, the actual inequities. It will be interesting to see how this proceeds. QU can cut any women's team it wants as long as it remains in compliance with proportionality and no one seems to be contesting that (that I have seen in the reporting; I have also not run the numbers which in itself would be complicated because it is unclear how many spots are being offered to men's track). 

In short, it seems like they have to prove that the status change was retaliation. That is a high bar based on what we have seen over the many years of retaliation claims. They might have great evidence--we don't know yet. A recent settlement that the school made with the women's lacrosse coach, who also claimed retaliation, might have given the team confidence that they could succeed. But even if they do, I am unsure whether this would result in the team being reinstated (versus receiving compensation or some other remedy). 

Of note is that the lawsuit names, among others, the current (newish) president of the university, Dr. Marie Hardin. I did not know that Dr. Hardin had taken an administrative turn (years ago apparently as a dean at Penn State). The last time I spoke with her was for her study on sports blogs. She is a sports communications scholar who has done a lot of work on women's sports and the role of gender in sports media coverage. It must be a little awkward for her to be on the other side of a Title IX lawsuit in her current position. Also, women's rugby is hot right now. Not a great look to decrease institutional support for it. No comment from President Hardin or the university because it is pending legislation. 

I do not predict this case will be as big as the cheerleading case, but I am curious to see what is coming.

* kind of like my blogging history. Le sigh. I am trying to do better. I have a lot of draft posts. I am posting slightly more often (i.e. more than once a year) on After Atalanta. 

Department of Energy is making Title IX rules?

 In one of the more curious things I have seen in regard to Title IX rule-making, the Department of Energy is attempting to issue a change to Title IX's rule about non-contact sports. 

That is not a typo--Department of ENERGY not EDUCATION. 

This attempt at a direct final rule--a process that is reserved for non-controversial rule changes, i.e., ones that receive no negative or opposing public comments--is sketchy AF. 

The change, set to go into effect July 15, would remove the rule that requires thar when there is not a team for both men and women and the sport is non-contact, that a student must be allowed to try out--just try out, this does not guarantee a roster spot--for the team that does not align with their sex. So if there is no women's golf team but there is a men's golf team, women must be allowed to try for a spot on that team. Again--this does not apply to any contact sports. 

[However, state equal rights laws have allowed women to try out and compete for spots on men's contact sports teams (such as football and wrestling); and vice versa--men have been allowed to compete on women's field hockey teams.]

This rule change--which is indeed controversial and has many public comments opposing it--is said to be the result of the administration's anti-trans agenda and the declaration that there are only two sexes. But even if this were true, the current policy has never attempted to redefine sex (which seems to be what everyone is so deeply afraid of). It relies heavily on a binary understanding of sex. 

So while I do not understand how this advances the anti-trans agenda, I do see how it reduces opportunities for girls (as well as boys). How many is unknown because it would seemingly (based on the reporting I have seen) only apply to schools receiving money from the Department of Energy since they are agency issuing the rule.

Media coverage has said that because the Dept of Energy does fund some schools, it is thus an enforcer of Title IX. This is...an overstatement and a confusing one at that. I have never seen this agency or any of the other federal agencies that fund  schools, "enforce" Title IX. That has always been the purview of the Department of Education. Title IX complaints, for example, go the the Office of Civil Rights which is under Dept of Ed. Investigations are done by those staffers. ANY federal funding (for financial aid, for school lunches, for research grants--when those still existed) means a school must comply with all aspects of Title IX--including the rules specific to athletics. 

But here we have this other DOE attempting to make a direct final rule about Title IX. 

It is simply (in its convoluted way) another attempt to deprive girls and women of meaningful opportunities. This administration ahs already said it does not see NIL and revenue-sharing as an equity issue under Title IX. (The forthcoming lawsuits beg to differ.) The anti-trans athlete policies and rhetoric are covers--sadly they are effective ones--for the administration's misogyny which IS negatively affecting women athletes. 

Even if it prevents very few women from trying out--again just trying out--for men's teams, the symbolism, the discourse, and the malicious intent all have much wider effects. 

Why trans athletes?

 [cross-posted on After Atalanta]

In a continuation of my last post in which I crib from GLAD lawyer Jennifer Levi's thoughtful social media posts, I offer here an explanation of why and how trans athletes became the target of the right.

First, I keep seeing left of center posts/headlines/discourse that highlight how few trans girls/women are competing in sports. I don't love this framing. The underlying premise of inclusion and access does not have a tipping point. 

Perhaps what it is meant to show is how the right is weaponizing this issue. This is both reasonable and true but not really very profound in its assessment. Look at some of the groups and people doing the work of banning trans athletes and you will also see agendas which are racist, and anti-Semitic, and Islamophobic, and anti-LGB as well. 

If I have not already recommended Judith Butler's Who's Afraid of Gender? (though I am pretty sure I have), go read it. Some of what Butler says is what Levi echoed in a recent posting contemplating the hatred and violence and targeting of trans people. But Levi touched on something else too: women's own fear of violence and structural inequity. 

Excerpt:

"Male violence is not a theoretical concern, but a documented fact that shapes society. The statistics are unambiguous. Women navigate the world with constant awareness of this threat, holding keys between fingers when walking at night, constantly assessing their surroundings for potential danger, and being taught from an early age situations to avoid. [...] Alongside this violence exists the stubborn persistence of sexism. Despite decades of legal reforms, wage gaps persist, women remain underrepresented in leadership positions, continue to shoulder disproportionate burdens of unpaid labor, and remain victims of male violence at alarming rates. Yet, even with all that, society struggles to maintain focus on these realities and legislatures have stalled out on finding or even trying to find solutions.

For women, there's something deeply humiliating about acknowledging how entrenched these barriers remain despite advances in formal legal equality. For men, acknowledging sexism often triggers defensiveness. And for society as a whole, addressing systemic sexism requires sustained, unglamorous policy work that rarely generates the emotional engagement that drives political movements."

Levi then argues that trans women, who are referred to as men, become the repository for all these individual feeling and systemic failures.

When I read that, I was struck by how perfectly it aligns with the anti-trans athletes movement. The athletes are described as being men, and the movement describes itself as saving women's sports, and protecting women. I will add that I see Levi's framing as also explaining the overwhelming whiteness of that movement, though she does not explicitly touch on race.

First, so many of the anti-trans athletes folks (in the US) cite Title IX repeatedly in their materials. Title IX is for women--as they define that category--they say. There would be no women's sports without it (not true and super ahistorical). Trans women in sports is the proverbial step backward for them.

What they don't say is that the equity Title IX requires has never been achieved. Women's sports are not even close to achieving equal media coverage or pay or respect. That is a hard pill to swallow.

Celebrations abound during March Madness or Title IX anniversaries or every four years for the Olympics and/or FIFA World Cup but try sitting in a meeting with an athletic director and showing him--with actual facts--that his program is not in compliance or convincing an investor to back a women's soccer team or a company to advertise during the Women's College World Series. Has anyone even tried to have a conversation with ESPN (who loves to tout its support of women's sports) that the ongoing platform they provide for Stephen A. Smith or their firing of Jemele Hill is hypocritical and misogynist? The systems that are preventing equality are fully on display.

But rather than working to dismantle and interrupt these structures, these so-called women's sports advocates point to a trans woman, call her a man, and say "this is the problem." That is their MO. It is their only play. And it disguises the real problems in women's sports; the ones that exist because the systems are made by and for men.

Why is the anti-trans movement in sports (and elsewhere) so white? Because the promise of equality and safety has never been made to Black women and other women of color. In the last post I noted it was because Black women have never been able to define femininity and thus had a discordant relationship with standards of womanhood in which their own experiences are ignored. But Black women's safety has never been centered in societal and political discussions of violence against women. Women as a category is presumed to include all women, but it does not.

And access to and success in sports for Black women, similarly, has never been prioritized. The statistics about who has benefitted from Title IX show that it is white women. Whose bodies, hairstyles, uniforms, personal style, and private lives are scrutinized, criminalized, mocked? Disproportionately it is Black women athletes who are subject to these indignities. There may be dismay at this, but there is no illusion that this is not how the system was intended to function. Black women in sports are more likely to see that it is not trans women who are to blame for how they are treated.

Convincing white women of this is a more difficult task.

No NIL for you!

 This much belated post about the administration's reversal of Biden (out-the-door) era guidance on distribution of NIL monies is cross-posted at After Atalanta. 

I feel a lot of anger...I feel, and not just anger because of a [military] ban, I feel anger and disappointment at large, just you know trans and non binary people have become public enemy one; and once you start taking away the rights of trans and non binary people, the rest of the chips begin to fall.  

            Sam Rodriguez, Petty Officer US Navy (Today, Explained; Vox Podcasts)

This has clearly come to bear already and I would hope most of us are not surprised. Appalled, yes. Surprised, no. The Kennedy Center canceling the Gay Men's Chorus performance is just one example of how public acceptance for violence against trans people.

Denying women athletes equitable shares of NIL monies is another chip. This news is old by now. (Though to be fair these days news seems to get old within hours.) But the presidential administration basically scoffed at the idea that women athletes--those folks so in need of protection that bills and executive orders galore have banned transwomen from sports--will get anything resembling what men will receive. I have yet to see much from the save women's sports folks about this. In a somewhat paradoxical commitment to ideological consistency The Independent Women's Forum, via lawyer Beth Parlato, has said that Title IX does not apply to NIL and that the left needs to stop trying to expand and distort Title IX's original intent. I am not convinced she knows what the law's original intent was or who was supporting it. Also, what group that has Independent Women in its title is arguing against greater economic power for women?? I mean, this one, it seems. I did not see any mention of this on the web pages of Champion Women, the Independent Council on Women's Sports or any of Riley Gaines's socials. 

This is the memo from the Department of Education website (which still exists at the time of this writing). It is short and the case is not compelling. Craig Trainor, the acting assistant secretary for civil right, called the Biden guidance "burdensome." We have heard this before. Probably in a lot of places. But it was a sentiment many white men expressed when Title IX was passed. Certainly we cannot give women the same number of opportunities or the same amount of money, they protested. And Title IX did not require that. Those protests are the reason the three-part test exists. It was so opportunities for participation do not have to be 50/50. Budgets do not have to be equal. Coaching salaries do not have to be equal (though I still think there is more to be done in this area). Things need to be equitable; needs--for medical care for example--need to be met. And financial aid does not need to be equal--but it needs to be equitable. 

The issue is not that is it burdensome to work toward equality. The issue is that it is hard for some people to fathom giving up their privilege. 

What can be done?

1. Lawsuit(s). As soon as things start getting divvied up, someone(s) is going to sue. This seems like a class action type of thing so I predict a campaign around it will emerge. Word of advice to athletes: choose your lawyers and your allies carefully. Make sure you know what their commitment to equality looks like; make sure they understand intersectionality. 
2. Strikes. Withhold your labor, women athletes. I know this is a sacrifice. But a lot of people make a lot of money off of women's collegiate sports these days. Leverage that. 
3. Solidarity. If you are one of those women athletes who gets a lot of attention--use your platform. If the women's golf team's strike is not going to draw eyes because people do not care about women's golf where you are, but they do care about seeing the softball team go to Oklahoma City and you are a member of that softball team...stand with them. Women basketball players are in a great position right now and there are notable activists among them (hey there, Paige Bueckers!). Take a lesson from your comrades in the WBNA and all they have done (and maybe WNBAers should head back to their alma maters and do some strategizing). Also--MEN--some of you are getting screwed by this too. Stand together. Also, also--men who are benefitting--your presence and voice in the name of equality is required. 

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?