The statistics are impressive regarding the increased participation of women and girls in sports since Title IX became a federal civil rights law that prohibits gender discrimination at any educational entity that receives federal funds. According to research by the Women’s Sports Foundation (WSF), the percentage of female athletes competing on college teams has increased from 15% in 1972 to 44% in the 2020-21 academic year. But despite this increase, few institutions are in compliance with Title IX.
“What we’ve seen through research is that while we’ve seen exponential growth and opportunities for participation, we know that especially at the high school level, those opportunities are predominantly for white, suburban girls,” says Sarah Axelson, vice president of advocacy at WSF. “We need to make sure we extend opportunities to participate in sport to all children because we know the benefits that sport provides. We want to make sure everyone has access regardless of race, socioeconomic status, location or zip code.”
Title IX not only impacts athletics, but also affects sexual abuse policies on college and university campuses. Victim protections were rolled back during the Trump administration, which the Biden administration is addressing and possibly fixing, but thorough safeguards and protections are still not in place at all institutions of higher education.
“The most important part of my job is educating administrators across college campuses about exactly what Title IX means,” says Alexis F. Trumble, associate attorney at Nelson Mullins Riley & Scarborough LLP. In practice, the former collegiate gymnast focuses on aspects of litigation and school law, particularly federal Title IX compliance. Colleges and universities hire her to review all aspects of their institutions and identify areas that need improvement.
Title IX is only 37 words long. “The interpretation of Title IX has really run the show for the last 50 years, except for those written by and for lawyers,” says Trumble. “The questions I get are about what does Title IX actually mean for the university president, the general counsel, the head coach, [or] athletic trainer, because 37 words are simply too short to cover all the different areas of education that Title IX touches.”
Studies conducted by the WSF and a review of the NCAA’s approach to the 2021 women’s championships by Kaplan Hecker & Fink LLP documented gross gender disparities in Divisions I, II and III. This included a disproportionate number of athletic opportunities for male athletes and a lack of investment in women’s athletic programs, including athletic scholarships, recruiting, and coaching compensation. The WSF is also investigating an increase in non-compliance since the outbreak of the COVID-19 pandemic.
“Title IX doesn’t just cover participation; it covers scholarship opportunities, benefits and services, and everything else related to the traditional student-athlete experience,” says Axelson. “Whether it’s the equipment, the uniforms, the schedule and game times, the coaching, it all goes into the sports experience and the way the student-athletes are treated. That’s where we see some inconsistencies these days.”
It’s up to people who are discriminated against to understand their rights and know what to do about it, Axelson says. WSF maintains a strong advocacy of Title IX. One key part is educating the public about their rights and empowering them to advocate for change. “In order to really see more compliance … we need people on the ground who are dealing with discrimination to know that it is discrimination,” Axelson explains.
“The full promise of Title IX has not been fulfilled with these disparities in college sports,” says attorney Lisa N. Cloutier, Boston-based senior legal counsel for The Fierberg National Law Group. Cloutier represents students and staff in school-based Title IX proceedings, civil litigation, Office for Civil Rights complaints, and Clery Act (Crime Statistics and Safety Policy) complaints. These cases primarily include sexual harassment, assault or harassment based on gender identity and expression. As a lifelong athlete and current international triathlete, Cloutier is aware of the issues surrounding the sport. She says she would like to see the Department of Education, Office of Civil Rights act on some issues related to sports.
Cloutier points out that “the other big piece is that you can’t talk about Title IX … without talking about trans and non-binary students who are under such attack in this country both in athletics and obviously much more broadly.” He says that believes that policing girls and women’s bodies and enforcing gender stereotypes is antithetical to Title IX, but several states are passing laws banning transgender girls from playing sports.
“The Trump administration has removed all protections for trans students under Title IX,” says Cloutier, who acknowledged that dealing with reversals at the federal level is a work in progress.
Cloutier says the Trump administration’s repeal has had a serious impact on survivors, especially transgender and non-binary students. There are instances of LGBTQ individuals being harassed by professors and peers for their gender expression.
There have been improvements over the past 10 years, Cloutier says. However, a persistent problem is that even when a student perseveres through the exhaustive Title IX process and the perpetrator is found responsible, the penalties often do not match the severity of the harm caused. He mentions one case where the respondent managed to stop the process only after the last semester was over, which meant that the suspension for one semester had no impact.
“We are far behind in addressing gender discrimination under Title IX in the areas of sexual abuse, sexual harassment, and gender-based harassment,” says Dr. Sandra Hodgin, founder and CEO of Title IX Consulting Group. “The country is very divided in really understanding the controversies behind why there is such a culture of rape and why campuses and schools tend to protect their images and reputations versus protecting their own students and staff.”
Hodgin is called upon to look at policies and procedures at various institutions to help trustees and their legal counsel understand the pitfalls and red flags that exist. Provides compliance recommendations as well as best practices to help campuses reduce liability. Most institutions are receptive, he says, but there is a small minority of campuses that refuse to make changes and prefer to settle lawsuits.
Trumble’s research work as an undergraduate focused on sexual and gender-based violence on college campuses. During law school, a summer internship with a firm that had an extensive Title IX practice inspired her to focus on this area of law.
“We help educate college administrators, whether in student life, student discipline or athletics, about what is required of them [is her focus]” says Trumble. “The different paths they need to take that will help them develop strategies to proactively and intentionally improve and maintain compliance with Title IX.”
Trumble walks through gyms, locker rooms and practice facilities to assess athletic compliance and access to fair resources and rewrites the institution’s Title IX sexual misconduct policies to ensure they are in line with current regulations. As new regulations are promulgated, Trumble says he’s seeing an increase in requests to review sexual abuse policies. “As the Title IX sexual abuse landscape changes, so do the needs of my clients,” she says.
An ongoing effort
A school that fails to comply risks losing federal funding, although Trumble is not aware of the Office for Civil Rights (a federal law enforcement agency) ever imposing a penalty. Other motivations, both for individuals and institutions, include the desire to avoid negative publicity and the desire to provide fair opportunities. He says he’s seeing many institutions deliberately address compliance.
“When looking at gender equality in sports, there are certainly cultural and societal issues at play,” says Axelson. “Sports can help push a cultural narrative and push cultural change.”
It remains difficult to address Title IX issues through litigation on a case-by-case or school-by-school basis, Cloutier notes. Sometimes public pressure is the most effective tool to push for change. He says that applies in abundance in athletics, and he sees it in Title IX sexual assault.
In a “Title IX utopian campus,” says Hodgin, there would be a very clear Title IX office where everyone would know who the Title IX coordinator is and what to do if there is an injustice related to gender discrimination on campus. Information about the office would be thoroughly disseminated across campus and everyone working in the Title IX office would be well trained in all aspects of compliance.
“They would know how to provide support measures to make students feel safe, and that would be true for both complainants and objectors,” says Hodgin. “They would also make sure that if the respondent is a danger to the community, they understand that they have to remove that individual for a short period of time during the investigation to ensure the safety of the community. They wouldn’t be afraid to do it.”
Campuses would also have safety measures in place, such as multiple blue lights (emergency alert stations) throughout campus and sufficient security personnel trained in how to handle trauma.
“More and more campuses are realizing that they have to change,” says Hodgin. “People are trying to understand the human aspect.