Sauce for the Goose

Sauce for the Goose
September 11, 2013

David L. Applegate

David Applegate is a Chicago-based trial lawyer and partner at the law firm of Williams Montgomery... (read full bio)

If gender no longer determines whom you can marry and who
can serve in combat, then should it still determine who can play on which high
school sports teams? 

That question now confronts the Pennsylvania Interscholastic
Athletic Association because a Pennsylvania judge earlier this month turned
down the PIAA’s request to modify a 1975 state court ruling regarding girls playing
on boys’ high school athletic teams.  Call
it the law of unintended consequences:  Pennsylvania
Commonwealth Court Judge Kevin Brobson’s recent ruling lets boys play on high
school girls’ sports teams – at least for now. 

No doubt as old as time, the quest for gender equality began
in earnest in the United States in 1848 with the “Declaration on Sentiments
in Seneca Falls, New York, gained momentum with ratification of the 19th
Amendment in 1920, and arguably took its next major step in the early 1970’s as
dwindling United States involvement in the Viet Nam War made the unfairness of
a male-only military draft inconsequential.

In 1972, social and political forces coincided as Ms. Magazine debuted on the newsstand, Congress
passed Title IX of the Education Amendments Act, and Congress passed and sent
to the states for ratification the Equal Rights Amendment. 

Written in 1923 by suffragist leader Alice Paul and
introduced without success into every session of Congress since 1923, the ERA
provided simply that “Equality of rights under the law shall not be denied or
abridged by the United States or by any state on account of sex.”  ERA opponents argued at the time that the
proposed amendment would lead to such perceived horrors as public lesbianism, gay
marriage, no-fault divorce, abortion on demand, fatherless children, women in
men’s locker rooms, and even unisex washrooms. 

Although the ERA has still not been ratified by the necessary
38 states, many of its goals have already been adopted by custom or by state
and federal law, most notably the equal educational opportunity amendments of Title
IX and the equal employment opportunity provisions of Title VII of the Civil
Rights Act of 1965. 

Under Title IX, women are guaranteed equal educational
opportunity with men, which since Cohen v. Brown University in 1996 has meant proportional opportunities
on varsity athletic teams.  Because the
biggest money-making intercollegiate sport (major college football) requires
about 100 male scholarship players to be competitive, however, and because
nearly three out of five current undergraduates at U.S. four-year institutions are
now female, that has meant eliminating men’s varsity athletic teams, typically
swimming, gymnastics, baseball, volleyball, and sometimes hockey or crew.   

While seemingly unfair to young men, the result has generally
been good for young women: helping them to keep fit, to learn teamwork, to
develop self-confidence, and to earn college scholarships.  Meanwhile, however, what to do with all those
boys and young men who want to play sports but can’t find a team? 

In college the answer is usually to play a club sport or to choose
another sport or even another college. 
But in states like Pennsylvania, which has had its own Equal Rights
Amendment since 1971, the answer has been to let high school boys play on high
school girls’ sports teams when there is no boys’ team. 

The Pennsylvania ERA, like the proposed national ERA,
provides that “[e]quality of rights under the law shall not be denied or
abridged in the Commonwealth of Pennsylvania because of the sex of the
individual.”  (Pa. Const. art. I, § 28.) In 1975 a
Pennsylvania state court said this means the PIAA must permit girls to compete
on high school boys’ sports teams. 

At present, according to Associated
Press reports
of a recent survey to which about half of PIAA schools
responded, 104 of 1400 PIAA schools have had girls who played boys’ football,
112 who wrestled boys, and 34 who played boys’ soccer.  But about three in five Pennsylvania high
schools also allow boys to play on girls’ teams, including 38 in field hockey,
fourteen in volleyball, eight in lacrosse, five in soccer, and one each in
swimming and tennis.  The PIAA and some
of its members don’t approve, and sued to modify the 1975 court decision to prevent
boys from competing on girls’ teams while still permitting girls to compete on
boys’ teams. 

Judge Brobson rightly ruled that he has no power to change
PIAA policies or to give advisory opinions. “If PIAA, as the primary
policymaking body for interscholastic competition in the Commonwealth, believes
it is appropriate to take action in this area,” he
said instead
, “then it should take the first step into the breach and
create a policy.”  “Only then,” he
continued, “if that policy is challenged in a court of law, may its
constitutionality be evaluated.”

Whether boys competing on
girls’ teams – or girls competing on boys’ – makes any sense is in the eye of
the beholder.  But since Brown v. Board of Education, the United States has at least
paid lip service to the notion that “separate educational facilities are
inherently unequal,” and Title IX cases hold that school athletic programs are subject
to the law governing educational facilities. 

What’s sauce for the goose
should be sauce for the gander, but how this will play out in Pennsylvania
remains to be seen. 

David L. Applegate

David Applegate is a Chicago-based trial lawyer and partner at the law firm of Williams Montgomery... (read full bio)