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.