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Article Excerpt
I. INTRODUCTION
An increasing number of women at the professional, (1) collegiate, (2) and high school (3) levels are successfully making their way into men's sports competitions and onto men's athletic teams. Within this evolving context of gender desegregation and athletic participation, the idea that boys and girls should only compete on separate teams is changing. Society is increasingly accepting the idea that girls who are good enough ought to be able to play on a boys' team, especially at high schools where a particular sport is offered for boys only. The same cannot be said for the idea of boys playing on girls' teams. Particularly in the sports of volleyball (4) and field hockey (5) administrators are having to deal with the legal and policy questions behind whether boys legally can and normatively should be allowed to play on girls' teams. This note will focus on the sport of high school field hockey and analyze whether, under Title IX (6) or the Equal Protection Clause (7) public high schools must allow boys to try out for and play on their girls' field hockey teams.
In analyzing the issue of whether boys should be allowed to play on girls' high school field hockey teams, this note will provide (1) an overview of the scope and history of boys playing on girls' high school field hockey teams, (8) (2) a discussion of Title IX (9) and the Equal Protection Clause, (10) and (3) a comparison of the differing judicial opinions from states where this matter has been litigated. (11) Throughout this note, the author will make reference to a fictional character named Kenny, (12) a high school boy too small to play football and too short to play basketball, but just right for field hockey, and discuss--apart from the legal issues--whether Kenny should be allowed to play on a girls' high school field hockey team.
II. GENERAL DISCUSSION
A. Scope and History of Boys' Participation in Girls' High School Field Hockey
After a largely unsuccessful spat of lawsuits attempting to allow high school boys to play on girls' teams in the late 1970s and early 1980s, (13) boys are once again going to court to get onto girls' high school athletic teams, particularly girls' field hockey teams. (14) As the Wall Street Journal reported in 1998,
Some teenage boys are suing for the right to run around school athletic fields in pleated skirts. In an unusual legal twist, they have been using sex discrimination laws to try to get onto girls' sports teams. Most of these cases involve field hockey, which in this country has traditionally been played by girls. (15)
The game of field hockey, where two 11-person teams try to hit a ball through a goal on a field using sticks, (16) is among the world's oldest sports. (17) The modern version of field hockey evolved in nineteenth century England where the first women's club was formed in 1887. (18) Field hockey was transported to America--by a woman--in the early twentieth century. (19) While a sport mainly played by men in the rest of the world, (20) in the United States field hockey is a game played almost exclusively by women. There are currently zero school-sponsored high school or college men's field hockey teams. (21)
There is no consensus among the states in which girls' high school field hockey is played as to whether boys should also be allowed to participate. Massachusetts became the first state to declare the blanket exclusion of boys from girls' high school athletic teams unconstitutional in 1979. (22) Boys have been playing girls' field hockey there for over 20 years. Boys can also play in New York, (23) and some parts of Pennsylvania. (24) In Maryland, local school districts may let boys play field hockey in the regular season, but boys are not permitted to play in the state tournament. (25) Boys have lost legal challenges to rules excluding them from playing on girls' high school field hockey teams in Maine, (26) New Jersey, (27) and Rhode Island. (28)
B. Arguments Against a Boy's Right to Play
The idea of boys playing on girls' field hockey teams could be seen as violating traditional--although arguably paternalistic and increasingly outdated--notions of fairness. For instance, scientific data shows that most high school aged boys are bigger, faster, and stronger than most high school aged girls. (29) These physiological differences could give boys playing field hockey against girls an unfair competitive advantage.
This perception of fairness has not been lost on courts deciding whether boys should be allowed to play girls' field hockey. The Superior Court of Maine for Cumberland County, for instance, in upholding that states' ban on boys playing girls' high school field hockey, noted:
as a consequence of their physiological advantages, boys have the capacity to dominate integrated field hockey games. Anecdotally, they do dominate. They handle the ball and control the play of the game such that their impact on the game is disproportionate to their numbers. This is so largely irrespective of their skill and experience. Anecdotally, boys of similar age and experience intimidate girls and affect the way girls play field hockey. (30)
Players, parents, and coaches complain about the inherent unfairness of larger and stronger boys playing on girls' high school field hockey teams. Female participants have said of playing field hockey with their male counterparts: "Playing with boys is awful! When you win, people think it's only because of the boys on your team. It's so defeating." (31) After playing against a high school junior varsity team in Massachusetts with a 5'10", 210 pound boy, a freshman girl said, "I was scared, and I don't think he has the right to come into our game and make us scared. Besides, what self-respecting guy would wear a skirt to play a game?" (32) Safety is a major concern. An administrator seeking to keep boys out of girls' field hockey games in Maryland told The Washington Times, "Our objection [to boys playing] was that the athletes would be put at physical risk." (33)
A separate argument against allowing boys to play on girls' high school field hockey teams--aside from the competitive fairness issues--is that "girls could lose their playing time or their position on the team if boys are allowed to play." (34) This outcome would seem to fly in the face of Title IX, which was arguably meant solely to promote women's opportunities. (35) The Third Circuit wrote,
we must note that although title IX and the regulation apply equally to boys as well as girls, it would require blinders to ignore that the motivation for promulgation of the regulation on athletics was the historic emphasis on boys' athletic programs to the exclusion of girls' athletic programs in high schools as well as colleges. (36)
In summary, apart from the legal arguments that will be addressed, compelling normative arguments can be made that boys should not be allowed to play on girls' high school field hockey teams. Boys generally possess competitive physiological advantages over high school girls and when boys make it onto a field hockey team, the boys necessarily displace girls from those roster spots.
C. Arguments In Favor of a Boy's Right to Play
Still, boys can make compelling and persuasive arguments that they should be allowed to play on girls' high school field hockey teams. For instance, internationally, field hockey is predominantly a male sport. (37) Since no boys' high school field hockey teams exist, (38) one of the few chances high school aged boys who want to play have is to play on girls teams.
In addition, prohibiting boys from playing on girls' field hockey teams smacks of governmental paternalism--a state-sponsored attempt to protect "the weaker sex" (39) from male "hulking teenage piles of testosterone." (40) An attorney who successfully represented a boy seeking to play girls' field hockey in Massachusetts told the Wall Street Journal, "It was demeaning for the girls to be told that it was unsafe for them to play against a team where there was a boy." (41) A Rhode Island trial judge found that "[t]he ban of boys is based on archaic and overbroad generalizations and assumptions about female athletic ability." (42)a An attorney trying to help a boy play field hockey noted that while keeping boys out of girls' sports "seemed to make common sense 10 years ago," the issue "has to be looked at again, and looked at more carefully, because the numbers have changed, and the opportunities for girls have changed." (43)
Furthermore, the exclusion of high school boys from girls' field hockey does seem like reverse discrimination, especially at schools where girls are permitted to play on boys teams. "It's basically sexist that guys can't play," says one boy excluded from field hockey participation in Maryland. (44) This would arguably be an easier issue if all the boys who wanted to play field hockey were over six feet tall and weighed more than 200 pounds. But many boys who want to play are essentially the same size as the girls. (45) In their cases, the arguments for exclusion based on competitive fairness or safety concerns would be unpersuasive.
Assume for upcoming discussion that Kenny (46) is small for an average boy his age, with a height of '5" and a weight of 135 pounds. His strength and quickness are average in comparison to the girls on his high school's field hockey team. Based on competitive tryouts he was good enough to make the squad, though he certainly did not stand out. Unfortunately for Kenny, he lives in a state that excludes boys from participation on girls' high school athletic teams. His only recourse is to challenge this state provision in court to see if it violates Title IX or the Equal Protection Clause of the Fourteenth Amendment. The balance of this note will analyze those provisions and the ways courts have interpreted them, with a brief conclusion regarding whether Kenny should be allowed to play. (47)
III. TITLE IX
A. An Overview of Title IX
Prior to recent decades, most sporting activities in the United States have been played by and organized on behalf of men rather than women. (48) To provide more opportunities for women, Title IX was adopted by the United States Congress in 1982. (49) The passing of Title IX is intimately connected to a skyrocketing growth in women's athletics in America. "Title IX has helped girls and women participate in interscholastic and intercollegiate athletics in far greater numbers than they had in the past." (50) Of interesting note, however, is that Title IX itself says nothing about athletics. "Indeed, the statute's application to athletics was barely mentioned before it was enacted in 1972." (51) So what exactly is Title IX and how did athletics, including high school field hockey, come within its purview?
Title IX, a gender equality statute, was proposed as an amendment to Title VI of the Civil Rights Act of 1964. (52) Title VI provided that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." (53) The purpose of Title IX was to apply the same standard prohibiting racial discrimination to gender discrimination. (54) The language of Title IX mirrors that of Title VI: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." (55)
On its face Title IX does not mention athletics...
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