In April, the International Association of Athletics Federations (IAAF) passed racist and transphobic regulations that require women with naturally high levels of testosterone to lower their levels via medical intervention in order to compete in various races. These guidelines target people like two-time Olympic gold medalist Caster Semenya; the South African runner has been dogged for almost a decade by complaints that she has an “unfair advantage” because her body produces higher amounts of testosterone than some other women’s do.
Stories like Semenya’s are the perfect backdrop for “Against Women’s Sports,” a study published in the Washington University Law Review on April 3 about how sports came to be segregated by sex and gender. In the paper, University of Denver law professor Nancy Leong explores the complex reasons that sex-based segregation persists in sports and whether it stands up to legal scrutiny. She also proposes solutions that could provide a more just experience for athletes and audiences.
I spoke to Leong about the relationship between sex-based segregation and anti-discrimination law, how Title IX fits into her research, and how we can better categorize sports so that they are fairer and more inclusive.
Can you talk about why you embarked on this research?
In general, people are very skeptical about [whether] the government [should be] involved in dividing people on the basis of some sort of classification—like race or religion or, when it comes to sports, either sex or gender. If the government is going to classify people on the basis of sex or gender then it needs to have an important reason for doing so—what we call “intermediate scrutiny”—and whatever way the government goes about [that process] has to be closely tailored to further that important interest.
So, you need an important interest and it needs to be closely tailored. By the way, are you a lawyer?
I am not a lawyer! I am a sports writer.
Okay, I just wanted to make sure. In general, classifications on the basis of sex tend to get struck down, like United States v. Virginia, the Supreme Court case that desegregated the Virginia Military Institute. We have a case saying that an all-female nursing school is unconstitutional. So it struck me that sports are a relatively small set of situations in which we not only allow but assume that it’s okay for the government to be involved in segregating on the basis of sex; [it’s] one of the few areas where sex segregation is tolerated, no matter [the] sport.
Whether it’s 4-year-olds playing soccer or college athletes doing gymnastics or a senior-citizens’ bowling league: These all tend to be segregated by sex, and to examine this issue we are actually doing intermediate scrutiny. The rationale has always been, “Men are bigger, stronger, faster, more athletic than women, and so of course we can’t have men and women playing sports together.”
Women treading into sports rubs people the wrong way because there’s a sentiment that sports should be this place where men can just be men.
In the paper, I argue that we need a much more nuanced examination of whether governmentally imposed sex segregation of sports actually survives the constitutional requirements that are built into intermediate scrutiny. I think it depends very much on the type of sport, and also [on] the level at which the sport is being played. So there might be reasons to segregate sports at the Olympics that, for example, aren’t necessary in elementary-school gym class at a public school.
I think there are some sports where sex-based segregation makes the most sense. For others, I wonder whether it would make more sense to use classifications that are not based on what we call “a suspect class,” meaning a class that has been used for discrimination in the past. So for example, in wrestling, perhaps weight classes could do all the work. When it comes to fencing, I’m not sure we need to segregate at all. There are number of other sports that I’ve also looked at.
Can you talk about some of those other sports?
Women are starting to participate in ultra-endurance sports to the same extent as men, and in some cases, women have been beating them. When you look at long-distance open-water swimming, women hold a lot of the overall world records. In ultra-endurance running, Courtney Dauwalter won the Moab 240—this insane 240-mile race in the Dubai desert. She beat the closest man by over a marathon of distance and her time was 10 hours faster than his. As women compete more, I just wonder if they’re gonna start beating men in some of these sports where, for a long time, it was assumed men and women couldn’t even compete in the same division.
The paper’s central premise is that we need a lot more empiricism in our examination of sports and that, as a matter of constitutional law, we need a real demonstration that sex segregation in sports serves an important government interest. It’s a little bit more relaxed when it’s not the government who’s doing the segregating. But as a matter of policy, I think that it would be a good idea for private sports organizations to do the same type of [empirical] analysis.
I’m in Boston, and in my neighborhood, youth soccer was always coed until the league separated them last year for the first time. Parents were really upset about it. It was a big to-do, but it was interesting to hear all the arguments happening. In contrast, little league baseball is coed until the girls are pushed into softball, usually by the time they’re in high school.
One of the issues with sex segregation, especially when it’s not justified by any government interest is that it enables a different version of the sport for men and women. Look at how different men’s gymnastics is from women’s: Male gymnasts aren’t allowed to [compete on] the balance beam right now. I don’t have any research about this [other than] informally talking to my friends, but I think that there are some girls who would rather play baseball. The game has more appeal to them [than softball].
There’s an increase in girls playing baseball now, but yeah, they’ve generally been funneled into softball, which was created to be a less “aggressive” version of baseball for girls. But there’s been a big push for girls to stay in the sport. But this is related to the next thing I wanted to talk about: I think a lot of people bristle at the idea of mixed-gender leagues, for whatever reason.
Yeah they really do, don’t they? When I started writing about this, I would get emails saying [my ideas are] insane or mad. My whole argument, if you actually read what I’ve written, is that we should treat this issue with a lot more nuance. But women have been gaining ground in the workplace, politics, and so many [other] domains of society—and, until recently, one thing that has remained exclusively male, in a lot of cases, is sports.
When we think of football, it’s guys on the field. When we think of basketball, it’s guys on the court. The idea that women are treading into sports rubs people the wrong way because there’s this unspoken sentiment that [sports] should be this place where men can just be men. And this is the part that people are much less likely to say out loud: It’s frightening [to them] that women have been making strides not only in the workplace, not only in politics, but also in realms of physical achievement, because that’s the only thing that’s left.
I think that’s a really important point. Sports don’t exist in a vacuum; that’s why “sticking to sports” isn’t generally possible.
It was expected for a long time that boys were better at sports than girls were. And if that’s not [always] true, then wow, maybe women really are equal to men.
The other part of it is [about] issues that I would describe as more logistical. Some of these [concerns] are totally reasonable, but I think most of them can be worked around—things like, “Well what are we gonna do about locker rooms or in wrestling?” or “Oh my god, isn’t there gonna be a lot of sexual harassment if boys are wrestling girls at the high-school level?” or “Girls don’t want to participate in sports with boys.” But how much of that is actually not about not wanting to play with boys, but not wanting to play with people who don’t treat you as an equal and part of their team?
I talk about this just as a footnote in “Against Women’s Sports,” but I think one option that actually would survive legal scrutiny would be [having] a girls team, a boys team, and a co-ed team. Usually that’s not an option, and I think it would be interesting to see what happens because I don’t want to completely invalidate the value of girls’ spaces and boys’ spaces. I think there probably is some value to having some single-gender spaces. But I’m not convinced that’s the best thing for everyone all the time.
The misogyny that I think is at the root of all of this creates a weird dichotomy. On one hand, we don’t want girls playing with boys because “it would diminish the level of play,” or god forbid they beat the boys. On the other, there is this desire to protect women because maybe their bodies aren’t meant to compete at this level. I’m thinking about the first time that women’s track events were in the Olympics, in 1928, and how they cut the 800-meter for decades because they thought women were too fragile to run that far.
That history is [too] important to disregard when we think of levels of achievement in sports. I was reading a study that showed that women’s 100-meter times are increasing at a faster rate than men’s 100-meter times. Whether it’s high-school runners, college runners, or Olympic runners, women are getting better faster than men are. Men are still faster overall, but women are getting better at a faster rate; that suggests to me that there’s still a history that we haven’t completely shaken off, in which a lot of talent never made it onto the field because they were either channeled into things like cheerleading or weren’t [playing] sports at all. It may take a few generations to actually see where women really are in relation to men in a lot of sports.
Where does Title IX fit into all of this?
Title IX is potentially a hazard for some of this. You can imagine a school saying, “Okay, football is coed now.” That means it’s open to women, but just because women can play doesn’t mean they’re making the team. Or there’d be only one woman on the team, as the kicker. So you can imagine schools potentially abusing the idea of segregating sports. Also, Title IX is not working very well for a number of reasons. I’m in the thick of [my own research] right now about what actually counts as compliance for Title IX. Is it sports, is it resources, or is it actual participants?
The whole sporting experience [could become] more equitable without completely doing away with Title IX. But current ambiguities in Title IX means that sports desegregation at the college level would have to happen carefully to ensure that schools weren’t abusing desegregation as a way to make it look as though men and women were being given equal opportunities to compete while at the same time diverting more resources to sports that make more money—which are also the sports that tend to be predominantly male.
Then there’s a whole group of people who are intersex and don’t necessarily fit concretely into one sex or the other. You’ve also got trans people. I’m thinking about the trans boy in Texas who was forced to wrestle with girls. He didn’t want to wrestle with girls, but he was forced to. In the National Women’s Hockey League, Harrison Brown played in the women’s hockey league, but he had to go off all of his hormones in order to do that. So if we segregate sports by sex or gender, that complicates it.
My colleague Jessica Clark [at the University of Minnesota] thinks that this is [like] racism in a way. It’s really just an effort to exclude certain people because they are disfavored. What I would say is that desegregation does away with this, “oh my gosh, where are we going to put people?” problem.
[If] sports are desegregated in greater numbers, we don’t have that problem. In the sports that are more difficult to desegregate by sex or gender, I don’t know what the answer would be. I don’t think the evidence is there that, for example, a trans woman or an intersex person who’s competing in women’s divisions has an all-encompassing advantage over women who aren’t trans or intersex. I just haven’t found that theory [to be] persuasive.
People are always claiming that with Caster Semenya, but it’s not like she’s unbeatable. People say things like she “looks wrong.” What do you mean by that? What are women supposed to look like? A lot of these arguments are not examined very well. We need a lot more data to back up [those arguments].
But desegregating sports erases that problem because the sport would be for everyone. So nobody has to be put into these boxes in order to participate.
I think that’s right. Most women are not going to be competitive for the NBA because of the height of the people involved and the height of the basket. Think of a world in which there are four basketball leagues; one is for everyone taller than 6’5;” another is for people who are between 6’1” and 6’5;” one is for people who are maybe 5’9” to 6’1” or 5’10 to 6’1;” and the last one is for people who are under 5’9.” I don’t think that it would be less interesting to watch; it would just be a different game. If the hoop was only three-feet off the ground, I don’t know who’d be good at [basketball].
But there may be ways of creating situations where most of the people in some division are men and most of the people in other divisions are women, but sex or gender is not the basis for the division. There’s still a way of separating people into groups where they can compete against people who are physiologically similar to them in relevant ways, right? Maybe the more relevant characters could be height, weight, or some combination of those two things.
Is there anything else that we haven’t touched on yet that you think is important?
I think that people really overlook the way that sports are designed around men’s size so of course men are better at [playing] them. [The] sports of today were designed in a time when men played sports and women didn’t. So of course men created sports like football [that] emphasized speed, strength, and size as an advantage—or at least the game has evolved that way. We can see it with new sports. There’s no reason that American Ninja Warrior courses look the way that they do, right? You can imagine an obstacle that is crawling through a tunnel that has a really narrow diameter. That seems to me like a ninja-relevant skill, but a small person would be better at that than a big person. So the way that the obstacles are designed in American Ninja Warrior dictates who wins.
Same thing with football: The way the sport is designed dictates who is going to be good at it, so if there were sports that emphasized more agility or flexibility, then maybe women would be better at those than men. Those sports aren’t the most popular [though]; it’s not like football is inherently more interesting than women’s gymnastics. That’s just what society thinks right now. But I guarantee that I could design an obstacle course for American Ninja Warrior that more women would [win] than men. I could design a course where a woman would win every time.
This interview has been edited for length and clarity.