Gender (Discrimination) Trouble
By
By
Katharine K. Baker[1]*
The LGBTQ civil rights movement has upended traditional understandings of what it means to be male or female. Building on this movement’s achievements, a growing number of scholars have urged that the goal of sex discrimination law be to question when, if ever, the law can make distinctions between men and women. This article pushes back against these claims. Even though what it means to be male or female is now much more contested both socially and legally, sex discrimination law always has and always will have to grapple with the normative dilemmas posed by treating those who have traditionally female anatomy differently than those with traditionally male anatomy.
To illustrate this point, I examine two sex equality stories that have rarely been told together: pregnancy in the workplace and sports in educational institutions. Pregnancy discrimination law has often rejected different treatment for those with female anatomy; in contrast, the major federal law dealing with sex discrimination in sports, Title IX,, is premised on recognizing female sports as different from male sports. For those who believe that sex equality efforts should challenge all legal distinctions between men and women, the history of pregnancy and sports offers a cautionary tale. The drive to diminish the significance of anatomical differences has produced a system of legal protections for pregnant workers in the United States that is conspicuously lacking. The substantial rise in female participation in sports under Title IX, on the other hand, has been a resounding success. The history of pregnancy and sports shows that the future of sex equality lies not in abandoning sex distinctions but in creating doctrine and laws that recognize their risks but also accept their benefits.
If I were a guy, I wouldn’t be writing this because I’d be out there playing and winning while my wife was doing the physical labor of expanding our family.
Serena Williams[2]
This article explores two sex equality dilemmas, pregnant people in the workplace and competitive sports in educational institutions. Pregnancy in the workplace is regulated under Title VII’s antidiscrimination mandate.[3] The treatment of female athletes in educational institutions is regulated under Title IX’s antidiscrimination mandate.[4] Because both issues implicate constitutional sex equality concerns, these statutory mandates also must be implemented in ways that are consistent with the sex equality guarantee in the Equal Protection Clause. Yet, as interpreted, the two statutory mandates reflect very different approaches to sex equality. Despite or because of the antidiscrimination mandate in Title VII, the United States—almost alone among countries in the world—refuses to demand that those who perform reproductive labor be treated differently than those who do not. Despite or because of the antidiscrimination mandate in Title IX, educational institutions must treat female athletes differently than male athletes. For many people concerned about women workers’ well-being, refusal to treat pregnancy as a condition that warrants different treatment, in particular, the lack of paid leave, is a dark mark on this country’s treatment of women. For many of those same people (and others), Title IX has been a remarkable success for women.
That there are different ways of interpreting antidiscrimination mandates is not in and of itself surprising. The two different approaches to sex equality reflect a “sameness/difference” debate within legal feminism that is at least a century old.[5] The sameness argument suggests that whatever differences may exist between men and women, women will be better off if they are treated by law as the same as men. The difference argument suggests women will be better off if they are treated in a manner that reflects the ways in which they are different than men.
Recent trends in case law and scholarship suggest that the law’s traditional struggle with sameness and difference has been misguided.[6] These trends emanate, in part, from the LGBTQ community’s successful use of sex discrimination doctrine to secure civil rights for LGBTQ plaintiffs.[7] In Bostock v. Clayton County, the case securing antidiscrimination protection for LGBTQ employees under Title VII, the Supreme Court adopted a formal, acontextual sex discrimination methodology that renders any difference approach to sex equality suspect.[8] At the same time, a considerable body of recent sex equality scholarship argues that sex discrimination doctrine, at its core, is about dismantling gender stereotypes.[9] Building on broader theoretical attacks on any process that “make[s] coherent the categories of male and female,”[10] scholars argue that any notion that there are “real differences” between men and women “has never been coherent.”[11] Thus, according to those scholars, any governmental action grounded in those differences requires especially exacting scrutiny because of the tendency for ideas around difference to perpetuate stereotypes.[12] Both of these approaches, formal equality and anti-stereotyping, have proved important to protecting the LGBTQ community from discrimination,[13] and both approaches avoid the problems attendant upon accommodating difference, but both approaches also abandon the benefits that can flow to the beneficiaries of a difference approach.
Pregnant people and female athletes often benefit from a difference approach.[14] This is not mere coincidence. Pregnancy and sports are related because puberty, the process that makes approximately half of all human bodies able to gestate, also makes those bodies, on average, shorter, wider in the hips, and less capable of developing muscle mass than bodies that are designed to produce sperm.[15] Testosterone, critical to producing sperm and far more prevalent in people whose pubescent process involves the enlargement of testes, increases height, muscle mass, and oxygenation capacity.[16] Thus, as a physiological matter, the relationship between pregnancy and competitive sports is obvious: the process that makes humans able to reproduce also produces, on average,[17] bimodally distributed bodies with one mode, the gestators, relatively less tall, strong and fast, and the other mode, the sperm providers, relatively more so.[18]
The existence of this mostly bimodal distribution of physiological differences in humans hardly means that the law has to recognize those differences. How the law might choose to make distinctions, or not, between those on either side of the bimodal distribution is a separate inquiry from whether, on average, the differences exist. There are costs to categorizing and recognizing difference, especially given the potential to perpetuate stereotypes. As noted, the law has been particularly concerned about those stereotypes and has chosen to minimize physiological differences in the context of pregnancy, while openly relying on differences in the context of sports.
This article traces the development of the law in both pregnancy and sports, and it unpacks how the doctrine in both areas still brims with unresolved tensions in the sameness/difference debate. As Part I details, the statutory attempt to secure anti-discrimination treatment for pregnant workers by singling pregnancy out for special (different) treatment in the Pregnancy Discrimination Act[19] fostered a perceived need to embrace a gender neutral (sameness) approach to all forms of childbirth leave in the Family and Medical Leave Act (“FMLA”).[20] The recent Pregnant Workers’ Fairness Act (“PWFA”) takes a step back towards difference by treating pregnancy as a distinct form of disability, though it does not affect leave policies.[21] At the same time, Title IX’s sports regulations, which create a separate-but-equal (difference) approach to women’s sports, sits uncomfortably with the subsequent development of sex equality constitutional law—particularly treatment of other single-sex educational endeavors—which emphasizes the importance of sameness.[22] In neither area has the law rendered a clear picture of when or whether the law demands sameness or difference.
After describing the continuing tension in the doctrine in Part I, Part II then analyzes how the recent embrace of both formal equality and anti-stereotyping might impact the law of pregnancy and sports. A formal equality approach would make it very difficult to offer the kind of paid childbirth leave that the rest of the world provides and it would likely dismantle Title IX’s approach to women’s sports. An anti-stereotyping approach would require wide-ranging changes to gendered nomenclature in pregnancy and sports and leave those who gestate and most women athletes more vulnerable to discrimination than they are now. But, Part II suggests that the adoption of either approach likely would not resolve the tensions familiar to the sameness/difference debate. Those tensions would remain, manifesting themselves in the normative commitments that underlie legal policies around pregnancy and sports. How the law can or must accommodate physiological differences that continue to characterize more than 98% of the population will continue to reflect hard judgment calls regarding the benefits of singling out for special treatment those with the primary and secondary sex characteristics that have traditionally been associated with women, versus the costs, particularly in terms of the perpetuation of stereotypes, of doing so.
Part III uses contemporary empirical evidence in both the pregnancy and sports contexts to underscore the potential benefits of a difference approach notwithstanding the current pressure to minimize it. It compares the United States’ mostly sameness approach to pregnancy leave with the rest of the world’s difference approach to find little discernable impact on gendered patterns with regard to caretaking or work participation or wages for those who receive paid pregnancy leave and then return to work. A difference approach to pregnancy leave, adopted by all but one other country in the world, does not seem to foster stereotypes that end up hurting women in the workplace. Thus, it may be appropriate for U.S. law to revisit its sameness approach to pregnancy because, as Part III makes clear, those most hurt by this policy in the United States are women with the fewest economic and social resources. In practice, a sameness approach to pregnancy leave is strikingly regressive.
With regard to women’s sports, though sports organizations have a history of using women’s physiological differences to treat women athletes worse than male athletes for reasons that have nothing to do with women’s physiological differences, there is no denying that Title IX ushered in transformative change with regard to women’s relationship to sports. Title IX’s embrace of difference is popular across genders, phenomenally effective at increasing girls and women’s participation in sports and has rendered positive externalities to self-esteem, team-building ability, and competitiveness in women that help them compete with men in other domains. Given the success of Title IX as a mechanism for empowering so many women, the U.S. may want to be wary of anti-discrimination tests that would dismantle it.
Together, this article makes three contributions. First, it tells two sex equality stories, about pregnancy and sports, that have rarely been told together. By juxtaposing and unearthing the similar tensions in the two stories, it helps reveal how ubiquitous the sameness/difference tension has been. Second, it analyzes why those tensions are likely to remain even if courts adopt formal equality or anti-stereotyping frames that abandon reliance on “real differences” as a justification for different treatment. Third, it cautions, based on an empirical assessment of how the differing approaches to sameness and difference have played out in the context of pregnancy and sports, to be wary of bold claims about what sex discrimination is or what sex equality demands. As the ubiquitous tension between sameness and difference shows, sex discrimination is complicated, and it may be best to simply recognize it as so.[23] The nuanced, tense, sometimes inconsistent approach to sameness and difference may be a desired feature, not a flaw, in sex discrimination doctrine.
The question of how to treat workers who will or may be pregnant long pre-dated any legal recognition that discrimination against women was a statutory or constitutional discrimination problem in this country.[24] In the first half of the twentieth century, some feminist activists—often called “maternalists”—championed a difference approach, fighting for, and often establishing, protective legislation for female workers by emphasizing mothers’ social value.[25] Maternalism was always controversial, though, because of its tendency to “reinforce[] stereotypes regarding women’s physical weakness and . . . [] their duties to home and family life . . . .”[26] A sameness approach stands guard against maternalism’s “threat[] to reinforce the normative primacy of motherhood.”[27] Neither the statutory prohibition on sex discrimination in Title VII nor the constitutional recognition of sex as a suspect classification under the Equal Protection Clause in the latter part of the twentieth century resolved that tension between protecting those who gestate children and perpetrating stereotypes around those who might do so.[28]
In the 1970s, the Supreme Court began to understand sex discrimination as a constitutional equality problem under the Equal Protection Clause.[29] In 1971, the Court held that statutes could not reflect an arbitrary preference for men over women,[30] and in 1973, the Court held that sex was a suspect classification and therefore husbands of Air Force members should be entitled to the same spousal benefits as wives of Air Force members.[31] That latter case, Frontiero v. Richardson, was the first of many sex discrimination cases that used male plaintiffs to emphasize how gender distinctions in law were often rooted in stereotypes about what men and women could do.[32]
There were two early sex discrimination cases involving pregnancy, either of which might have spurred the Supreme Court to treat pregnancy discrimination as sex discrimination rooted in gender stereotypes, but neither case ended up being decided as a matter of Equal Protection.[33] In Struck v. Secretary of Defense, a pregnant service member challenged a U.S. Navy policy that required pregnant women to leave the Service after they got pregnant.[34] That case settled after the Navy changed its policy—allowing pregnant service members to be re-assigned—but before the Supreme Court heard oral argument.[35] In Cleveland Board of Education v. LaFleur, two school teachers challenged school board policies that required them to leave work four and five months before anticipated child birth.[36] One of the policies also prohibited re-employment until the first semester after the formerly pregnant person’s child turned three months old.[37]
Four justices struck down the regulations in LaFleur on due process grounds because “the provisions amount[ed] to a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing.”[38] Justice Douglas concurred in the result without an opinion, and Justice Powell concurred in the result but would have decided the case under the Equal Protection Clause because the provisions were clearly irrational.[39]
Justice Powell’s finding of irrationality in Lafleur and the Navy’s eagerness to change its policy in Struck strongly suggest that the policies in those two cases were (ridiculously) overbroad pregnancy policies, likely rooted in archaic notions that pregnant women should not be seen in public or a belief that they were incapable of working. The policies in these two cases evidence a history of rank discrimination based on stereotypes about pregnancy and incapacity. But that does not mean that all pregnancy-based distinctions are rooted in stereotype.[40] Even the majority in LaFleur, despite finding that the constitutional problem lay in the conclusiveness of the presumption, suggested that a conclusive presumption regarding the ability to work “during the last few weeks of pregnancy” might be permissible.[41]
Three months after the Court issued its opinion in LaFleur, it heard argument in Geduldig v. Aiello.[42] Geduldig involved a supplemental health insurance program provided by the state of California that required employees to pay into a health insurance fund designed to cover impairments that were not covered by workers’ compensation.[43] The policy excluded pregnancy and some other conditions.[44] The pregnant plaintiffs argued that treating pregnancy differently than other disabilities was rooted in “the mythology that pregnancy-related disabilities are unique.”[45] They also argued that treating pregnancy differently was per se sex discrimination because pregnancy was a “sex-linked characteristic.”[46]
The Court did not view the pregnancy exclusion as rooted in mythology.[47] It was persuaded that the policy was rooted in economics.[48] The insurance premiums were purposefully low for everyone, limited to 1% of the employees’ income, but high enough to cover the majority of disabilities.[49] Many employees got pregnant, and if normal pregnancies were covered under the plan, everyone’s premiums would have to increase in order to maintain the plan’s stability.[50]
The Court also rejected the idea that treating pregnancy differently than other disabilities was per se sex discrimination.[51] Famously, the Court found that the policy distinguished between “pregnant women” and “nonpregnant persons” rather than between women and men.[52] The Court explained, “[t]here is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.”[53] Men and women were being treated the same way as regards pregnancy and therefore there was no sex discrimination problem.[54] The Court was careful to note that pregnancy distinctions could be “mere pretexts designed to effect an invidious discrimination against the members of one sex or the other,” but there was no evidence that the California plan was designed for that purpose.[55]
Two years later, using many of the same arguments but with newly issued Equal Employment Opportunity Commission (“EEOC”) guidance to back them up,[56] plaintiffs made the same pregnancy-discrimination-is-sex-discrimination argument, this time using Title VII of the Civil Rights Act, not the Equal Protection Clause, as the source of law.[57] The Court in General Electric v. Gilbert, relying exclusively on the reasoning in Geduldig, dismissed that claim as well.[58] The economic argument was, again, persuasive to the Court.[59] There was no evidence of discriminatory pretext, and it would have cost both men and women more to insure everyone if the plan included pregnancy in its policy.[60] In subsequent years, commentators have suggested that the Supreme Court could not see pregnancy as a sex discrimination problem in these cases because there were no pregnant men to compare the pregnant women to.[61]
In very short order, following Gilbert, Congress passed the Pregnancy Discrimination Act (“PDA”),[62] which amended Title VII to make clear that the failure to treat “women affected by pregnancy” as “other persons . . . similar in their ability or inability to work,” constitutes sex discrimination.[63] The PDA declared that discrimination on the basis of pregnancy was actionable under Title VII and announced a standard that triggered a comparison not between women and men, but between pregnant people and non-pregnant people who were similarly affected in their inability to work.[64] The PDA thereby ushered in what became a complicated relationship between sex discrimination law, disability discrimination law, and pregnancy.[65]
For decades, courts have struggled to determine what counts as an acceptable disability comparator for pregnancy.[66] Are the kinds of accommodations pregnancy might require (absence or tardiness due to nausea, temporary weight-lifting limitations, limited extended standing ability, frequent bathroom breaks, temporary exhaustion, etc.) comparable enough to what other employees receive to require accommodation?[67] The use of disability law as a comparator put those concerned about the treatment of pregnant women in the workplace in a kind of double bind.[68] As Professor Deborah Widiss has written:
To counter [stereotypical] bias against pregnant employees, advocates typically want to emphasize that pregnant women remain competent employees and that employers should ignore pregnancy, just as they should (usually) ignore race, religion, or national origin. At the same time, to receive accommodations advocates must acknowledge that pregnancy sometimes does interfere with work.[69]
With its switch to a disability comparator in the PDA, Congress left unaddressed whether the lack of a male comparator could then be used as a justification for providing pregnant employees with benefits men did not receive. That is, the PDA arguably left the door open for policies to treat some employees differently—and better—because they could get pregnant. The California statute at issue in California Federal Savings and Loan Association v. Guerra (“Cal. Fed.”) did exactly that.[70] The California law required employers to provide up to four months of leave for pregnancy-related conditions, but did not require any comparable leave for men.[71] A California employer challenged the law on sex discrimination grounds.[72] Feminists were famously split in this case, some arguing that the California law’s difference approach (allowing pregnant women to be treated differently than non-pregnant people) was more consistent with equality values and others arguing that a sameness approach (requiring men to get the same leave that women did) was what equality demanded.[73]
The Supreme Court sided with the difference approach, holding that California was free to treat pregnancy more generously than other conditions and finding that the PDA was “a floor. . . not a ceiling.”[74] The Court noted that the statute did “not reflect archaic or stereotypical notions about pregnancy or abilities of pregnant workers”[75] so concerns that had been waged against pregnancy regulation in the past—that they reflected stereotypes about women as workers—were not persuasive.
The Court’s interpretation of the PDA in Cal. Fed. adopts a difference approach rooted in physiology.[76] The Court reasoned that California could conclude that pregnant employees needed different treatment because of the “actual physical disability” that pregnancy creates.[77] The statute was designed to help and protect women who got pregnant,[78] despite the fact that this inevitably involved giving women a form of help and protection that men did not get.
Like any approach that roots itself in a distinction based on difference, this distinct treatment can easily foment stereotypes. Indeed, the Court’s willingness to highlight “actual physical” differences between pregnant people and non-pregnant people made many (sameness) feminists nervous.[79] If women could be treated differently, even if better, just because they got pregnant, where else might they be treated differently and possibly worse?
The sameness feminists mobilized in Congress, working toward passing comprehensive non-gendered parental leave legislation, what eventually became the Family and Medical Leave Act (“FMLA”).[80] The FMLA guarantees twelve weeks of unpaid medical leave to care for oneself or other family members.[81] It is available to all workers who have been employed by an employer for at least 1,250 hours over the preceding year if the employer has fifty or more employees.[82] The FMLA makes no distinction between men and women, nor does it include any special treatment for pregnancy.[83] As far as the FMLA is concerned, pregnancy must be treated as advocates had argued it must be treated in Struck, just like all other disabilities.[84]
The intersection between the FMLA and sex equality featured prominently in what is probably the most important Supreme Court case interpreting the FMLA, Nevada v. Hibbs.[85] Mr. Hibbs, a state of Nevada employee who needed leave to care for his ill wife, sued the state for damages because it refused to grant him FMLA leave.[86] In an opinion by Justice Rehnquist, the Court endorsed the view that the FMLA is a sex equality statute, passed pursuant to Congress’ power under Section 5 of the Equal Protection Clause to draft legislation enforcing the Clause’s equality mandate.[87] This meant Mr. Hibbs was entitled to damages.[88] Justice Rehnquist emphasized the need to combat “stereotypes about women’s domestic roles” and “parallel stereotypes presuming a lack of domestic responsibilities for men.”[89] “Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees.”[90]
Hibbs is a very different opinion than Cal. Fed., and one that enshrines the principle that those primarily concerned with sameness want to enshrine: the law must not make distinctions between men and women.[91] Hibbs provides a ringing endorsement of a statute that treats pregnancy, and those that endure it, just like any other medical need any employee may have. Indeed, to the extent that the FMLA treats parents who gestate and those who don’t identically,[92] one could argue that the FMLA encourages employers to treat those who gestate worse. Gestators have significant physical impairments that other parents do not have. These include the physiological burdens of gestation, the physiological burdens of childbirth, whether delivery was vaginal or surgical, and the physiological burdens associated with the body’s hormonal adjustments to enable breastfeeding.[93] Most gestators in the United States today, a class that is almost entirely women, have to use their FMLA leave to recover from these conditions, conditions that non-gestator parents never endure.[94]
The sameness approach embodied in the FMLA came with costs. Those who were part of the effort to pass the law generally agree that if the bill had been limited to twelve weeks of leave only for those who gave birth (a difference approach), it would have passed a decade earlier.[95] A bill that was less focused on identical treatment of men and women might also have carved out pregnancy as a physiological condition that does not necessarily have anything to do with the leave one needs as a parent.[96] Such a carve out might have also made it more feasible for pregnancy leave to be paid. Professor Julie Suk argues that many advocates involved in advancing the FMLA were not “able to imagine the expansion of family leave without an equivalent expansion of medical leave.”[97] This lack of imagination likely stemmed from the history of conflating pregnancy with disability, first proposed in Struck and adopted in the PDA, or from their insistence on identical treatment for men and women.[98]
It is worth underscoring that no other country in the world conflates pregnancy, parental leave, and medical leave the way the FMLA’s sameness approach demands.[99] As Part III will detail, in the rest of the world, pregnancy and childbirth are treated differently than parental leave, and parental leave is treated differently than other medical leave. The conflation of pregnancy, parental, and medical leave in the FMLA is a direct result of those who insisted that reproductive labor not be treated as something special or uniquely entitled to social support.[100]
To be clear, the FMLA did not usurp the PDA. The PDA still did important anti-discrimination work.[101] It protected employees from adverse employment actions while they were pregnant and working.[102] Studies indicate that pregnancy discrimination is fairly rampant worldwide and includes practices that would clearly be violations of the PDA in this country.[103] But the PDA provided protection for pregnant workers only to the extent that the employer already covered comparable disabilities.[104] The more distinct pregnancy’s limitations were, the harder it was to find a comparable disability.[105] Thus, the way to protect pregnant employees was to push the boundaries of disability law, not equality law. Many advocates therefore focused their energy on expanding the kinds of disabilities that had to be covered under the Americans with Disabilities Act (“ADA”),[106] rather than changing the PDA itself. This made some scholars question whether there was anything “to be gained by continuing to fight these battles” under the equality framework in the PDA, or instead channel energies “into theorizing and interpreting the ADA.”[107]
The most recent Congressional foray into this area helps allay that concern. In the Pregnant Workers’ Fairness Act, passed in January of 2023, Congress clarified that employers have an affirmative duty, under Title VII and the PDA, to provide reasonable accommodations for pregnant employees.[108] The bill incorporates the ADA’s definitions of “reasonable accommodation” and “undue hardship,”[109] into Title VII’s prohibition on pregnancy discrimination, but it makes clear that physical or mental conditions arising out of pregnancy deserve accommodation because they arise out of pregnancy not because they meet the ADA’s definition of disability.[110] Like the PDA, the PWFA delegates enforcement responsibility to the EEOC.[111] It re-inscribes the idea that pregnancy discrimination is sex discrimination,[112] but it does not explain why. In doing so, the PWFA takes a step in the direction of a difference approach to sex equality by conceptualizing pregnancy as something distinct, deserving of accommodation regardless of whether it is like other disabilities.
When first asked to confront the question of whether pregnancy discrimination was sex discrimination, the Supreme Court said no because it was pregnancy, not sex or gender, that the law was treating differently.[113] There was no sex discrimination problem because men and women were treated the same with regard to pregnancy and the Constitution did not require any special accommodation of pregnancy.[114]
Congress responded by declaring that pregnancy discrimination was sex discrimination and instructed courts to evaluate it as such by comparing pregnancy to other disabilities.[115] This switched the comparators from women and men to pregnant people and other temporarily impaired workers.[116] Men as a class were not relevant in the comparison.[117] By leaving men out of the discrimination question, the PDA thus allowed states and employers to treat pregnancy “better” than other disabilities without worrying about sex discrimination.[118] Concerned about this approach, those concerned about sameness lobbied hard for a federal parental leave policy—the FMLA—that emphasizes sameness, arguably at the expense of recognizing the distinct needs that gestators have.[119] The PWFA tempers that sameness approach somewhat, by singling pregnancy out as a unique disability, one that does not necessarily meet the ADA’s definition of disability.[120]
The contemporary approach to women and sports is best understood against a historical backdrop. Just as the early twentieth century saw tension between difference and sameness feminists with regard to how women should be treated in the workplace, there was a sameness/difference debate about what to do with women’s sports during the first seventy years of the twentieth century.
In the late 1800s, colleges introduced competitive sports for women.[121] For several decades, these school-based teams grew alongside industrial and amateur leagues, as well as high school and municipal leagues that fielded women’s basketball, baseball, softball, and track and field teams.[122] Different constituencies tended to focus on different sports. Women’s basketball thrived in more rural areas, like Arkansas, Tennessee, Texas, and Iowa.[123] Track and Field attracted Black women in both rural and urban communities.[124] Team sports, with their emphasis on both physical and emotional intensity among women, became a natural haven for lesbians, especially in the working class, given constrained work options and adult paths that assumed heterosexual marriage.[125]
For many women reformers, especially those who might identify as difference feminists or maternalists, this growing acceptance of women playing sports like men made them nervous.[126] They repeatedly cautioned against the potentially harmful effects of masculinization, commercialization, and excessive competition for women.[127] Women physical education instructors, a small but dedicated group of professional women, had a distinct personal interest in ensuring that women’s sports be treated differently.[128] If women’s sports were not that different than men’s sports, then women’s sports might no longer need the women who had professionalized women’s sports instruction.[129] As historian Susan Cahn suggests, these reformers came to define women’s sports as those that were “not boy like.”[130] It was this coalition of women who either believed in or whose livelihood depended on the idea of “women’s difference” who worked to ensure that women’s sports were different.[131]
These reformers pushed an inclusive but decidedly non-competitive approach to women’s sports in college.[132] Contrary to the “cut” environment of traditional team sports, the women’s approach championed “A Sport for Every Girl and a Girl for Every Sport.”[133] These efforts included practices like “Play Days” at women’s colleges.[134] At Play Days, women from different colleges would come together, and individuals would be assigned to teams randomly, with women from each college on every team, thus diminishing the chances for rivalry.[135]
Throughout much of the first part of the twentieth century, these reformers tussled with the amateur and industrial leagues that continued to field popular women’s teams.[136] The reformers had the most success at the elite college level.[137] By 1945, only 16-17% of colleges had intercollegiate varsity sports for women.[138] Eighteen states had eliminated state tournaments for high school girls which, combined with the states that never had them, meant that thirty-six states had none.[139]
Amateur and industrial leagues began to suffer for other reasons. Television became the recreation of choice for many households, thus diminishing interest in spectating at local sporting events.[140] Women left the industrial workforce in droves after World War II.[141] Young men were no longer being drafted into the army and were available to play the sports that women had played in their absence.[142] Men were also going to college in huge numbers and playing sports there.[143]
With the amateur and industrial leagues in decline, the interest and acceptance of more competitive college sports programs for women began to grow.[144] In the 1960s, movements for equality of all different kinds gathered steam across the country and both women athletes and new instructors pushed for greater athletic opportunity for women athletes.[145] If women were to continue athletic pursuits, educational institutions were the place to do it.
In 1972, Congress passed Title IX of the Civil Rights Act. It states: “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 education program or activity receiving Federal financial assistance.”[146] The need for a separate sex discrimination act in education stemmed from initial resistance to including sex in Title VI’s prohibition on race discrimination in education.[147] That resistance came from some who were concerned that including sex would weaken protections based on race[148] and others who thought sex discrimination was sufficiently different from race discrimination to warrant different treatment.[149]
In the debate over whether to include sex in Title VI, proponents of doing so introduced considerable evidence of gender discrimination in education.[150] In 1969 many U.S. universities had quotas on the number of women who could be admitted.[151] In 1968, women received only 43.4% of Bachelor’s Degrees, 35.8% of Masters’ Degrees, 12.6% of Doctoral Degrees, and 4.6% of Professional Degrees.[152] This evidence introduced at the Title VI hearings may have eliminated the need to discuss the existence of sex discrimination when Title IX was introduced as a separate sex discrimination measure two years later. Congress adopted Title IX with little discussion and without any formal hearings or report.[153] It demanded sex equality in educational institutions without explaining what that might require.
If one measures Title IX’s progress through changes in the academic enrollment metrics just listed, Title IX has been an astounding success. Today, women earn 61% of Associate Degrees, 57% of Bachelor’s Degrees, 61% of Masters Degrees, and 54% of doctoral degrees.[154] The majority of U.S. medical and law school students are women, (50.5%[155] and 55.7%,[156] respectively) and 41% of top business school students are women.[157] Though there are still some particularly lucrative fields—Computer Science, Engineering and Physical Sciences—in which men significantly outnumber women,[158] the thorough integration of women into most academic programs has been remarkable.
It has also been mostly without controversy. There has been surprisingly little Title IX litigation involving academic programs. The ease and speed with which women were integrated into academic programs could indicate that Title IX was a reflection, not a cause, of the change that was coming to educational institutions. Perhaps most stakeholders—students, universities, parents, alumni, and the business and professional communities that hire those who graduate from higher educational institutions—were ready and eager to integrate academic programs on the basis of sex.
The same hypothesis could not hold true for women’s sports. The controversies surrounding the purpose and meaning of Title IX’s sports regulations suggest considerable disagreement about what antidiscrimination demands in the context of sports.[159] Congress delegated the job of defining antidiscrimination in sports to the agency charged with implementing federal education policy, which at that time was the Department of Health, Education and Welfare (“HEW”). HEW’s Title IX regulations required schools to “provide equal athletic opportunity for members of both sexes,” but suggested that schools could “sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”[160]
The Title IX sports regulations adopt a difference approach to sex equality. The regulations require schools to provide women with alternatives to men’s contact sports and alternatives for any “cut” sports in which one’s ability to join the team is based on competitive skill.[161] Perhaps HEW was concerned that a sameness approach that only allowed women to try out for men’s teams would not comply with the statute because women would, in practice, be “excluded from participation in” or “denied the benefits of”[162] sports programs because so few women would make the teams. Or perhaps HEW thought that a difference approach was compatible enough with Title IX’s antidiscrimination mandate and would likely be much more popular. Perhaps many people thought both.
Other provisions in Title IX suggest Congressional comfort with a difference approach to sex equality in education, in particular a separate-but-equal approach. As originally passed, Title IX included numerous exceptions for single sex activities (fraternities and sororities, Boys Scouts and Girl Scouts) and explicitly exempted private undergraduate schools and “any public institution of undergraduate higher education which is an institution that traditionally and continually has had a policy of admitting only students of one sex.”[163] As we will see, the Supreme Court has since held that treating men and women differently in some of the ways that Congress saw as compatible with sex equality is inconsistent with the Equal Protection Clause.[164]
With regard to athletics, HEW and its successor agency, the Department of Education (“DOE”), soon learned that a difference approach creates its own controversies.[165] If separate can be equal, what counts as equal enough? The answer to that question is what has generated most of the controversy, and hence most of the litigation, involving the Title IX regulations.[166] In 1979, DOE drafted a “Policy Initiative” that included a three part test to determine if a school was complying with what Title IX demanded.[167] An affirmative answer to any of these three prongs indicates compliance with Title IX: (1) Are the athletic opportunities provided for men and women provided in numbers “substantially proportional” to their respective enrollments?; (2) If there is a history of one sex being underrepresented, can the school show a continuing practice of program expansion for the underrepresented sex?; (3) Where one sex is underrepresented and there is little program expansion, have the “interests and abilities” of the underrepresented sex been “effectively accommodated?”[168]
Like the PDA, with its recurrent litigation challenging what accommodation of pregnancy requires, Title IX litigation has mostly revolved around what adequate accommodation of women athletes requires.[169] Both statutes attempt to combat sex discrimination by comparing those with bodies designed to gestate to something other than those with bodies designed to produce sperm.[170] With the PDA, the comparison was to a comparably disabled worker, not necessarily a man.[171] With Title IX, the comparison is to whether what is actually provided is appropriate in light of the “interests and abilities” of women at the school.[172]
In assessing whether schools’ have accurately gauged women’s interest and abilities, courts endorse the idea that “[e]qual opportunity to participate lies at the core of Title IX’s purpose.”[173] Providing that opportunity often requires increasing athletic options available to women. In practice, in an environment of limited resources, in order to make funds available for new women’s teams, schools eliminate men’s teams. No male plaintiffs or universities have succeeded in arguing that this preferencing of women’s teams over men’s teams violates either Title IX or the Equal Protection Clause, though a full Supreme Court has never addressed the issue.[174]
One Justice on the Supreme Court did have to address the question of whether Title IX’s treatment of women’s sports constituted impermissible sex discrimination.[175] The case was brought by a sixth grade girl named Karen O’Connor who was an excellent basketball player.[176] She challenged her school’s insistence that she play on the girls team, presenting expert evidence that she was as good as or better than an average high school sophomore girl basketball player or an eighth grade boy basketball player.[177] The District Court found that Karen would suffer if forced to play on a team with teammates who were “not equal or superior to her in ability.”[178] That holding was stayed pending appeal and Justice Stevens ruled on that stay petition in O’Connor v. Board of Education of School District 23.[179]
Applying a standard of review that was considerably less than exacting, Justice Stevens explained that “the question whether the discrimination is justified cannot depend entirely on whether the girls’ program will offer [the plaintiff] opportunities that are equal in all respects . . . The answer must depend on whether . . . the classification is reasonable in substantially all of its applications . . . .”[180] He noted that the school’s policy complied with what the agency regulations required, which was separate teams being available for both boys and girls.[181] The main reason Justice Stevens thought the regulations were reasonable was because if the school did not adopt a difference, gendered approach, “there would be a substantial risk that boys would dominate the girls’ programs and deny them an equal opportunity to compete in interscholastic events.”[182]
This adoption of the difference approach in women’s sports, like a difference approach to pregnancy, clearly runs the risk of exacerbating stereotypes. A separate-but-equal regime in sports implicitly suggests that women, on average, cannot compete with men, just as a statute that singles out pregnancy for special treatment suggests that women workers are more needy and more expensive to employ.[183] Moreover, Justice Stevens’ willingness to accept the injuries to both Ms. O’Connor, who was not allowed to play at her own level, and the less talented boys, who could not make the boys’ team but might well have been able to displace many sixth-grade girls, says something that has grown increasingly controversial. It suggests that antidiscrimination law may be comfortable with making laws around the average, not the exceptional, woman or man.[184] Justice Stevens upheld the stay in order to protect those average, less exceptional, girls who wanted to play basketball.[185]
The constitutional jurisprudence involving sex segregation in other educational contexts has been more concerned with protecting non-average men and women. For instance, a male plaintiff in Mississippi University for Women v. Hogan, decided two years after Justice Stevens endorsed the separate teams provision in the Title IX regulations, challenged the single-sex admission policy of a state nursing school.[186] In an opinion by Justice O’Connor (no relation to Karen), the Court struck down the single-sex admission policy.[187] Given the facial distinction based on sex, the Court applied a form of scrutiny that required an “exceedingly persuasive” justification, one “free of fixed notions concerning roles and abilities” of different genders.[188] “The State’s primary justification for [the policy was] . . . that it compensate[d] for discrimination against women and therefore constitute[d] educational affirmative action.”[189] The Court rejected that argument.[190] Citing data on how many women earned nursing baccalaureates in both Mississippi and the country as a whole, the Court found it more likely that the school’s “objective [was] to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior.”[191] That objective was “illegitimate.”[192] Notably, when confronted with an argument that the Court’s suspicion of stereotypes was inconsistent with Title IX’s approach to gender difference, the Court dismissed it with a cite to Marbury v. Madison and a recitation of the principle that it is the Court’s job to interpret what equality means under the Constitution.[193]
The citation of Marbury allowed the Hogan court to dismiss the tension between Title IX’s segregated approach to athletics and Mississippi’s partially segregated approach to nursing schools,[194] but it is possible to reconcile that tension. Hogan implies, but does not state, that the result might be different if Mississippi had opened a Science Technology, Engineering, and Math (“STEM”) academy for women.[195] The data on how many women go to nursing school was proof for the court that the sex distinction was not necessary.[196] In contrast, given the low percentages of women in the sciences, the affirmative action argument might be persuasive in the STEM context.[197]
That unstated assumption goes a ways toward reconciling Justice Steven’s endorsement of single sex sports teams under Title IX and the Court’s discomfort with traditionally gendered stereotypes that a women’s only nursing school exacerbates, but it relies heavily on data about what average women do, and it requires a deeply contextual approach to what equality might require.[198] In such an analysis, a great deal turns on a court’s assessment of what women, as a group, have traditionally done. If women have not traditionally participated in sports, then it is permissible to deny boys a place on a team in order to make sure that other girls have more opportunity.[199] If women have traditionally participated in nursing, then it is not permissible to deny a man an easier route to pursue that activity.[200]
That reliance on averages later seemed to make a majority of the Court nervous.[201] In what is widely viewed as the Supreme Court’s most important constitutional sex discrimination case to date, United States v. Virginia (“Virginia”), the Court expressed deep ambivalence about relying on assessments of what average women do or have done.[202] Virginia Military Institute (“VMI”) was a state-sponsored male only military school.[203] Plaintiffs challenged the exclusion of women and won, in large part because the Court found that “generalizations about ‘the way women are’ and estimates of what is appropriate for most women no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”[204] An expert for VMI had testified that “educational experiences must be designed ‘around the rule’ . . . ‘not around the exception.’”[205] But the Court held that VMI could not “constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords,” the right to enroll.[206]
It is almost impossible to square that language in Virginia with Justice Stevens’ defense of the Title IX regulations. After all, Karen O’Connor had the “will and capacity” to play on the boys team, but Title IX suggests she can be denied that training and the attendant opportunities.[207] Title IX endorses a separate but equal regime because what “hold[s] true for many, maybe even most” women is that they will not be able to compete as effectively against men.[208] Justice Stevens’ opinion condones suppressing the talents of the “exceptional” in order to encourage participation from “average” girls.[209]
There are a host of reasons why many women might not compete as effectively as men in traditional military exercises or in sports. Many of these reasons stem from feminine stereotypes with which most women are socialized.[210] These were the stereotypes that the Court in Virginia was most interested in dismantling.[211] But, just as gestation is not just a stereotype though it has stereotypes associated with it, neither are differences in strength, speed, and height just stereotypes. On average, going through puberty as one sex or the other affects one’s ability to compete in many military exercises and many sports.[212]
Consider the relationship between height and elite performance in sports. In many, many sports, height is an advantage. The average man in the United States is five to six inches taller than the average woman.[213] The average man in the NBA is eight inches taller than the average man[214] and the average woman in the WNBA is ten inches taller than the average woman.[215] This means the average man in the NBA is four to five inches taller than the average woman in the WNBA. In soccer, where height is less obviously important, the average professional woman player is five inches taller than the average woman and the average male professional soccer player is three inches taller than the average man, leaving the average professional woman soccer player still three inches shorter than the average professional male soccer player.
If antidiscrimination law needs to be made around the exception, not the average, then those statistics are irrelevant. After all, Isaiah Thomas, a man, was an NBA star at five foot nine inches.[216] The tallest woman in WNBA history, Margo Dydeck, was seven foot two inches, eight inches taller than the average professional man.[217] It is entirely likely that there are more girls like Karen O’Connor and women like Margo Dydek who could, if given the opportunity, compete effectively against men. Must those exceptional women be allowed or required to play with men? Arguably, sex segregation in sports forces those women to live with the stigma of “only” being women athletes.[218] If one allowed Dydeck to play in the men’s league, what of the injury to the man whom she would replace who, presumably, would not be allowed to play in the women’s league? Or should women’s leagues just disappear? Virginia’s protection of the exceptional woman and concern about stereotypes sits uncomfortably with how Title IX prioritizes opportunity for all women by demanding different treatment that can lead to stereotypes.
On further examination of the Virginia opinion, one sees the Court recognizing this tension. Both the structure of the entire opinion and some choice footnotes suggest that, fully understood, constitutional sex equality is capacious enough to take both a sameness and a difference approach, though the opinion is somewhat unclear on when a difference approach may be required.[219] Much of the Virginia opinion is devoted to detailing how the Women’s Institute for Leadership program provided by Mary Baldwin college, the all-female school that Virginia had offered as a “separate-but-equal” alternative to VMI, did not come close to actually being equal.[220] It was less well funded, had a significantly less distinguished faculty and much worse facilities.[221] To read Virginia as adopting a pure sameness approach is to read out the pages of the opinion devoted to showing why separate (difference) was not equal in this instance, not why separate (difference) is never equal.[222] In addition, the majority suggested that when women are admitted to VMI, there would need to be some adjustments to living facilities (for privacy purposes) and physicality requirements.[223] But if the Court was instructing VMI to adopt different physicality requirement for women than men, it was mandating a difference approach in the name of equality. If it was suggesting that different living quarters might be appropriate it was suggesting that there was something legitimate in different treatment. It was opening up the possibility for stereotypes about women’s weakness and need for protection from men to creep back in. Thus, the sameness/difference tension is reflected not just in the relationship of Title IX to the constitutional jurisprudence, but within the constitutional law itself.
The legal treatment of women’s sports played out differently than the legal treatment of pregnancy. It involved a different kind of sameness/difference debate,[224] though like pregnancy, the tension between sameness and difference is irrefutable. Those who argued for a sameness approach during much of the twentieth century were claiming that women should be able to play the same kind of sports as men, not that women should necessarily compete with men.[225] Those who emphasized women’s difference argued that women should be channeled into different kinds of athletic endeavors.[226]
Title IX represented a victory of sorts for the sameness argument, but only if one is willing to accept the legitimacy of difference. Title IX provided women with the opportunity to play the same sports as men by perpetuating the idea that women are different. Achieving that sameness came at what many see as a serious cost to the proliferation of stereotypes. Title IX expressly adopted a separate-but-equal regime that implicitly endorses the idea that women should not or cannot compete with men.[227] Courts have been accepting of that cost and willing to let individuals suffer injuries,[228] like those to women who want to compete directly with men and men whose teams get cut so as to make room for women’s teams, in the name of promoting opportunities for more average women.
Most of the legal battles described above took place in the latter part of the twentieth century. Cal. Fed. was decided in 1987;[229] Hibbs in 2003;[230] and Virginia in 1996.[231] Almost all of the litigation involving Title IX’s sports regulations took place in the 1990s.[232] The differing approaches to the sameness/difference question in the law of pregnancy and sports had stabilized into some kind of uneasy equilibrium mostly before the twenty-first century’s LGBTQ civil rights movement pushed anti-discrimination law in new directions.[233] This Part addresses how the law and practice described above would be impacted by recent developments in sex discrimination law that discourage accommodation of any physiological difference.
In Bostock v. Clayton County, the Supreme Court, relying primarily on a textual reading of the word “sex,” found that Title VII prohibited discrimination against “homosexuality and transgender status.”[234] One of the plaintiff’s in Bostock, Aimee Stephens, alleged that she was fired because she notified her employer that she was transitioning from male to female.[235] She argued that if the employer fired her based on that transition, the employer was discriminating against her on the basis of her sex.[236] Writing for the majority, Justice Gorsuch explained that treating homosexual and transgender individuals differently necessarily requires consideration of the term sex and is therefore facially discriminatory.[237] Neither non-discriminatory intent[238] nor comparable treatment for men and women with regard to their gender[239] can save an employer whose policy necessarily requires consideration of the term “sex.”
Professor Jessica Clarke has recently argued that Bostock’s “formal, sterile and individualistic” approach can “[expand] the reach of sex discrimination law to forms of gender inequality overlooked in the past.”[240] While careful not to endorse the Bostock method as the only or best approach to sex discrimination law,[241] Clarke suggests that by making “traditional and community standards irrelevant to . . . whether a practice ‘discriminates,’” a formal approach can avoid contextual evaluations that might blind courts to hetero and cisgender normativity.[242] A formal approach also avoids “sociological arguments about the nature of discrimination or feminist or other such normative theories”[243] that conservative judges can be especially wary of. Additionally, formal equality can avoid the comparator problem, so prevalent in our discussion in Part I, by simply asking whether a policy implicitly or explicitly categorizes on the basis of sex.
Professor Clarke offers a typology of formal tests that courts can use,[244] but for purposes of this article, her explication of explicit and implicit categorization is particularly important. Explicit classifications based on sex are easy to identify; single sex bathrooms and women’s sports are classic examples. Other examples include excluding women from jobs that might affect their fertility, as did the company in United Automobile Workers v. Johnson Controls, Inc. (“Johnson Controls”),[245] and excluding women from certain prison guard positions, as did the state in Dothard v. Rawlinson.[246] The Supreme Court struck down the policy in Johnson Controls, but upheld it in Dothard.[247] A robust anti-classification doctrine could strike down all policies that classified so explicitly on the basis of sex, or at least require a defendant to offer an exceedingly persuasive justification.[248]
Determining whether a policy implicitly classifies on the basis of sex is more complicated. According to Bostock, the question is whether a policy is “inextricably bound up with sex.”[249] Professor Clarke cites examples of lower court opinions overturning policies or acts that penalized people for tampon usage,[250] for having particularly large breasts,[251] and for having genitalia that did not comport with their driver’s license sex designation[252] as courts using the kind of implicit anti-classification approach endorsed by Justice Gorsuch in Bostock.[253] These courts used reliance on primary or secondary sex characteristics (menstruation, breast size, genitalia) as proof of facial discrimination. They did not rely on comparators.[254]
Professor Clarke acknowledges that this approach abandons or ignores the Supreme Court’s holding in Gilbert. Recall that in Gilbert, as in Geduldig, the Court found that pregnancy was not a trait inextricably bound up with sex.[255] The plaintiffs in Geduldig had argued that pregnancy is a “uniquely female condition . . . since it is based on a sex-lined characteristic.”[256] In his dissent in Gilbert, Justice Stevens voiced agreement with this idea when he wrote “[b]y definition” a rule that treats pregnancy differently “discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male.”[257] Professor Clarke suggests that Bostock and emerging case law relying on it reject the majority’s reasoning in Geduldig and Gilbert.[258]
Because Professor Clarke’s work focuses on Title VII not constitutional cases,[259] and because the PDA can be read to overrule both the result and reasoning in Gilbert,[260] the cases cited by Professor Clarke may indicate that, under Title VII, distinctions rooted in pregnancy constitute facial sex classifications from which findings of sex discrimination can be readily inferred. Thus, Title VII may treat decisions based on reproductive anatomy as a sex classification even if the Constitution does not.
This embrace of an anti-classification approach for purposes of Title VII leaves the legitimacy of a case like Cal. Fed. in some doubt. An anti-classification approach would suggest that the California statute at issue in Cal. Fed., which singled out a trait inevitably bound up with sex (pregnancy) for different treatment,[261] was suspect. This is the argument made by the employer and the sameness feminists in Cal. Fed., though a majority of the Court did not agree with it.[262] Just as important, in deciding that the PDA is a “a floor. . . [but] not a ceiling” on how employers could treat pregnancy, the Court in Cal. Fed. embraced a very non-formalistic methodology.[263] When the employer and sameness feminists argued in Cal. Fed. that the state statute requiring special treatment for pregnancy was facially discriminatory and that therefore any resort to legislative history was inappropriate,[264] the Court responded by quoting a racial affirmative action case, United Steelworkers v. Weber:[265] “It is a familiar rule that a thing may be within the letter of the statute and yet not within its spirit, nor within the intention of its makers.”[266]
The Cal. Fed. Court then went on to detail the legislative history of the PDA, which did not suggest any sex discrimination concerns with the special treatment of pregnancy,[267] and it quoted Justice Brennan’s dissent in Gilbert, which emphasized that “discrimination is a social phenomenon encased in a social context and therefore, unavoidably takes its meaning from the desired end products of the relevant legislative enactment . . . .”[268] The Cal. Fed. Court rejected a textualist approach and dived into a discussion of history, legislative intent and social context.[269] In tone and methodology, Justice Marshall’s opinion in Cal. Fed. could not be further than Justice Gorsuch’s opinion in Bostock. Both are Title VII cases. Which tone and methodology should control?
The embrace of a more formalist approach would continue to protect pregnant workers from being discriminated against while working. Pregnant workers must be accommodated as other workers are because pregnancy is a trait inextricably bound up with sex so they cannot be treated worse, but a formalist approach would endanger policies that would allow pregnant workers to be treated “better.” In Cal. Fed., the Court allowed pregnant workers to be treated better in part because it saw better treatment as a form of affirmative action.[270] Hence the cite to Weber. In Virginia, Justice Ginsburg did something comparable when she wrote that different treatment of women was acceptable in order “to compensate women ‘for particular economic disabilities [they have] suffered,’ [and] to ‘promot[e] equal employment opportunity . . . .’”[271] The Bostock methodology puts a remedial approach that acknowledges difference in jeopardy.[272]
As Part III will demonstrate, some U.S workplaces, disproportionately those populated by well-paid workers, provide more generous benefits for those who gestate.[273] They treat childbearing, a trait inextricably bound up with sex, differently,[274] just as the policy in Cal. Fed. did. A formalist approach endangers these policies and begs fundamental questions about the aims of discrimination law. If discrimination law is primarily concerned with empowering those who have been disempowered because of traits bound up with sex, then laws affecting pregnant employees should be floors not ceilings, and different treatment is permissible. If discrimination law is primarily concerned with eradicating, within the law, notions of differences between the sexes, then special treatment for pregnancy is particularly problematic. If discrimination law is concerned with both of those goals, then a court must do some sort of balancing of the benefits of different treatment against the costs of stereotypes.
* * *
With regard to segregated sports teams, it is even more difficult to square Bostock’s formal textualist approach with Title IX’s embrace of a separate-but-equal regime and its willingness to force opportunities for women at the expense of male athletes. Very early in the Bostock opinion, Justice Gorsuch makes clear that while an anti-discrimination statute might be designed to consider “how a policy affects one sex as a whole versus the other as a whole,” Title VII is not such a statute.[275] Relying on statutory text, the Court notes that the statute mentions the word “individual” three times, thus providing all the proof the Court needs that Title VII is concerned with individuals not groups.[276] There is no way that Justice Stevens’ protection of average girls at the expense of individuals like Karen O’Connor would pass muster under Title VII as the Court in Bostock interpreted it.[277] Again, we have a sameness/difference debate surfacing. A sameness approach allows the exceptional woman to compete with the men. A difference approach lumps genders together to empower the less exceptional.
Technically, one need not reconcile Title IX’s sports regulations with the opinion in Bostock because Bostock defines discrimination under Title VII, not Title IX, but a willingness to accept Justice Stevens approach to group-based discrimination and difference in Title IX and Justice Gorsuch’s approach to formality and sameness in Title VII, would leave the law with three distinct approaches to sex discrimination linked to reproductive anatomy. First, there is the Constitutional approach, as reflected in Geduldig, which rejects the idea that classifications based on pregnancy are sex discrimination.[278] Second, there is the contemporary Title VII approach, which according to Professor Clarke treats classifications based on traits like pregnancy as sex discrimination (and likely prevents employers from treating pregnant employees better than others).[279] Third, there is the Title IX approach, which allows “different” (and better) treatment based on reproductive biology if it provides women as a group with more opportunities to participate.[280] The perpetual tension around sameness and difference remains.
The other increasingly important approach to sex equality used by many LGBTQ plaintiffs has been anti-stereotyping.[281] Understanding sex discrimination as a problem of stereotypes helps prevent discrimination against LGBTQ individuals who fail to comply with gender stereotypes by not being cisgender or heterosexual.[282]
Professor Cary Franklin has argued that stereotyping was central to Ruth Bader Ginsburg’s theoretical understanding of what sex discrimination is and Franklin suggests anti-stereotyping has been central to courts’ findings that LGBTQ discrimination is sex discrimination.[283] Professor Courtney Cahill, in a recent featured article in the Yale Law Journal, takes anti-stereotyping theory even farther suggesting that “biologically rationalized sex discrimination is a sex stereotype – all the way down.”[284] Because men can now get pregnant, because children can be “born of” two people of the same sex, and because any classification based on sex “overgeneralizes about what male and female anatomy is,” there is simply nothing left of “real differences” between men and women.[285] Honoring the anti-stereotype principle (which Cahill refers to as “sex equality’s crown jewel”) means abandoning any notion of different treatment based on sex in constitutional law and under Title VII.[286]
Like the formal equality approach, the anti-stereotyping approach eliminates the need for comparators because the question is simply whether a gender stereotype is at the root of different treatment, not whether someone else would be treated the same way.[287] But an anti-stereotype approach differs from the formal equality approach in important ways. Recall that in endorsing a formal approach, Professor Clarke argued that courts are growing more willing to find an implicit classification based on sex if physiological traits are “inextricably bound up with sex.”[288] Professor Cahill suggests there is no such thing as being physiologically “inextricably bound up with sex.”[289] Indeed, one of the cases that Professor Clarke cites as proof that courts are willing to use the inextricably bound up with sex test, a case that required a finding that harassing someone because of their breast size was sex discrimination,[290] would be a case that fails under Professor Cahill’s interpretation of the jurisprudence. Cahill suggests that any judicial recognition of difference between men and women’s breasts reflects an unsupportable stereotype.[291] Treating men and women’s breasts as different, as would be required to find that making fun of someone’s breasts can constitute sex discrimination, just perpetuates stereotypes about gender difference.
A comprehensive anti-stereotyping approach would require changing existing laws, including laws surrounding pregnancy[292] and sports.[293] But it is not clear how such an approach would clarify how the law should ultimately treat differences rooted in primary and secondary sex characteristics. For instance, Professor Cahill argues that the law cannot provide benefits to “pregnant women but not men.”[294] To the extent she means that a law cannot treat pregnant women any better than pregnant men, this seems an uncontroversial statement and not one that will disrupt many existing practices. The term “pregnant woman” will need to change. “Pregnant women” will likely become “gestators” or “pregnant people.” But the question of whether to treat gestation itself as a sex discrimination issue will remain.
The recent naming of the Pregnant Worker’s Fairness Act suggests that Congress was concerned about sexist nomenclature—hence the term “Pregnant Workers”—but it still situated enforcement of the law in the EEOC and thus it still treats pregnancy discrimination as sex discrimination. Cahill lauds the bill for not “tethering pregnancy (or childbirth) to women specifically,”[295] but neither she nor Congress explain why pregnancy discrimination is sex discrimination. If the argument is that different treatment of pregnancy is always rooted in stereotype because it was rooted in stereotype in the past,[296] then the PDA and the PWFA are themselves sex discrimination because they suggest that pregnancy has something to do with sex.[297] Moreover, as the Court found in Cal. Fed., different treatment of pregnant people is not always rooted in stereotype.[298] Sometimes it is rooted in real, “actual physical disability.”[299] If that actual physical disability should not be tethered to sex or gender, shouldn’t sex simply be removed as a valid frame for thinking about pregnancy? Pregnancy discrimination can be analyzed, as it already partly is,[300] as a form of disability discrimination. Sex should have nothing to do with it.
That construction leaves gestators, a class that is overwhelmingly women, without any constitutional protection as gestators. This is, arguably, where they already are, given Geduldig,[301] but it also a proposition that is vigorously contested in the aftermath of Dobbs v. Jackson Women’s Health.[302] If women have a sex equality right to terminate pregnancies, it must have something to do with pregnancy being a condition that has something to do with women.[303]
More comprehensively with regard to stereotypes around parenting, it would be relatively easy to canvass federal and state codes with a “search and replace” instruction that would substitute the words “parent” for the words “mother” and “father” and “gestator” for “pregnant woman.” These semantic changes are not likely to resolve the sameness/difference tension. If the law were to eliminate all explicitly gendered terms, sex equality law would then be faced with what to do, if anything, with the fact that the vast majority of gestators are women. Cahill insists that sex equality law can brook no interest in the “vast majority” of anything because anti-discrimination must be concerned with the “law of one” not the “law of averages.”[304] But to suggest equality law has abandoned all reliance on the law of averages is to ignore the sameness/difference tension in Virginia, which condoned both allowing an exceptional woman to enter VMI (the law of one) and changing facilities and physicality requirements in order to accommodate (average) women’s desires and capabilities.[305] Rejecting any reliance on averages would also undermine policies like those at issue in Cal. Fed., which required leave based on what is appropriate for average gestators.[306]
Proponents of an anti-stereotype approach may not be arguing that relying on physiological differences is always a smokescreen for stereotypes, but only that any invocation of “real” differences as a justification for different treatment requires strict scrutiny.[307] Cahill suggests that such “scrutiny is [always] necessary in order to expose stereotypes.”[308] Franklin writes that “equal protection law should be particularly alert to the possibility of sex stereotyping in contexts where ‘real’ differences are involved because these are the contexts in which sex classifications have most often been used to perpetuate sex-based inequality.”[309] It is not clear that more scrutiny will get these scholars the results they think appropriate.
Consider one of the more controversial lines of “real differences” cases, those brought by genetic fathers arguing that equality demands that they be vested with the same rights at birth as genetic mothers who are also gestators.[310] In a string of cases, the Supreme Court held that mothers and fathers were differently situated at birth and therefore the state could treat them differently.[311] Many sex equality scholars, including Franklin and Cahill, express something like outrage at what they see as this insupportably sexist practice.[312] But stricter scrutiny of gestation and childbirth just brings into relief how physiology can explain why gestators and non-gestators acquire parental rights differently and why genetics should not necessarily root parental status determinations.[313] With more scrutiny, the Court would see that the idea of rooting fatherhood in genetics, not marriage, started with a Papal edict in the thirteenth century that was primarily concerned with easing financial burdens on local parishes that otherwise had to support children born to unwed mothers.[314] The edict had the added benefit, from the Church’s perspective, of discouraging extramarital sex.[315] Saving money and discouraging extramarital sex are not likely to register as particularly important governmental interests under a strict scrutiny approach. Moreover, because it was almost impossible to prove genetic connection until the advent of genetic testing, as an historical matter and in practice, genetics only very rarely determined fatherhood.[316]
Rooting motherhood in gestation has a much more stable history. Until it became possible to sever gestation from sexual reproduction in the 1990s, motherhood had never been rooted in anything else.[317] Rewarding gestation, because of the unique (different) investment the gestator makes in producing a child, might well register as a particularly valid state interest. Rooting parenthood in gestation rewards the work that gestators do, though it also, inevitably, runs the risk of exacerbating maternalist stereotypes about women because it will be (overwhelmingly but not exclusively) women who will benefit from the law recognizing the importance of gestation.[318] The harms from those stereotypes must be balanced against the harms of discounting—as constitutionally irrelevant—the work that gestators do.
A complete discounting of the relevance of gestation so as to minimize stereotypes surrounding motherhood would also just perpetuate another sexist stereotype: that the work women do within families and for their children is a labor of love in no need of recognition or compensation.[319] Why is it that the extraordinary burdens of gestation, burdens that have until exceedingly recently been borne exclusively by women, can be ignored as irrelevant to questions of parenthood?[320] Strict scrutiny would require a court to consider all of these interests. It would not provide an obvious answer. There is little reason to think that applying strict scrutiny will eliminate the need to address the relative advantages and disadvantages of recognizing physiological difference.
* * *
With regard to sports, Cahill and others argue that sex distinctions in sports should mostly be eliminated, though they often concede that “there might be good reasons to sustain sex separatism” for “[s]ports in which testosterone provides an advantage.”[321] Testosterone provides an advantage in many, many sports.[322] And, if testosterone levels can justify a sex distinction in those sports,[323] why should an ability to gestate not justify a sex distinction in other contexts? After all, it is the same physiological process, puberty, that either creates (in over 98% of people) an ability to produce a lot of testosterone or an ability to gestate.[324] What an anti-stereotype proposal seems to demand is that sports be divided not by sex, but by testosterone level or other secondary sex characteristics that serve as physical markers of certain kinds of athletic competitiveness.[325] A physiological marker like that untethers sports from sex classifications, just as Cahill argues pregnancy should be untethered from sex.
Others have made this proposal.[326] Basketball teams could be chosen based on height and strength tests. Soccer teams could be chosen based on speed and perhaps height and strength. Crew teams could be chosen based only on weight, not, as they traditionally have been, on weight only after a gender distinction has been made (i.e., men’s and women’s heavyweight, men’s and women’s lightweight). As Professor Patrick Shin has observed, though, “any new technical classification system, whatever the chosen criteria or metrics, could be publicly perceived as a veiled proxy for, or even just a relabeling of, the traditional categories of male and female or man and woman.”[327]
Just as a world in which all references to mother, father, maternity, paternity and pregnant woman are struck in favor of gender neutral terms will likely be a world in which gendered stereotypes remain because the vast majority of gestators will still be women, and just as the law would then be pressed to decide whether distinctions based on pregnancy are necessary or even consistent with sex discrimination law, so a world without explicitly gendered sports teams would likely be a world in which gendered stereotypes with regard to physical ability would remain. The law would then be pressed to decide whether separate programs for shorter, weaker and slower people should be allowed or required. If a school was strapped for resources and decided to fund only the most popular or most “testosterone-determinative” sports, would that present a sex discrimination problem? It was precisely in those situations—when schools tried to prioritize the most testosterone determinative sports—that Title IX forged the most change.[328]
Finally, it is worth noting that eliminating sex segregation in sports is emphatically not the result that most of the trans athletes that are fighting to compete in college and high school sports are asking for.[329] Those athletes are fighting to participate in the sport of their self-identified gender and fighting the gender-neutral, physical markers (testosterone level, etc.) that would likely replace sex as the way to categorize different sports.[330] Cahill acknowledges this when she says that “certain aspects of LGBTQ equality reinforce rather than challenge real differences.”[331]
This article is agnostic on where sports should draw the physiological line that might define sex in sports, but unless the law tolerates the idea of accepting some physiological definition of “women” and “men” in sports, there is no reason other than stereotype for having men’s and women’s teams. If subjective gender-identity, not “real difference,” is what determines which team one plays on, then a socially constructed notion of gender is the only reason to make distinctions. Maintaining separate teams in a world in which gender is untethered from physiology would serve no purpose other than to perpetuate sex stereotypes.
Both formal equality and anti-stereotyping theory have considerable power to push sex equality law in directions that can be and have proved important to sexual minorities. But applying these methodologies to the problems raised by pregnancy and sports is either unlikely to resolve the sameness/difference tension, or resolve it in a manner that will strike so many people as inconsistent with beliefs in women’s empowerment that the resolution will be short-lived. Equality law has often pushed boundaries in ways that disrupt understandings of “normal” and “equal,” but precisely because the problems presented by pregnancy and sports are rooted not just in stereotype, but in physiological processes that will continue to produce primary and secondary sex characteristics no matter what the law does, there are limits to what the law can transform. And there are hard normative questions surrounding what the law should transform.
Even if primary and secondary sex characteristics are not as perfectly bimodally distributed as once thought and even if those sex characteristics are also saturated with gendered stereotypes, what the law should do about the mostly bimodal distribution of sex characteristics in the workplace and in sports are questions that have no easy answers. Accommodating, by recognizing the particular challenges for those who have bodies that are able to gestate, will inevitably perpetuate stereotypes about those who gestate.[332] Refusing to accommodate those particular challenges will leave those with bodies that are different than the male norms—around which both the workplace and sports were constructed—at a considerable disadvantage. Recognizing physiological differences perpetuates stereotypes. Refusing to recognize physiological differences perpetuates disadvantage. That is the sameness/difference tension in a nutshell. Sex equality law’s job may not be to resolve that tension so much as to continue to conduct contextual balancing of the advantages and disadvantages of acknowledging difference.
This Part draws on empirical evidence from the United States and much of the rest of the world to suggest that the contemporary skepticism of the difference approach in American sex equality law may not adequately acknowledge the advantages that can come from recognizing difference.
As mentioned, only one other country in the world (Papua New Guinea) fails to guarantee some form of paid leave for workers who give birth.[333] The sameness approach exemplified in the FMLA did nothing to encourage paid coverage for childbirth and may even have discouraged employers from offering it. The number of employers offering paid childbirth leave fell from 27% to 16% between 1996, when the FMLA was passed, and 2008.[334] A January 2019 report from the Bureau of Labor Statistics suggests that as of 2017, that percentage had fallen further to 15%.[335] According to the latest Bureau of Labor Statistics report, this leaves only approximately 25% of all civilian workers with access to paid family leave.[336] That quarter of the civilian workforce with paid leave is disproportionately likely to be composed of high-income earners.[337] Roughly 36% of workers classified as working in Management, Professional or related fields have access to paid leave.[338] Only 14% of those working in Production, Transportation and Moving have access to paid leave, even less than the 16% of workers in the service industry who have it.[339] The more high-wage workers a firm has, the more likely that firm is to provide paid parental leave.[340] Only 23% of firms with few high-wage workers provided paid leave, compared to 41% of firms with many high-wage earners.[341] Those who need paid leave because they cannot afford unpaid time off do not get it; those who have enough of a financial cushion, either through savings or with combined household income, are most likely to have access to paid parental leave.[342] The gap between the percentage of high earners and low earners with access to paid family leave is growing.[343] Thus, in practice, paid leave policy in the United States is strikingly regressive.[344]
When U.S. firms provide paid leave, they usually do so in a manner that treats gestators differently than non-gestators.[345] EEOC guidance on the PDA allows employers to give more maternity than paternity leave as long as the employer distinguishes between “leave related to the physical limitations imposed by pregnancy and child-birth” and “leave for purposes of bonding with a child.”[346] Most generous paid leave policies do exactly that.[347] In a survey of ninety-seven law firms by Chambers Associates, the average paid maternity leave was sixteen weeks; the average paid paternity policy was five weeks.[348] These discrepancies between maternity and paternity leave are only not sex discrimination if the maternity leave is designed to cover childbirth in addition to parental bonding leave.[349]
The United States’ classed access to explicitly gendered paid leave policies is perhaps ironic, but it also says something about what sex equality may mean. As a group, affluent professionals affirm more belief in gender egalitarianism than most members of the middle and working class, but, as a group, they are also the ones most likely to enjoy the benefits of gendered paid leave policies.[350] Conventional wisdom within elite industry suggests that generous maternity leave policies are necessary to retain top talent.[351] If it is private markets and the need to retain top talent that motivates employers to offer gendered paid leave even though the law does not compel them to, the data suggest that those with the highest acceptance of gender egalitarianism demand a difference approach.
The rejection of this difference approach in the FMLA leaves gestators without a caretaking partner particularly vulnerable. In order to foster the degendering of caretaking, the FMLA sacrifices whatever good may come from paid, but gendered, leave at birth. For gestators who take primary, if not exclusive, responsibility for their children, this sacrifice does no good. She gets paid nothing so that the law can encourage a partner to take leave, but she has no partner who will take leave. Forty percent of children in the United States are born to unmarried mothers, and while many of the genetic fathers of these children willingly accept legal responsibility as fathers, many of them are not prepared to or do not want to invest significantly in caretaking.[352] Unmarried fathers are particularly unlikely to trade off income for caretaking, even if they felt they could afford to.[353] Gestators, to their economic detriment, almost always make that trade-off and take considerably more unpaid leave than non-gestators.[354]
The rest of the world treats pregnancy differently. Approximately 72% of countries for which there is information available mandate compulsory leave for the gestator before or after childbirth.[355] All EU countries require women to take at least two (paid) weeks of leave after giving birth.[356] In the United States today, these mandatory leave policies might well be construed as impermissible sex discrimination.[357]
As in the U.S. with firms that offer paid leave, other countries often treat childbirth leave and parental leave as one for the gestator, but the gestator invariably gets more leave than a non-gestator. Sixty-two percent of countries that provide paid maternity leave provide at least six weeks of benefits.[358] Only 4% of the 185 countries surveyed by the International Labour Organization provide paid paternity leave of more than two weeks, and 21% of those 185 countries provide less than one week of paid paternity leave.[359] Thus, in the rest of the world, childbirth is often treated as distinct from parental leave; when it is not and even often when it is, maternity leave is treated more generously than paternity leave, and neither childbirth nor parental leave are considered medical leave.
This is not to say that the rest of the world is completely sanguine about potential stereotypes that may be fostered by these explicitly gendered leave policies. Sweden has been particularly innovative in trying to encourage fathers to take more childcare leave.[360] Initially, fathers (or other non-gestator parents) are entitled to ten days of birth leave when the child is born.[361] This is for the express purpose of supporting the gestator.[362] After the childbearing leave, both parents are eligible for up to eight months of parental leave at 77.6% of their former earnings.[363] One parent can transfer all but ninety days of their parental leave to the other parent.[364] The ninety day non-transferrable provision was designed to encourage men to take more leave.[365] If fathers do not take their nontransferable leave, the family loses it.[366] Other countries have also instituted what are known as “daddy quotas.”[367]
Sweden is a particularly important comparator for the U.S. because, as Professor Franklin has documented, Ruth Bader Ginsburg—the architect of the United States’ constitutional approach to gender equality—was heavily influenced by Swedish programs.[368] Her litigation strategy grew out of her attempt to import Sweden’s distrust of gender stereotypes into the American legal system.[369] She succeeded in importing that deep distrust of stereotypes, but in the United States today, leave-taking is more gendered than it is in Sweden. Seventy percent of the fathers who take paternity leave in the United States take less than ten days, and that includes time taken just after the child is born.[370] Men take three times less FMLA leave at birth than women do.[371] In Sweden, men take one-half, not one-third of the leave that women take[372] and 90% of men take parental leave in addition to the ten days they are entitled to when the child is born.[373]
A foil Ginsburg may not have contemplated is how her vision for equality might play out differently in a country with far less comfort with social insurance programs. The Swedish social welfare system is one of the most generous in the world.[374] Sweden got men to take more leave by building up a social insurance program that could pay them—a lot—to do so.[375] Robust welfare states can respond to calls for sameness treatment by ratcheting up: rewarding those who have not received or taken a benefit with the same benefits others get. Less generous countries, like the United States, often respond by ratcheting down. In our case, we pay mothers as little as we pay fathers.[376]
Other countries are less concerned with gendered stereotypes. As Professor Suk has explored, France has a particularly generous, but particularly gendered, parental leave policy.[377] Suk suggests that the greater acceptance of gendered policies around birth and childcare policies in Europe may stem from historical beliefs in the importance to the state of protecting women and children.[378] Women in France get up to sixteen weeks of paid leave.[379] Men get approximately two weeks.[380]
What is perhaps most surprising given these varied approaches to leave is how little difference they seem to make to women’s equal stature in the paid workforce. In general, the U.S. ranks with most other developed countries in terms of female labor participation rates.[381] In 2019, the female employment-to-population ratio in Sweden, the UK, Canada, and Australia were all higher than the United States, though lower in other developed countries with generous leave policies like Germany, Denmark, Austria, and France.[382] The gender wage gap is higher in the United States than it is in most other developed countries.[383]
In terms of hours devoted to unpaid household work (including caretaking), women in the United States perform 60% more unpaid work than men,[384] which is less than women in Germany, the UK, and France, who spent 70 to 90% more time than their male partners performing unpaid work, but more than women in Canada (50%), Sweden (49%) and Denmark (30%).[385]
In terms of female representation in management roles, on average, 35.3% of managers in the EU are female compared to almost 41% in the United States, though in France, with particularly gendered patterns of leave, the percentage of women managers is 38.3% and in Sweden, it is 43.8%.[386] Again, though the data shows some variation between countries, the notable finding is how little difference the United States’ unique non-gendered approach to parental leave seems to make.[387]
Scholars have spent considerable time trying to discern why these gendered patterns persist and which parental leave policies best facilitate women’s full participation in the paid labor force. Studies indicate that women with paid leave have higher rates of return to work after childbirth than women with only unpaid leave,[388] though in the United States this finding may be impacted by the fact that the women who are most likely to have access to paid leave are the ones with the highest earning jobs and likely the best access to childcare.[389] Studies also suggest that long leaves (more than forty weeks) re-enforce gendered division of labor,[390] though these studies are over twenty years old and recent data for the EU suggests that the countries with longer leaves do not necessarily have more gendered divisions of labor.[391] Despite economists’ concerns that guaranteed leaves decrease women’s wages, data suggests that leaves of up to six months have no effect on wages.[392] Two studies suggest that mandatory leave policies tend to channel women into less lucrative employment, but other researchers have questioned those conclusions.[393]
Two other findings seem less controversial, though they both have clear implications for U.S. policy. First, no country has made a sizable dent in the “motherhood penalty” that continues to show mothers making less than fathers.[394] Given how little difference childbirth and parental leave policies seem to have on women’s labor force participation rates, it is perfectly possible that the bulk of the motherhood penalty stems from gendered patterns regarding how parents balance work and family while their children grow.[395] Many studies confirm that men feel more strongly about their attachment to the workforce than women do.[396] Attacking what Joan Williams refers to as the “ideal worker” norm[397] and disrupting the masculinity norms that tie men’s identity to work may be more important than disrupting gendered patterns of leave at birth.
Second, fathers are unlikely to take more than a few days of leave unless it is paid.[398] Gestators take leave regardless of whether it is paid.[399] This means that the FMLA’s insistence on gender neutrality in the name of equality does almost no good. At the lower end of the income scale, where the FMLA is the only protection available, gendered patterns continue because non-gestator parents are unwilling or unable[400] to sacrifice pay for time with a child,[401] though gestators almost always make that sacrifice.[402] At the higher end of the income scale, employers offer paid leave because coveted employees seem to demand it,[403] but that leave, unlike the FMLA, treats gestators differently than other parents.[404]
Respecting difference and treating child bearers more generously than other parents, as the rest of the world and elite firms in the United States do, appears to have no discernible effect on gendered caretaking patterns later in the child’s life or on the ideal worker norm that helps perpetuate those gendered patterns.
Title IX’s adoption of a difference approach has made an indisputable impact on the world of sports. In 1972, when Title IX was passed, fewer than 300,000 girls were involved in High School athletics and only 30,000 played organized sports in college.[405] A typical Midwestern Big 10 university spent at a ratio of 1300 to 1 on men’s and women’s sports.[406] Secondary schools were often similarly lopsided in their funding.[407] The Syracuse New York public school system spent $90,000 on boys teams and $200 on girls teams.[408] Within forty years of Title IX’s passage, by 2012, 3.2 million girls played high school sports and 190,000 played sports in college.[409] By 2015, women made up 51% of Division 1 athletes and received 45% of athletic opportunities and 42% of scholarships.[410]
The litigation around Title IX sports suggests that the substantial and rapid increase in women’s participation would not have come as quickly or emphatically as it did without Title IX’s legal mandates.[411] In 2012, when 44% of the U.S. Olympic team was female, the press referred to that class of athletes as “Team Title IX.”[412] These were women who were introduced to high school and college sports after most of the legal battles on behalf of women athletes under Title IX had already been won.[413]
Title IX led to “an indisputable sense of female entitlement” and “ripple effects that extend to municipal and recreational sports, elite amateur athletics and professional sports.”[414] Despite or because of Title IX’s embrace of difference, both men and women believe that Title IX has had a positive impact on gender equality.[415] Over 60% of respondents to one Pew poll said that funding for men’s and women’s sports should be roughly equal, not based on the money brought in by the team.[416] Eliminating Title IX’s difference approach to sports would make it much more likely that funding would be tied to money brought in by the team, not abstract principles of sex equality based on difference.[417]
As girls began playing more competitive sports, scholars started researching the potential costs and benefits of treating girls sports differently. Studies from Europe find that girls’ participation in sports tends to be lower than boys at all levels, even when girls have physical advantages over boys before male puberty.[418] Once puberty hits for boys, girls’ participation in coeducational physical activities drops off significantly.[419] This is particularly important because studies also indicate that beliefs about ability influence participation rates.[420] Young people need to believe that incremental improvement can help them compete, and incremental improvement is more likely to make a difference if the gap between the least and best players is not so significant.[421] On average, differences in talent and ability are greater between boys and girls than within gender groups.[422] Studies also indicate that women in single-sex environments tend to be less risk averse.[423] Competitive sports often involves taking risk.[424]
These studies suggest that there are gendered socialization processes that compound physiological differences between men and women in sports.[425] Girls are taught that they are not as athletic or as able to compete with boys even before puberty hits, and then once puberty hits, that previously false maxim is supported by physiological changes.[426] By embracing difference, Title IX works to counteract that socialization process by placing girls in environments in which they need not worry about whether they are as good as the boys and they can be encouraged to take risks that gendered socialization practices have kept them from taking.[427]
For girls that play team sports, overcoming those socialization practices may be particularly beneficial.[428] A study of ethnically diverse urban adolescent girls in the U.S. found that achievement in team sports was a more solid predictor of global self-esteem for girls than was achievement in individual sports.[429] Team dynamics help undermine other impediments with which girls are socialized.[430] Girls and women are more likely than boys and men to engage in exclusionary practices within the team, making team cohesion more of a problem for women’s teams.[431] Winning requires that cohesion, so striving to win on a women’s team may mean overcoming socialized tendencies to be suspicious of bonding with their team.[432]
In general, there is considerable evidence that playing any sport, whether team or not, is beneficial to girls and women. One U.S. business school study indicates that more than half of top female executives are college athletes.[433] Girls who play high school sports are 14% more likely to think they are smart enough to achieve what they want in their life, 16% less likely to want to change their appearance, 17% less likely to believe that men are better leaders, and almost 30% less likely to believe that they are bad at math and science.[434] Black and Hispanic female athletes are more likely than are White female athletes to say that their participation in sports had a very positive impact on their confidence and self-esteem and more likely than White athletes to say sports had a very positive impact on their job opportunities.[435] These statistics indicate that the benefits to playing organized sports for girls may be substantial, perhaps substantial enough to treat increased participation for average girls as more important than individual injury to exceptional girls, just as Justice Stevens did in Karen O’Connor’s case.[436]
The studies regarding risk aversion and team bonding also suggest that Title IX may be serving a remedial purpose correlated to but not rooted in physiological difference. If Title IX is working to overcome stereotypes about risk aversion and team bonding, stereotypes that inhibit girls’ ability to become full economic, social and political citizens regardless of how fast, strong and tall they are, then a sex equality law concerned with combatting stereotypes must weigh not only the benefits of acknowledging difference against the costs of stereotypes but the ability of different treatment to combat not just exacerbate stereotypes.[437]
All those benefits notwithstanding, there is compelling evidence that organizations take advantage of gendered stereotypes to the disadvantage of women athletes when they can. Professional women’s soccer and basketball leagues are two examples. In both cases, when the leagues started, women players received a lower percentage of league revenue than men.[438] The U.S. women’s soccer team sued to change that, and won, or at least negotiated a settlement in which they would get a comparable share of revenue as the men.[439] WNBA players have recently reached a collective bargaining agreement that grants them a considerably larger share of revenue than they had previously.[440]
The National Collegiate Athletic Association (“NCAA”) has been comparably guilty of treating women athletes worse than male athletes for no justifiable reason. For years, despite the growing popularity of women’s college basketball, the NCAA would not let the women’s teams use “March Madness” branding, though they have now changed that policy.[441] When a college women’s basketball player made a video of the difference in size and quality between the men and women’s weight lifting facilities at the March tournament in 2021, it went viral.[442] But it may have gone viral because there was an expectation, created by Title IX’s difference approach, that investment in men’s and women’s teams should be comparable. Query whether if it was a video that compared work-out facilities of the Division I and Division III teams it would have made as big an impact.
No one contends that the women’s NCAA Division I team could beat the men’s NCAA Division I team, though most women Division I basketball players could probably play on a men’s Division III team somewhere. Which does more for the cause of breaking down gendered stereotypes, having a women’s Division I league and watching the best all women’s teams compete against each other, or watching a few exceptional women play competitively on non-elite men’s teams? There is no easy answer to that question.
The behavior of professional soccer and basketball leagues and of the NCAA suggests that the stark difference in salaries between professional men and women athletes are probably partially rooted in sex discrimination. But, at present, for some sports, salary differences are also rooted in market forces.[443] The NBA’s yearly revenue hovers around the $10 billion mark.[444] The WNBA’s projected revenue is closer to $60 million. Attendance, ticket prices and TV ratings are all lower for the WNBA than the NBA.[445] If the top ten players in the WNBA were paid as much as the top ten players in the NBA, the WNBA would be bankrupt in an instant.[446]
In those sports where fan interest in men’s and women’s competitions is comparable, as is the case with soccer in the U.S. and tennis internationally, pay is being equalized.[447] Tennis is one of the few sports in which the top women make more money than the top men in the United States.[448] All four major international tennis tournaments provide equal prize money for men and women.[449] This equalization of prize money only counts as equality if we accept the legitimacy of the male and female categories.
Serena Williams, quoted at the outset and probably the most successful women’s tennis player ever, famously said that Andy Murray, her contemporary and champion men’s tennis player, would beat her “6-0, 6-0 in 5 to 6 minutes.”[450] Other men, who come nowhere close to her earnings or popularity, could likely do the same.[451] Which does more for combatting stereotypes around femininity and women’s subordination, having the world know who Serena Williams is and celebrate her female accomplishments, or instituting a genderless world of sports?
And finally, there is an example of how intertwined the issues of pregnancy and sports can be. Middle-distance runner Alysia Montano, a gold medalist in the Pan Am games, was sponsored, as many athletes are, by Nike.[452] When Montano started working with Nike, the company’s sponsorship policy reduced athletes pay if they got pregnant and had no provisions for childbirth and childcare.[453] Nike’s policy reflected the gender-neutrality of the FMLA—both men and women were treated the same if they got pregnant and they got equally little time off for childcare.[454] Ms. Montano publicly challenged Nike’s policy, demanding that Nike adopt a difference approach and recognize the unique problems that women athletes face.[455] Nike acceded.[456]
In a genderless world of sports, Ms. Montano and many other international leaders in women’s track would struggle to even be competitive in college.[457] In a genderless world of sports, there would be no such thing as women track stars and Nike would not sponsor them.[458] The only companies or leagues that would have childbearing and extensive childcare policies would be those that catered to the sports in which physiological differences wrought by puberty make no difference or advantage women.[459] There would be few female sports leaders able to bring attention to challenges of gestation and, in the sports context, there would be little need to do so because so few so few athletes competing at elite levels would be able to gestate.[460]
This article has analyzed the “problems” of pregnancy in the workplace and women’s competitive sports. Of course, these issues are “problems” only because the worlds of work and sports as we know them have been structured around male norms. If gestation was and had always been seen as normal and necessary in the world of work, the law of the workplace would likely look different. If men had not played such an overwhelming role in the development of sports, the world might well value rock-climbing and distance swimming as much as it values soccer and tennis. But that is not the world in which contemporary law must figure out what sex equality demands or allows.
For over 98% of the population, puberty produces a series of primary and secondary sex characteristics that divide the population into gestators and sperm producers.[461] Stereotypes regarding differences between gestators and sperm producers have flourished for thousands of years. Many of those stereotypes are groundless and attribute to physiology traits that have nothing to do with physiological differences, but the existence of those stereotypes does not negate the fact that there are, for more than 98% of the population, physiological differences.[462] In areas like pregnancy and sports, where primary and secondary sex characteristics are particularly salient to a person’s ability to perform, anti-discrimination law must balance the harms of perpetuating groundless stereotypes against the harms of treating those who gestate just like those who produce sperm.
For over a century in this country, the law has wrestled with that balancing. LGBTQ litigation has challenged assumptions the law might have previously made about when differences are salient because now pregnant people are not always women, and adults have not always gone through puberty as the gender with which they come to identify, but there are still differences that are exceedingly closely correlated with gender. To ignore those differences because there is only correlation, not perfect overlap, between physiological difference and gender is to adopt a sameness approach that discounts the harms of assuming a male norm. It also discounts the benefits that difference can provide.[463]
The rest of the world has been willing to embrace a difference approach to pregnancy in the workplace. This makes pregnancy significantly less costly for gestating workers in the rest of the world, without impacting their ability to perform and compete with male workers. Comparably, the world of women’s sports has embraced difference in a manner that has greatly enhanced women’s participation in sports, participation that has led to more female role models, more confident women workers and more prestige and money for women athletes.[464]
Adopting these difference approaches has no doubt also allowed certain stereotypes to continue to flourish. That laws both improve women’s well-being and encourage unfounded stereotypes is not necessarily a sign of the law’s incoherence or incomplete commitment to sex equality. It is instead a sign that the law continues to wrestle with the advantages and disadvantages of sameness and difference.
https://www.vogue.com/article/serena-williams-retirement-in-her-own-words [https://pema.cc/
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