Title IX of the Education Amendment of 1972 prohibits sex discrimination in educational institutions that receive funding from the U.S. Department of Education. More simply known as Title IX, the law covers everything from recruitment and admissions, to participation in classes and extracurricular activities, to gender identity, treatment of pregnant students, and sexual harassment.
“That ensures that there are equal opportunities to schools, classes, programming, textbooks for students in our public schools,” says Todd Allen, general counsel for the Kentucky Department of Education and the state Board of Education.
The original language doesn’t mention one area in which the law has perhaps had its biggest impact: The participation of girls and women in school athletics.
“I’m thankful for it every single day, that I could get an education and play basketball at the same time and absolutely loved it,” says the UK Sports Network’s Christi Thomas who was a collegiate athlete at Campbellsville University.
Thomas parlayed her love of sports into another pathbreaking role as the first woman to host a Southeastern Conference football pregame show. Because of the changes that Title IX has brought to women’s sports in the past 50 years, Thomas says her 12-year-old daughter will not have a second thought about pursuing her own passion for athletics.
Before Title IX, schools offered few organized sports for females. Women comprised only about 15 percent of college athletes prior to 1972. Today females comprise about 44 percent of school teams.
Kathy DeBoer was among the early beneficiaries of Title IX. A former volleyball coach and athletics administrator at the University of Kentucky, DeBoer had just graduated high school when Title IX became law. She was among a handful of female athletes at Michigan State University who had to fight for parity even after the law was in place.
“I was at Michigan State at the same time as Magic Johnson, and so I saw in really stark relief what the differences were between what was happening with the men’s basketball team and the women’s basketball team,” says DeBoer, who is now executive director of the American Volleyball Coaches Association. “There were no scholarships for women, our coaches were graduate assistants, we travelled by university cars… meal money was McDonalds.”
Gender Disparities in Sports Still Exist
Those disparities led DeBoer and several of her teammates to file a complaint against the school for Title IX violations. Decades later, DeBoer says disparities continue. She cites how football players have their room, board, and tuitions covered while they’re on campus for summer practices, but women volleyball and soccer players have to pay their own way during those same months.
“That’s a Title IX violation,” says DeBoer. “Athletes need to become activists again, women need to say this is unfair and we’re not going to put up with it.”
Some female athletes are speaking out and using the power of social media to make their cases. At the 2021 NCAA women’s basketball tournament, University of Oregon forward Sedona Prince posted a TikTok video of the training facility available to Final Four teams: A single rack of weights in an otherwise empty room. Price compared that to the men’s Final Four, where teams had a training room stocked with an extensive variety of weight machines.
The post went viral, resulting in significant criticism of the NCAA. A further review of the men’s and women’s March Madness experiences found that male players received PCR COVID tests while female players got the less accurate rapid antigen tests.
Beyond those disparities, Jennifer Smith, a former sportswriter for the Lexington Herald-Leader, says a subsequent study by USA Today found that only about 20 percent of schools are compliant with Title IX mandates.
“There’s a lot of stories to be told within Title IX that are both good and bad,” says Smith, who is now a lecturer at the UK School of Journalism and Media.
DeBoer argues that women’s teams can have comparable value, cash flow, and audience numbers, if given equal opportunities. She applauds the attention these lingering disparities are receiving.
“There are moments when things become important, and right now we’re living in a moment where there is new investment in women’s sports,” says DeBoer. “But I’m also old enough that I know you better lean into your moment, because the moments pass.”
Both men and women athletes are benefitting from new options to earn money through name, image, and likeness (NIL) agreements. Christi Thomas calls it a game-changer for student-athletes, especially for women who can score deals that are just as lucrative as ones going to male players. She points to recent UK athletes like basketball star Rhyne Howard and track phenom Abby Steiner as examples of women benefitting from NIL contracts.
“You want to be able to compensate athletes in some capacity,” says Thomas. But she also warns, “I think there’s going to be lot of work that still needs to be done about how to control this.”
Without regulations from the NCAA or from Congress, state legislatures including Kentucky’s have passed laws to set parameters on NIL deals in an effort to protect the athletes, the schools, and the sponsors.
“For me it took away the clandestine backroom rumor mill of who’s doing what with who, and it legitimizes the athlete, and it legitimizes the schools and the fans and everybody involved,” says state Sen. Robin Webb (D-Grayson), who voted for Senate Bill 6. “But we’ve got to come up with something that’s equitable and accountable and transparent to some degree to retain the integrity of the athlete and sport.”
NIL deals have been available to student-athletes for a little more than a year, and some coaches, school administrators, lawmakers, and fans fear the flow of money has already gotten out of hand. Jennifer Smith says some schools have collectives of boosters that are pooling their money to pay star athletes. Beyond the eligibility issues that could create, Smith says that could also lead to lawsuits and Title IX problems if male and female players don’t have equal access to those funds.
“If schools are facilitating those in any way, they might be in violation of the law,” says Smith
The NCAA might be unable to regulate NIL at this point, says DeBoer, because it would likely face anti-trust lawsuits. She sees NIL and the transfer portal, which makes it easier for an athlete to move to a new school if they don’t like their current one, as threatening the future of college sports, especially the lower profile sports.
“There’s not a professional league in the world that would survive for five years with unrestricted free agency [and] no salary cap,” says DeBoer. “We have an unsustainable model that we have created in intercollegiate athletics.”
A new law in Kentucky bans transgender students from sixth grade through college from participating on girl’s and women’s sports teams at the state’s public schools and colleges. Supporters of Senate Bill 83, also known as the Fairness in Women’s Sports Act, say they wanted to prevent females from having to compete against student-athletes who were born as males.
“I voted in support of the bill,” says Webb, who played high school sports in her native Carter County, and has a daughter who played basketball at Midway College. “My daughter came to mind – what would be an advantage of a biological male taking her spot on [a] scholarship team?”
Gov. Andy Beshear, a Democrat, vetoed SB 83 after it passed earlier this year, saying it is likely unconstitutional for how it discriminates against transgender youth. (Kentucky’s law does not prevent student athletes born female from playing men’s sports.) He said the measure also runs counter to rules already enacted by the Kentucky High School Athletics Association. Lawmakers overrode the governor’s veto.
KDE’s Todd Allen says Kentucky Education Commissioner Jason Glass also opposed the bill, saying it is unnecessary and is contrary to his values of inclusion and support of all students.
Last year the U.S. Department of Education said that Title IX provisions would protect trans student athletes, but that ruling is already facing a legal challenge in Tennessee, according to Allen. Beyond the Title IX questions, he says such legislation may also run afoul of the constitution’s equal protection clause. Instead of creating blanket rules about who can play in any sport, Allen says the courts could take a more moderate approach.
“What we could see from the courts is something that looks more at the unique facts and circumstances,” says Allen. “The sport that the student seeks to play, any type of hormonal therapy or medical intervention that they may have undergone, the time period that has passed since they transitioned.”
As a former high school and collegiate athlete, and the mother of a middle school softball and volleyball player, Christi Thomas says she wants to be compassionate towards youth who struggle with gender identity yet still want to participate in organized sports.
“That’s heartbreaking that you want to compete and perhaps it’s not a situation where you can,” says Thomas. “But the athlete side of me doesn’t want someone to have an unfair advantage when I’ve worked really, really hard to get where I am.”
Boys who go through puberty before transitioning may have physical advantages over biological girls, according to DeBoer. She says males generally have larger hearts and more lean muscle mass. But she also says this is an issue that affects a very small number of people, given how few individuals identify as trans and also want to participate in sports and who were born male but want to play as a female.
The issue gained widespread attention earlier this year when a University of Pennsylvania swimmer became the first trans athlete to win a Division 1 national championship while competing as a female.
But Jennifer Smith says people often overlook the fact that the swimmer, Lia Thomas, finished much lower and even last in other events. Smith argues that just because a trans athlete might have some physical advantages doesn’t mean they will always be able to outcompete other athletes.
“Sports is built around not having a level playing field,” she says. “In athletics you have competitive advantages in lots of different ways.”
Because the issue is so new and so few trans athletes have sought to play at the high school or college levels, Smith says lawmakers are simply “legislating a lot of what ifs.”
But In light of the ongoing debate, Smith says the NCAA has said the governing federation of each collegiate sport can decide its own rules about transgender athletes. Sen. Webb says policymakers will also need to consider issues like housing and locker room accommodations for trans athletes, as well as determining when a student athlete born as a male should be designated as female.
Even with the new law in Kentucky, Allen says he’s heard no groundswell of questions or concerns from public school athletic directors. However legislation and pending court challenges might shake out, he says it’s important for trans students, whether they are athletes or not, to feel welcome and included.
“This group of students is at exponentially higher risk of committing suicide,” says Allen, “and that’s certainly concerning because we don’t want to turn any student from public schools or make them feel that they’re unsupported in those public school programs.”