As advocates for athletic equity, the Women's Law Project and the Women's Sports Foundation oppose a recent effort to reimpose unlawful segregation of girls and boys in Pennsylvania interscholastic athletics.
The Grenens, parents of a young woman from Western Pennsylvania, want Commonwealth Court to dissolve an injunction issued in 1975 that barred the Pennsylvania Interscholastic Athletic Association from prohibiting girls from competing and practicing with boys. Their argument rests on the grounds that girls are weaker and more injury prone and therefore will get hurt if they compete with boys. The PIAA has sided with the Grenens.
The Grenens and PIAA are resurrecting old stereotypes that limit girls' opportunities in athletics. Commonwealth Court in 1975 determined that prohibiting girls from competing with boys violated the Pennsylvania Equal Rights Amendment ban on sex discrimination. In doing so, the court rejected the PIAA's arguments that "men generally possess a higher degree of athletic ability" and "girls as a whole are weaker and thus more injury prone, if they compete with boys." Recognizing that individual females may be just as strong and just as skilled as individual male athletes, the court found that the PIAA's justifications had no validity and affirmed that "[t]he existence of certain characteristics to a greater degree in one sex does not justify classification by sex rather than by the particular characteristic."
The injunction and its legal underpinning are on the side of gender equity. While the circumstances differ -- in 1975 the girls were being denied the opportunity to participate on boys teams, whereas now the Grenens and PIAA are trying to keep boys off the girls' teams --the justifications they raise are the same and are as invalid and as biased today as they were four decades ago. The result under the law is the same.
The Pennsylvania ERA does not allow laws or rules based on average differences between the sexes. Boys and girls are not uniquely different in the physical factors that affect athletic skill. In fact, more physical variability exists within a sex than between sexes. Furthermore, there is no evidence that girls are at greater risk if they play with boys. Girls and boys get injured in sport, whether they are playing against or with athletes of the same sex or not. To the extent that factors such as height, weight or strength pose safety concerns, steps can be taken under existing law to equitably address that risk based on those particular characteristics, rather than resorting to preconceived and stereotypical assumptions about whole genders.
The Grenens and PIAA have asserted a dire prediction that, if the 1975 injunction remains in effect, it will devastate girls' athletics because boys will dominate the teams. This position perpetuates the stereotype that boys are always bigger, better and stronger than girls. Yet, girls continue to excel in sports even when boys compete. With increased opportunities in sports since the passage of Title IX and the Pennsylvania ERA, girls are constantly improving athletically.
If a school were able to show that their female students were not receiving equal athletic opportunities and that boys were displacing girls on a girls' team, the 1975 injunction would not prohibit a school from restricting boys from participation on that team. In that scenario, the Pennsylvania ERA, which like Title IX requires equal athletic opportunity, would permit schools to select team members in a way that preserves opportunity for girls on a case-by-case basis.
Safety in sport and the expansion of girls' athletic opportunities are both essential. Recent reports on the frequency and severity of concussions and other injuries -- even on single-sex teams -- show us that schools must do more to make sure competitions are evenly matched and keep our children safe. Likewise, schools must do more to abide by their legal obligation to provide equal opportunities for female athletes. Allowing sex segregation based on harmful stereotypes, however, is not the answer.
Terry L. Fromson is managing attorney of the Women's Law Project. Nancy Hogshead-Makar, a professor at the Florida Coastal School of Law and a three-time Olympic champion in swimming, serves as senior director of advocacy for the Women's Sports Foundation.