The future of girls high school sports in Pennsylvania will be debated this afternoon in a room on the third floor of a building in downtown Harrisburg.
On one side, representatives from the office of newly elected Pennsylvania attorney general Kathleen Kane will explain their position that boys should continue to be allowed to play on girls sports teams because prohibiting them from doing so would violate the state's Equal Rights Amendment. Ratified in 1972, the ERA states that gender can't be used as a basis for distinction.
On the other side, the Pennsylvania Interscholastic Athletic Association and Mary Grenen, a Pittsburgh attorney and mother of Allison Grenen, a former field hockey player at Fox Chapel High School, will argue that boys should not be allowed to play on girls sports teams because it denies opportunity for girls, creates a competitive advantage and increases risk of injury, among other reasons.
They will also argue that the current interpretation of the nearly four-decades-old ERA, at least in regard to high school athletic participation, is out of touch and in desperate need of an overhaul.
At the heart of the matter is a 1975 injunction -- Packel vs. PIAA -- in which then-attorney general Israel Packel questioned the validity of a PIAA bylaw which stated "girls shall not compete or practice against boys in any athletic contest." The court declared the bylaw unconstitutional, saying:
"The notion that girls as a whole are weaker and thus more injury-prone, if they compete with boys, especially in contact sports, cannot justify the bylaw in light of the ERA."
In 1975, the idea that boys would eventually be playing on girls sports teams would not have appeared to be on the horizon because the federal Title IX law had only just started to make an impact, introducing more opportunities for girls through sex-segregated teams.
Title IX, introduced in 1972, the same year as the ERA, states that no person can be discriminated against on the basis of gender in any educational program that receives federal funding. When Title IX was introduced, only one in 27 girls played high school sports. Today, about two in five participate.
Increasingly, in Pennsylvania, those young women share the field, court or pool with boys.
According to a survey sent by the PIAA this winter to its 1,470 member schools (742 responded), 38 schools reported boys playing girls field hockey, 14 reported boys playing girls volleyball, eight reported boys playing girls lacrosse, five reported boys playing girls soccer and one each reported boys playing girls swimming and girls tennis. Plus, 163 schools reported that boys had played on girls teams but failed to identify the sport. All told, more than 30 percent of responding schools had a boy playing on a girls team.
In some cases, girls have been injured playing contact sports such as field hockey or lacrosse with or against boys. Last fall, Kallan Piconi, 15, a freshman on the Upper St. Clair girls field hockey team, got a concussion when she collided with a boy, 17, playing for Woodland Hills, which had three boys on its team. Piconi said that she wanted to prove she could play against the boys.
Mary Grenen worriedly watched her daughter compete with boys in field hockey for four years and finally decided to do something about it. She met with the PIAA and got its support in trying to re-open the Packel case, and, on Nov. 30, then-attorney general Linda Kelly approved that request. Grenen and the PIAA hoped that the sides could agree on a common-sense bylaw that prohibited boys from playing on girls teams.
Grenen was surprised when Kane recently filed her position -- that the attorney general's office would not support a modification of the Packel injunction.
"Athletic equity," Kane's status report states, "is required by the Pennsylvania ERA and the ERA will not allow a rule barring boys from participating or playing on girls teams, just as the ERA will not allow a rule barring girls from participating or playing on boys teams."
Looking at the case through the lens of Title IX, it appears that the proposed solutions from the PIAA and the attorney general would not be compliant with the law's intentions.
Nancy Hogshead-Makar, who won three gold medals in swimming at the 1984 Olympics, is now the senior director of advocacy for the Women's Sports Foundation and a sports law professor at Florida Coastal School of Law. She's considered an expert on Title IX. When contacted Thursday by the Pittsburgh Post-Gazette, she said she understood the complexity of the issue in Pennsylvania.
"Sports are unique," Hogshead-Makar said. "Other than bathrooms, they are the only sex-segregated area because of the physical differences between boys and girls."
The Women's Sports Foundation says that, under Title IX, boys should only be allowed to try out for girls teams when "there is no team for boys offered in that sport, boys are underrepresented with regard to total athletic opportunities and the strength and skill levels of the boys are comparable to those of the girls."
The foundation continues: "Boys cannot participate on girls teams when there is no team offered for boys in the sport if girls are underrepresented in the sports program. While courts have found girls to have the right to compete on boys teams under Title IX, the courts have not granted boys the same access to girls teams."
It is most often the case at the high school level that there are more roster spots available for boys than girls because of fielding a football team. A survey by the National Federation of State High School Associations found that in 2010 there were 4.5 million boys playing high school sports compared to 3.2 million girls.
Under Title IX, equal opportunity is the priority. So, if a high school in Pennsylvania has more girls competing in sports than boys, Title IX would allow a boy to try out for the field hockey team -- as long as he was not deemed a safety risk to the girls because of his individual physical characteristics.
In other words, this doesn't have to be a black-and-white solution as the proposals by the attorney general and PIAA would suggest.
This afternoon, as the two sides present their recommendations at a status conference, Commonwealth Court Judge P. Kevin Brobson will hear them, with an eye on determining whether the case can be settled without having to proceed to an evidentiary hearing.
Whatever the judge decides will shape the course of athletic pursuit for thousands of young women, whose predecessors during the past 40 years have come to consider the right to play a sport as integral to the high school experience as the choice to take calculus or run for student government.
"To avoid reality in this instance will only result in depriving many deserving female athletes from opportunity to participate and succeed in athletics," Grenen wrote in a response to the attorney general. "The approach and antiquated attitude of the [Office of Attorney General] will eventually, if allowed, completely devastate athletic opportunities for high school females in the [c]ommonwealth of Pennsylvania."
J. Brady McCollough: firstname.lastname@example.org and Twitter @BradyMcCollough.