Women in the Big Leagues: Can They Legally Play on “Men’s” Teams?

The 2015 women’s World Cup final brought in millions more viewers in the U.S. than the 2014 men’s final. As the most watched soccer game in U.S. history, the final has spurred quite a lot of thinking about the lack of relative women’s participation in professional U.S. sports more broadly.

We know that men receive more athletic scholarships for college than women; the percentage of women coaches of men’s sports is tiny, and the percentage of women coaches for women’s sports is dropping as pay for coaches increases; and sports media devote precious little, if any, time to women in sports.

All of these forms of discrimination contribute to fewer women having access to playing sports professionally.

But are there actual, legal barriers to women as players participating in male-dominated professional sports? From the NCAA to the NFL, the answer is technically no.

NCAA and Title IX

Originally signed into law as part of the Civil Rights Act of 1964, Title IX is often the piece of legislation that athletes who are women cite as their legal protection in the arena of college sports. Title IX states that,

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.

Because most colleges and universities cannot function without continuing to receive Federal financial assistance of one kind or another, this legal provision is the means through which many women athletes have attempted to secure their rights to play in intercollegiate sports. Actually playing on a team is not the only aspect of college life Title IX is supposed to regulate, however. More expansive than this, Title IX:

Forbids sex discrimination in all university student services and academic programs including, but not limited to, admissions, financial aid, academic advising, housing, athletics, recreational services, college residential life programs, health services, counseling and psychological services, Registrar’s office, classroom assignments, grading and discipline. Title IX also forbids discrimination because of sex in employment and recruitment consideration or selection, whether full time or part time, under any education program or activity operated by an institution receiving or benefiting from federal financial assistance.

However, because legal standards in the United States require that the court proves individual and/or institutional intent to discriminate in order to prove discrimination, the NCAA’s standards for complying with Title IX–requiring, according to the NCAA’s interpretation, “that men and women be provided equitable opportunities to participate in sports”–is not likely to actually make the systematic changes women need in sports across the country. “Providing equitable opportunities” still allows women’s sports to receive much less than half of college funds for athletics, and it also still leaves athletes who are women vulnerable to more discrete forms of discrimination.

A good case study of these forms of discrimination is the case of Heather Sue Mercer, who in 1997 filed suit against Duke University under Title IX because she was cut from the football team for being a woman and, while she was still on the team, was treated much differently than her male teammates. Even though she was eventually awarded $2 million in damages, the standard for awarding damages (determining malice) is much lower than the standard for determining whether Duke violated Title IX (deliberate indifference, or the intent to discriminate, which Duke was found not to have).

The interpretations of Title IX in intercollegiate athletics that arose from this case have had long-lasting impacts on women trying to break into intercollegiate sports. The court ruled that colleges are not required to allow women to play on “men’s” contact sports teams, leaving decisions about women having access to sports in coaches’ hands. This leaves the door wide open for coaches to make statements like Goldsmith’s, citing arbitrary reasons like size that didn’t seem to impact Mercer’s ability to play just as well as — and better than — others on her team when she was invited to join it in the first place.

In this way, the interpretations of Title IX continue to allow sports discrimination to proceed in similar manners to other forms of workplace discrimination. So long as a coach (read: employer) does not explicitly state that a woman is being denied a deserved position on a team because she is a woman, he and his institution are generally safe from being legally found to be discriminatory in intent and, therefore, in fact. Since few, if any, institutional legal advisers would encourage clients to be explicit in such a manner, it remains very difficult for women to prove discrimination and therefore, to use Title IX as a means through which to gain equitable, safe, and affirmative access to intercollegiate sports participation.