Why sex segregate sport? Title VII and Title IX

A central question posed in Playing with the Boys (2008) by Eileen McDonagh and Laura Pappano, is why do sports remain the most sex-segregated (secular) institution in American society (with the possible exception of the military)? Considering Title VII of the Civil Rights Act of 1964 adds an interesting twist to this question. Specifically, Title VII makes it unlawful for an employer to discriminate against any individual based upon race, religion, or sex. The only exception to this rule is when sex is a “bona fide occupational qualification” (BFOC). Title VII does not allow employers to discriminate based on statistical group differences between women and men. For example, in Diaz v. Pan-American Airlines (1971), the airline company argued its policy of hiring only female flight attendants was justified, in part, because women were more soothing to anxious passengers. However, the court ruled that even if it accepted this doubtful argument, some men would be better at reassuring anxious passengers than some women. Thus, it would be more appropriate for airlines to hire males sensitive to passenger needs rather than have a blanket policy of hiring no men at all. Similarly, in cases where strength has been at issue, courts have ruled that if a woman is strong enough to perform the required tasks, she is qualified to hold that job.

In contrast to the approach required by Title VII — that a person’s individual attributes be taken into account — Title IX’s implementing regulations (1975)  specifically permit sex segregation in contact sports. This creates an interesting legal conflict between Title VII and Title IX. While a woman cannot be excluded from a job for which strength is a requirement just because she is female (based on Title VII), a girl hoping to play football may be excluded from doing so just because of her sex (based on Title IX). Although males, on average, may be larger than females, there is a great amount of overlap between men’s and women’s athletic ability. The approach taken by Title IX, however, may prevent such evidence of a continuum (Kane, 1995) from being seen. Thus, as McDonagh and Pappano (2008) suggest, although it has played an important role in growing sport opportunities for girls and women, Title IX has reinforced rather than challenged the belief that women are physically inferior to men.

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