Sex Segregation in Sports As a Public Health Issue
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6 Leong.40.4.640.4.6 (Do Not Delete) 5/17/2019 10:09 AM SEX SEGREGATION IN SPORTS AS A PUBLIC HEALTH ISSUE Nancy Leong† & Emily Bartlett† This Article contributes to the growing debate about the merits of sex segregation in sports by approaching sex segregation in sports as a public health issue. Participation in sports has profound consequences for women’s health. Engagement in athletics affects physical fitness, disease prevention, self-esteem, mental wellness, eating disorders, and many other health-related issues. Sex segregation in sports reduces women’s participation in sports and changes the nature of the sports in which women participate. Both of these issues have implications for the myriad health issues we discuss. The Article argues that analysis under the Equal Protection Clause of governmentally-imposed sex segregation must incorporate these consequences. Even where the government has plausible reasons for segregating sports by sex, those reasons may not be sufficient to survive intermediate scrutiny when the health consequences of segregation are taken into account. The Article does not argue that sports should never be segregated by sex. Rather, it argues that the correct analysis must take into account all the relevant considerations, including those affecting health. The Article proceeds as follows. Part I questions the default assumption of sex segregation in sports. Part II considers sex segregation as a public health issue, noting the relationship between sports participation and a variety of physical, mental, and emotional health issues for women. To the extent that sex segregation depresses or alters women’s participation in sports for the worse, that issue is one implicating † Professor, University of Denver Sturm College of Law. For thoughtful comments and suggestions, we are grateful to Rebecca Aviel, Owen Davies, Charlotte Garden, Anil Kalhan, Margo Kaplan, Justin Marceau, Rachel Moran, Justin Pidot, and Dara Purvis. We appreciate the helpful feedback we received on an earlier version of this Article from the participants at Duke University School of Law’s “Sex and Sport” conference. Finally, we are grateful to the Cardozo Law Review for outstanding editorial work, including Jared Vasconcellos Grubow, Nick Herbert, Corey Hirsch, Austin Howard, Nathan Jablow, Dana Kennedy, Jesse Kitnick, Jacklyn Kleban, Rachel Klein, James Koenderman, Lauren Kostman, Ilana Kornfeld, and Jennifer Pierce. † J.D. Candidate (May 2019), Washington University School of Law. 1813 6 Leong.40.4.640.4.6 (Do Not Delete) 5/17/2019 10:09 AM 1814 CARDOZO LAW REVIEW [Vol. 40:1813 important public health considerations. Finally, Part III discusses the implications of treating sex segregation in sports as a public health issue, both for the law and for sports more broadly. TABLE OF CONTENTS INTRODUCTION .............................................................................................................. 1814 I. SEX SEGREGATION IN SPORTS ................................................................................ 1816 II. A PUBLIC HEALTH ISSUE? ...................................................................................... 1820 A. What Is a Public Health Issue? ................................................................. 1821 B. The Health Implications of Sports Participation .................................... 1822 1. Physical Health Implications ....................................................... 1823 2. Mental Health Implications ......................................................... 1830 C. Sex Segregation as a Public Health Issue ................................................. 1836 III. IMPLICATIONS ......................................................................................................... 1848 A. The State of the Law .................................................................................. 1848 B. Considering Sex Integration...................................................................... 1852 CONCLUSION................................................................................................................... 1856 INTRODUCTION Sex segregation remains the norm in sports of all kinds. Whether the athletes in question are elite gymnasts, high school lacrosse players, or kindergartners playing soccer, the default assumption is that sports should be segregated by sex. Recently, scholars have begun to question whether sex segregation is necessary, appropriate, or even legal.1 Although the answers to these questions likely vary depending on the nature of the sport and the level of participation, it is worth questioning the assumptions that lead uncritically to sex segregation across the board. 1 See Nancy Leong, Against Women’s Sports, 95 WASH. U. L. REV. 1249 (2018) (arguing that sex segregation is in many instances illegal under the Equal Protection Clause of the Fourteenth Amendment when intermediate scrutiny is applied to sex-segregated sports); see also EILEEN MCDONAGH & LAURA PAPPANO, PLAYING WITH THE BOYS: WHY SEPARATE IS NOT EQUAL IN SPORTS (2008). 6 Leong.40.4.640.4.6 (Do Not Delete) 5/17/2019 10:09 AM 2019] SEX SEGREGATION IN SPORTS 1815 Governmental segregation of sports by sex is evaluated under the Equal Protection Clause.2 The Supreme Court has held that sex or gender segregation must be evaluated under intermediate scrutiny, meaning that the government must show that the segregation is justified by an important interest and closely tailored to further that interest.3 As one of us has argued elsewhere, many current instances of sex segregation likely fail to survive intermediate scrutiny. Sex segregation incorporates disproven binary notions of both sex and gender, relies on unproven notions of male physical superiority, undesirably reinforces gender stereotypes, and prevents us from critically examining our basic assumptions about what a sport is in the first place. This Article adds a critical yet previously unaddressed dimension to the intermediate scrutiny analysis by approaching sex segregation in sports as a public health issue. Participation in sports has consequences for women’s health, ranging from physical fitness to disease prevention to self-esteem to mental wellness to eating disorders. Critically, sex segregation in sports both reduces women’s participation in sports and changes the nature of the sports in which women participate, both of which have implications for myriad health issues. The equal protection analysis must incorporate these consequences. Even where the government has some plausible reasons for segregating sports by sex, those reasons may not be sufficient to survive intermediate scrutiny when the health issues are taken into account. This Article proceeds as follows. Part I surveys the arguments regarding sex segregation in sports. Part II considers sex segregation as a public health issue, noting the relationship between sports participation and a variety of physical, mental, and emotional health issues for women. To the extent that sex segregation depresses or alters women’s participation in sports, there are important public health implications. 2 See, e.g., Mercer v. Duke University, 190 F.3d 643 (4th Cir. 1999); Beattie v. Line Mtn. Sch. Dist., 992 F. Supp. 2d 384 (2014). Non–government-imposed sex segregation might be evaluated under a number of frameworks, including Title VII for professional sports, Title IX for college and high school sports when the segregation is implemented by an educational institution that receives federal funding, and myriad state and local laws that, in some instances, reach private entities. Given the wide array of sports and levels of competition, for purposes of this Article we will focus on sports that are regulated by various governmental entities and are subject to the Equal Protection Clause. In other arenas, we think that an equivalent standard should be used to evaluate the appropriateness of sex segregation, even when such segregation would not be illegal. 3 See generally United States v. Virginia, 518 U.S. 515 (1996); Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982); Craig v. Boren, 429 U.S. 190 (1976). 6 Leong.40.4.640.4.6 (Do Not Delete) 5/17/2019 10:09 AM 1816 CARDOZO LAW REVIEW [Vol. 40:1813 Finally, Part III surveys the state of the law governing sex segregation. It then discusses the implications of treating sex segregation in sports as a public health issue, both for the law and for sports more broadly. I. SEX SEGREGATION IN SPORTS Scholars have raised a number of arguments relating to sex segregation in sports. Some recommend it unqualifiedly; some believe in total or near-total integration; some believe that practices should vary by sport and by level of competition; and some believe in a menu of sex- segregated and sex-integrated options for athletes. As a foundation for the remainder of this Article, this Part will briefly summarize those arguments. Laws, policies, and norms work together to create a presumption that when women play sports, they should generally play sports with other women—that is, they should both practice and compete with and against other women.4 This Article challenges the logic underlying this longstanding and largely unquestioned presumption. Previous research undermines the idea that sex should be the default organizing principle for sports at all ages and at all levels of competition: (1) sex and gender are not the same thing and neither is binary; (2) the assumption that women cannot compete against men, or that boys cannot compete