JURIST Guest Columnist Alan Boynton of McNees Wallace & Nurick discusses Pennsylvania student participation in gender-specific sports...
ender equality is a societal goal that few dispute. In the arena of sports, particularly at the high school level, there is similarly little dispute that females were underrepresented at schools for decades. That began to change dramatically in the 1970s and, at least at most schools, there now exist reasonably equal opportunities for participation in interscholastic athletics for both boys and girls.
Although equal opportunity has long been the mantra at the high school level, the separation of boys' and girls' teams, or "separate but equal" opportunities, has also been a bedrock principle at the school and state association levels. In almost every sport and in every state, teams are classified by gender, with championships also played by gender. Co-ed teams rarely exist, except when some daring young men and women chose to play on a team of the other gender.
Some state associations allow girls to play on boys' teams. Other state associations, and some schools, do not. Where equal opportunities do not exist, say in the sports of football and wrestling, most courts have held that girls should be allowed to participate.
A more recent phenomenon at the interscholastic level is boys seeking to play on girls' teams, particularly where comparable boys' teams do not exist in the sport. Field hockey and volleyball are the most likely sports to see boys desiring to play, although it also occurs in swimming, lacrosse and even soccer. Such participation is effectively barred in most states. Until recently, Massachusetts and Pennsylvania were among the few states where boys could participate on girls' teams. Recent developments indicate that California may be joining the ranks just as Pennsylvania may be poised to go the other direction.
A recently adopted state statute in California now permits students to play on any athletic team, regardless of his/her gender. That statute is already being questioned
. In Packel I, a 1975 Pennsylvania Commonwealth Court decision, the court required that the Pennsylvania Interscholastic Athletic Association
(PIAA) permit "girls to practice and compete with boys." The decision was based on the Equal Rights Amendment to the Pennsylvania Constitution (ERA).
A few months ago, the same court made clear in Packel II
that the 1975 decision applied only to girls seeking to play on boys' teams, not boys seeking to play on girls' teams. The latter issueand any policy that might be adopted restricting participationwas determined to not have been before the court or ruled on by it. The PIAA is expected to take up the subject of such participation in the near future could adopt a policy before the beginning of the 2014-2015 school year.
In Packel II
, the PIAA, while recognizing the importance of equality of opportunity, also pointed out that there exist very real athletically related physical differences between high school age boys and girls and that these differences raise fundamental fairness questions should boys be allowed to participate in girls' sports. In considering questions of speed and strength, the PIAA noted that to even meet qualifying times to participate in any event in the boys' state track and field or swimming meets, a girl would need to break the girls' state record for that event. This disparity became an issue in Massachusetts in 2011 when a boy won a girls' state swimming title with a time that would not have qualified
to even participate in the boys' state swimming championship event.
In the PIAA cross-country championship, running on the same course and on the same day, 75 percent of all participating boys in 2012 finished ahead of the fastest girl. The clear implication of these performance observations is that if boys are permitted to participate without limitation in girls' sports, they could dominate, dramatically reducing opportunities for participation, and for championships, by girls.
Moreover, boys, on average, are six inches taller and thirty pounds heavier than similarly aged high school girls. While less easily measurable, the increased speed, size and mass of boys poses an inherent increased risk of injury to girls. The size differential is recognized in sport rules. For example, the net in girls' volleyball is lower than that used in boys' volleyball and the ball is smaller in girls' basketball. In the sport of lacrosse, the boys' rules reflect the increased speed and power presented by the competitors by requiring protective gear not required in girls' lacrosse. Boys participating in girls' lacrosse present the same risk factors but without the same level of protection for the competitors.
As the PIAA assesses adoption of a policy governing boys playing girls' sports, it must consider some fundamental questions: when equal treatment creates fundamentally unequal and unfair competition, should gender-blind equality trump fairness? Also, if boys and girls can eachand without limitationplay sports designated for the other gender, does there remain any legitimacy in having teams classified by gender? If not, should the classifications be merged and all teams be considered co-ed since gender is not a limitation on which team a student plays? Such an approach would likely devastate female athletics at the high school level and is not a realistic, or at least a practical, option.
On the first question above, most state interscholastic athletic associations have answered in the negative. Boys are generally barred from playing on girls' teams. The next year will likely see whether the PIAA goes in this direction and, if so, whether Pennsylvania courts agree that the equality sought by the ERA is not a justification for permitting fundamental unfairness in sports competition.
Alan Boynton, a member of McNees Wallace & Nurick, is the Chair of that firm's Injunction Group and, in related capacities, is also a member of the Litigation and Intellectual Property Groups. He is general counsel for the Pennsylvania Interscholastic Athletic Association.
Suggested citation: Alan Boynton, Boys Playing Girls' Sports: Does Equality Trump Fairness?, JURIST - Sidebar, Nov. 27, 2013, http://jurist.org/sidebar/2013/11/alan-boynton-piaa-gender-equality.php.
This article was prepared for publication by Michael Muha, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him/her at firstname.lastname@example.org