Hearsay from the Sidelines is a show about the place
where law, sports and culture intersect

This episode picks up where the last left off – about 50 years ago – when Title IX's enactment changed education and athletics for women and girls in some big ways. But this 50 year old statute and implementing regulations were not created with trans and non-binary students in mind. Messaging on how schools must create and adapt policies with these students in mind, including rules about athletic participation, has been inconsistent and confusing. To help address this, amendments to the regulations have been proposed. If these changes are finalized, there will certainly be improvements for trans kids in school, but it is not clear that their opportunities to participate in school athletics will be fully protected.

I discussed my thoughts and concerns about the agency language surrounding the proposed rule changes extensively in my interviews and share some excerpts of those conversations with three of them in this episode:

Kim Yuracko (Faculty Profile)
Judd and Mary Morris Leighton Professor of Law, Northwestern Pritzker School of Law
Work referenced:

• Kimberly A. Yuracko, One for You and One for Me: Is Title IX's Sex-Based Proportionality Requirement for College Varsity Athletic Positions Defensible, 97 N.W. UNIV. L. REV. 731 (2002).

Erin Buzuvis (Faculty Profile)
Associate Dean for Academic Affairs and Professor of Law, Western New England School of Law
Works referenced:

• Erin Buzuvis, "As Who They Really Are": Expanding Opportunities for Transgender Athletes to Participate in Youth and Scholastic Sports, 34 L. & Ineq. 341 (2016)
• Erin Buzuvis, Title IX: Separate but Equal for Girls and Women in Athletics, Oxford Handbook of Feminism and Law in the United States, 388 (Deborah Brake et. al. ed., 2021), https://doi.org/10.1093/oxfordhb/9780197519998.013.25

Dara Purvis (Faculty Profile)
Associate Dean for Research and Partnerships & Professor of Law, Penn State Law

Other reports, articles, statutes, rules, rulemaking documents, cases, and administrative materials referenced in this episode:

Reports and Articles

• W.F. Dubé & Davis G. Johnson, Study of U.S. Medical School Applicants, 1972-73, 49 J. MED. EDUC. 849, 850, 858 (1974), DOI: 10.1097/00001888-197409000-00005
• Millard H. Ruud, That Burgeoning Law School Enrollment Slows, 59 A.B.A. J. 150 (1973)
• Meryl Kornfield, Biden’s Tricky Path on Trans Issues, WASH. Post (June 15, 2023, 5:00 am EDT)
• Title IX: Who Determines the Legal Meaning of “Sex”?, CONG. RSCH. SERV. (Dec. 12, 2018), [https://perma.cc/7LV7-4SKC]
• WOMEN’S SPORTS FOUND., 50 YEARS OF TITLE IX: WE’RE NOT DONE YET (2022)

Statutes, Regulations, & Rulemaking Documents

• Education Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 39 Fed. Reg. 22236 (proposed June 20, 1974) (to be codified at 45 C.F.R. pt. 86), available at: https://www.govinfo.gov/content/pkg/FR-1974-06-20/pdf/FR-1974-06-20.pdf.
• 34 C.F.R. § 106.41, available at: https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html#S41
• Title IX of the Education Amendments of 1972; A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71413, 71419 (Dec. 11, 1979), available at: https://www.govinfo.gov/content/pkg/FR-1979-12-11/pdf/FR-1979-12-11.pdf
• Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32637, available at: https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf.
• Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams, 88 Fed. Reg. 22860 (proposed Apr. 13, 2023), available at: https://www.govinfo.gov/content/pkg/FR-2023-04-13/pdf/2023-07601.pdf.
• Gender and Athletics Act, Pub. L. No. 93-380, § 844, 88 Stat. 484, 612 (1974), available at: https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg484.pdf

Cases

• Bostock v. Clayton, 140 S. Ct. 1731 (2020)
• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
• Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)
• Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)

Administrative Materials

• DEP’T OF COM., BUREAU OF THE CENSUS, School Enrollment in the United States: 1972, P-20 CURRENT POPULATION REP. No. 247 (1973), available at: https://www2.census.gov/library/publications/1973/population/p20-247.pdf
• Letter from James A. Ferg-Cadima, Acting Deputy Assistant Sec’y for Pol’y, Off. for C. R. to Emily T. Prince (Jan. 7, 2015) (on file with Bricker & Eckler, LLP), available at: https://www.bricker.com/documents/misc/transgender_student_restroom_access_1-2015.pdf
• Letter from Catherine E. Lhamon, Assistant Sec’y for C. R., U.S. Dep’t of Educ. and Vanita Gupta, Principal Deputy Assistant Att’y Gen. for C.R., U.S. Dep’t of Just. to Colleague (May 13, 2016) (on file with the U.S. Dep’t of Educ.), available at: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
• Sandra Battle Acting Assistant Sec’y for C. R., U.S. Dep’t of Educ. and T.E. Wheeler, II, Acting Assistant Att’y Gen. for C. R., U.S. Dep’t of Just. to Colleague (Feb. 22, 2017) (on file with the Dep’t of Educ.), available at: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf
• Memorandum for Kimberly M. Richey, Acting Assistant Sec’y of the Off. for C. R. (Jan. 8, 2021) (on file with the Dep’t of Educ.), available at: https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf

The theme song for Hearsay from the Sidelines Season 1 is “Splendor Dysphoria” by SuperKnova. I want to express my gratitude to the artist for permission to use the song. You can hear more from SuperKnova on iTunes, Spotify, or wherever you stream your music.