Professor Rosalind Simson (Mercer University School of Law) has recently posted The Title IX Athletic Regulations and the Ideal of a Gender-Free Society (Sports and Entertainment Law Journal 2011) on SSRN. The abstract is as follows:
Some philosophers and political theorists have argued that to achieve a just society we must eliminate gender roles. Few would dispute that many of the reductions in the influence of gender over the last fifty or so years have increased justice in the U.S. Whether justice requires that our society become entirely gender-free, however, is more controversial. A common argument for retaining at least some gender roles is that some are natural consequences of biologically-determined average physical differences between the sexes. Athletics is one context in which people often make this argument. This article focuses on school athletics and the Title IX athletic regulations in order to gain insight into the implications of biological sex differences for the question of whether the creation of a gender-free society is a realistic and worthy ideal. Although Title IX has been hugely successful in increasing female participation on school sports teams, males today still dominate school athletics, and gender roles are still very operative in school sports. This article proposes a framework, based on the concept of equal opportunity, for understanding what it might reasonably mean for a society to be “gender free.” It then argues that overall equality of opportunity requires equality of athletic opportunity, and that, despite its successes, Title IX’s failure to repudiate gender influences makes it unlikely that, in its current form, it will ever lead to equality of athletic opportunity. The article goes on to propose revisions of Title IX that would truly equalize opportunity in the school athletic arena. It thus suggests that the gender-free ideal is ultimately compatible with biologically determined average physical differences between the sexes.