Title IX sports are booming. They are also legitimate towers on the sand.

Caitlin Clark is both the biggest name in Title IX sports and the dubious symbol of this special moment in which women's athletics is exploding in popularity, media exposure, and economic value. As she heads into the heart of what will be omnipresent March Madness, she finally gets the sense that the female athlete and her future are on solid ground. However, that's not the case. Because this moment was built on a legal structure that looked more and more like a tower on the sand. Congress and the president need to stop playing politics with this system and fix the problem.

The legal situation is as follows.

Although Title IX is now synonymous with girls' and women's sports, the 1972 statute actually makes no mention of sports. It simply states, “No person in the United States may be excluded from participation in, denied the benefits of, or subjected to discrimination in any educational program or activity receiving federal financial assistance on the basis of sex.'' It says, “No.” The list of exceptions that allow classification based on gender also includes fraternities and sororities, but does not include athletics.

The first legal mention of sports was in this 1974 amendment, named after Sen. Jacob Javits (R.N.Y.). “The Secretary shall develop and promulgate proposed regulations implementing the provisions of Title IX, which shall include matters relating to intercollegiate athletics.'' Apply rules to activities. ” Please note that this is only talking about intercollegiate athletics. History shows that it was created to protect sports that generate income for men.

Of course, the content of the law matters because federal agencies are only authorized to regulate according to its terms. They do not make laws, but only serve to enforce the laws enacted by Congress. In such cases, it is the court's job to determine whether the regulation is reasonable in light of the law.

In 1975, the Department of Health, Education, and Welfare created the regulations required by the Javits Amendment. In pertinent part, “Recipients may operate or sponsor separate teams for members of each gender if the selection of such teams is based on competitive skill or if the activities involved are contact sports.'' “can be done.'' Please note that in situations where gender differences would make it unfair or dangerous to compete on a coeducational basis, separate teams for boys and girls are permitted, but not required. It also applies not only to universities but also to elementary schools and junior high schools.

Before the regulations were finalized, they went through a process called a legislative veto, were reviewed by Congress with witness testimony from men's and women's groups, and were effectively approved. Both were interested in sports' exceptions to Title IX's rules prohibiting sex discrimination for different reasons. The exclusion of men's football and basketball was justified politically and on the still-valid basis that female athletes are at greater risk of injury in coed contact sports. Expanding the scope of women's sports has always been justified by the physical gender differences between men and women, the resulting differences in performance, and the legal promise of gender equality in educational programs.

Relying on this legislative history, all three branches of government agreed that this agency (now the Department of Education) would operate beyond the scope of collegiate sports, allow schools to field single-sex teams, and allow schools to field single-sex teams. has assumed that it was acting within its authority when it established the formulas it uses in sports. Demonstrate compliance with equality obligations. Because even great female athletes are unlikely to be seen in the absence of gender-segregated sports, because women's sports are the nurturers of women's sports, and without this obligation, policy makers will Single-sex sports are widespread because they would not have invested the resources to develop female athletes. We understand that these regulatory requirements are why we can learn about athletes like Caitlin Clark and the events that showcase them like Women's March Madness.

The problem is that the Supreme Court has eroded this legal foundation in a series of cases that apply to sports, even though they do not arise from the facts of the sport. The legislative veto is now unconstitutional, meaning that the court's practice of granting quasi-statutory compliance to regulations just because Congress has considered them is weak, if not invalid. Additionally, courts now prefer plain-text interpretation of statutes rather than relying on legislative history. This means that it cannot be expected to use its history to justify regulatory schemes. Finally, in this term's Roper Bright Enterprises v. Raimondo case, the court reversed its 1984 Chevron v. Natural Resources Defense Council decision, which required courts to defer to reasonable agency interpretations of laws and regulations. is expected. In a brief to Roper-Bright, the Biden administration was blunt about the implications: “Reversing Chevron now would not only overturn the agency's interpretation of federal law, but also potentially overturn the agency's programs and regulations that derive from that interpretation.” It's hard to think of a better example of a program than Title IX, which is built on a thick mountain of agency interpretation of federal law.

In the post-Roper-Bright world, courts ignore legislative history and independently determine the best interpretation of statutes, so even sympathetic legal scholars consistently read: It can be difficult to defend girls' and women's sports based on text. Prohibits single-sex programming, excludes sports, and requires only “reasonable provisions” to regulate “intercollegiate athletics” taking into account the “nature of the particular sport.” are doing.

Like other government systems, Title IX doesn't collapse all at once. A lawsuit could come in the form of a challenge to the Biden administration's move to include transgender athletes on women's sports teams. or about his interpretation of the Carter administration's 1979 policy, which included the formula schools must use to prove compliance. No matter what issues arise, lawyers will make traditional arguments in defense of the status quo, but as I have argued for many years, ultimately legal fixes will be needed. .

So, here's my suggestion: Why drag this out? How about removing women's and women's sports from the increasingly weak administrative law and adding “competitive sports” to the law's list of exceptions, along with formal equality obligations? It doesn't matter whether they are added above or below a sorority or fraternity. What matters is that they belong there, as they have always done. Being in regulation rather than law is a product of the history of defunct law, and an institution that provides such important social value should not be jeopardized. Yes, partisanship is rampant on The Hill, and it makes it difficult to get anything done. But this should be an easy common ground, especially with a clean bill that leaves transgender issues for another day. It would be a great way for politicians of both parties to celebrate this special moment and prove to voters that their commitment to girls' and women's sports is more than just performance art.

Dorian Lamberette Coleman, a former collegiate national champion, is a professor of law at Duke Law School and author of the forthcoming book “On Sex and Gender — A Common Sense Approach.”