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Melissa Harris-Perry: This is The Takeaway. I'm Melissa Harris-Perry. Today marks 50 years since Title IX was signed into law, banning sex-based discrimination in educational programs and activities at federally-funded institutions. The statue itself is only 37 words long but that sentence expanded educational opportunities for millions of women and girls. Now, you might be thinking Title IX is all about gender equity in sports, but as tennis legend, Billie Jean King, said Wednesday at a White House event marking the 50th anniversary--

Billie Jean: Title IX is one of the most important pieces of legislation of the 20th century. It is a law that speaks to the importance of gender equity in this country and stands as a benchmark of global significance.

Melissa Harris-Perry: We're going to get the ball rolling with the sports side of the law just a little bit later, but first, let's dig into that benchmark of global significance. Before Title IX, many educational institutions set quotas for the number of women admitted or barred them from access altogether. As a result, according to a census report in 1970, only about 8% of women were college graduates. Compare that at the time to about 14% of men.

Now, 50 years after Title IX, according to the most recent census data, women actually make up a greater proportion of college graduates than men. Title IX extends far beyond access and admissions. It applies to discrimination in classrooms, in assessments, in extracurricular programs and activities, and it addresses sexual harassment and assault on school campuses.

Title IX has also been used to protect LGBTQ students. Last week, the Department of Education issued a policy directive stating that Title IX protects against discrimination toward students on the basis of sexual orientation or gender identity. To get a better understanding of the legal framework provided by Title IX, I spoke with--

Chai Feldblum: My name is Chai Feldblum, and I am a long-term civil rights advocate and a former commissioner of the Equal Employment Opportunity Commission.

Melissa Harris-Perry: She explained what was happening when Congress passed Title IX in 1972.

Chai Feldblum: Congress, about seven, eight years before, had passed a law that said that any entity that got federal funds could not discriminate on the basis of race, but it did not include sex. This was the Civil Rights Act of 1964, but this provision about federal funding was called Title VI and that applied only to race. While Congress was passing the Civil Rights Act of 1964, it also passed Title VII that said that employers could not discriminate on the basis of sex as well as race and other characteristics.

Now, you have a situation in which, for example, a college could not discriminate against its employees on the basis of sex, but even though it was getting federal funds, it could discriminate against its students on the basis of sex. That simply wasn't fair. Title IX was designed to address that unfairness and, finally, to extend nondiscrimination protection on the basis of sex to any, what was called program or activity receiving federal financial assistance.

Melissa Harris-Perry: What counts as receiving federal funds?

Chai Feldblum: It's a program or activity that has received federal funds. W]hat federal funds do educational institutions receive? Mostly they receive funds because their students get federal loans. Some of them get funds for big research projects, but most universities, they are getting funding through student loans. The Supreme Court decided a case that said, "Oh, that means only the financial aid office of a college cannot discriminate on the basis of sex."

Very strict reading of program or activity that was called the Grove City Case. In response to that, Congress passed a law called The Civil Rights Restoration Act of 1988 that said, "No, if any part of the university gets federal funds, for example, through student loans, every program in that educational institution is covered." That was actually the first piece of legislation I worked on as an advocate in Washington in 1988.

Melissa Harris-Perry: What are some of the cornerstone foundational, either legal challenges that now shape our understanding of what Title IX is and what it can do?

Chai Feldblum: Here's the interesting interaction between different laws. Title VII that says you can't discriminate based on sex in employment has been used to also let us know what is discrimination based on sex in an educational institution. For example, when Congress passed Title VII in 1964 or Title IX in 1972, I don't think they were really thinking about sexual harassment, but the agencies and the courts implementing Title VII said that covers sexual harassment in employment. That led to courts saying, "You have to do something to protect your students from sexual harassment or sexual assault."

One major area that Title IX has made a difference in is incentivizing, at the risk of legal liability, every educational institution to have some system in place to deal with harassment complaints.

Melissa Harris-Perry: I want to dig in a little bit on this question of sexual harassment and sexual assault. I think it is this kind of interesting generational differences as we see Title IX grow and be truly a living piece of legislation, in part, because if you'd said Title IX to me as a college student, 25, 30 years ago, I would've assumed we were talking about sports. When I say Title IX to my college students now, they don't talk about that.

When they say the Title IX office, they're talking about the challenges that they have addressing questions of campus-based sexual assault. What are some of the ways that Title IX has either improved or maybe failed to improve the circumstances for young people on college campuses when it comes to that question?

Chai Feldblum: When Title IX passed, the discrimination in sports was blatant. It was, therefore, also the easiest thing to fix, allowing women to play in the sports, to have those teams available. The importance of the law has shifted to an area that we have not advanced enough in, and that is stopping sexual assault and sexual harassment in the educational institutions.

That is an example of how law is important in changing culture, but it is not enough. It's not enough for their Title IX office to exist, although that's foundational, but people have to feel safe coming forward. People are still concerned. Girls and women are still concerned about retaliation, including social retaliation, if they come forward with complaints, and that's what we need to change as a culture now.

Melissa Harris-Perry: Talk to me about how Title IX has also been novel in its understanding of what constitutes sex. If this initial impulse was girls and women with a presumption of knowing exactly who a girl and who a woman is, how has Title IX grown to protect LGBTQ+ communities on campuses?

Chai Feldblum: This is an interesting story of the intersection between laws. Title VII prohibits sex discrimination in employment, and the Equal Employment Opportunity Commission, where I served as a commissioner, was the first agency to rule that sex discrimination included discrimination against LGBTQ people. Once we ruled in that way, it made it easier for other agencies to rule in that matter as well. The Department of Education, for some time, actually, had been protecting transgender students under Title IX.

Let's go back to thinking about the fact that Congress may not be contemplating a particular issue when it passes a law, but then the words in the statute are what govern, not the intent of a Congress decades earlier. That's how law works. If you discriminate against someone because they were given the identity of male at birth and then at some later time, transition to what their true gender identity is for female, you are clearly taking sex into account. That's the one thing you are taking into account. It logically makes sense that the law protects transgender students as well as lesbian, gay, bisexual, queer students.

Melissa Harris-Perry: Chai Feldblum is former commissioner of the EEOC. Thank you so much for joining us today.

Chai Feldblum: Thank you and thank you for highlighting Title IX in this way.

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Melissa Harris-Perry: Shortly after Title IX was passed, the law began opening new opportunities for women in sports and attempting to level the playing field. According to report from the Women's Sports Foundation, in 1972, there were about 300,000 women participating in high school athletics. In the 2018-2019 school year, that number was nearly 3.5 million, and at the collegiate level, the number of women athletes competing on teams rose as well.

In 1972, they made up just 15% of college athletes. Last year, they made up 44%. For more on this and what gaps still persist, I'm joined by Donna Lopiano, the President and Founder of Sports Management Resources, former CEO of the Women's Sports Foundation and a national sports Hall of Fame for sport athlete, who just so happens to have six national softball championships on her trophy shelf. Welcome to The Takeaway, Donna.

Donna Lopiano: Hi, Melissa. Thanks for having me.

Melissa Harris-Perry: Let's just start with the personal for a moment. You played softball before Title IX existed, tell us a bit about these moments in the world before Title IX.

Donna Lopiano: There were very few school opportunities for girls to play sports. If you played sports at all, it was on Little League. It was on outside teams, non-school teams. There were very few of those for girls. There were many opportunities for boys. Originally, I was supposed to be a pitcher for the New York Yankees. That was my dream growing up.

With my friends, I grew up on a street with 15 boys and one other girl. I tried out for Little League. I was drafted number one, I was quite the player. On the same day I was drafted and lined up to get my first official uniform, a father came to stand beside me, opened up the Little League rule book and read four words that would change my life forever. Those words were "no girls are allowed".

I cried for three months and it took almost four years for my parents to find a women's corporate softball team for me to play on. All those softball championships were non-school American softball association outside team championship. I still really didn't get the chance to play high-level sport through school.

Melissa Harris-Perry: As you describe those four words, the no girls allowed-- I'm sorry, what are the four words again?

Donna Lopiano: No girls are allowed.

Melissa Harris-Perry: No girls are allowed. I'm thinking in this moment about transgender athletes, young people being barred with very similar words.

Donna Lopiano: Do you have a question? Do you want me to think about it or talk about it?

Melissa Harris-Perry: Yes.

Donna Lopiano: Okay. Definitely, this is a very contentious problem in our society because we have the conversation about this issue occurring at two separate extremes. One extreme promoted by the transgender organizations, the social justice organizations we all respect like the ACLU, the National Women's Law Center, is that transgender girls should be allowed into women's sports without condition.

They should be allowed to compete head to head against female, meaning biological female athletes even if they have performance advantages, even if they do not take hormones to reduce their male post-puberty advantage.

The other extreme is total exclusion. There are 18 states in the US who now have laws that say you can only participate in women's sports by birth sex. Those laws were passed, some by well-meaning people, parents worried about the safety and fair competition for their daughters but also not so well-meaning people who are transphobic.

You have this emotional place where nobody's talking to each other, they're yelling at each other. It's common to our society at the moment. The answer is in the middle. When people start talking to each other, they'll realize what the answer is. We hope that happens in the next several months example. We should allow every transgender girl to participate in women's sports in its social construct.

90% of sport is a social construct. It's practice, it's team meetings, it's being on the bus. Everybody talks about the comradery of team that that's the most meaningful part of sport. Only 5% of it is competition, and that's the only place where the unfairness occurs. Transgender girls post-puberty are stronger, they're faster, they have performance advantages of male sex-linked post-puberty bodies.

That creates a situation where you may have an unsafe condition in collision sports and you have unfair sport, somebody competing with immutable advantages. Title IX was passed. Women were given a separate opportunity to play because they recognized that boys had those immutable performance advantages and girls didn't and girls would never get the chance to play if there was only one team. Everybody tried out for one team, but girls had to have their own team. That's where the dilemma is.

If we allow all trans girls to play in women's sports, allow them all to participate in everything but competition, and when it comes to competition, separately score them. We do that now. We do that with the 120-pound wrestler. We don't make the 120-pound wrestler compete against 175-pound wrestler. It's unfair, it's unsafe. That's the analogy to think of.

Key is that we have to teach our children that these human variations in gender identity, these human variations in physiology between the biological sexes are normal. They should be respected. If a transgender girl wins a championship being separately scored, that that is just as valuable as a biological female winning a championship that is separately scored. That's the place we have to be, and we are not even close to that right now.

Melissa Harris-Perry: Donna, take a quick break with me. We're going to be right back. We've got more on Title IX, girls, women, and sport. This is The Takeaway.

You're back with The Takeaway. I'm still here in conversation with Donna Lopiano, President and Founder of Sports Management Resources and former CEO of the Women's Sports Foundation and a national sports Hall of Fame for sport athlete.

Let's talk a little bit, Donna, about how Title IX came to apply to sport. You've been walking us through these really critical junctures in the experience of girls relative to sport, but Title IX was initially thought of in the context of educational opportunities. Tell us more about the sport piece.

Donna Lopiano: In 1972, when the 37 words of Title IX were passed as federal law, the target was graduate education for women. That there were quotas on the number of women who were admitted to medical school, law school, engineering majors, and those were the highest-paying jobs in the country. The reason was because of sexual stereotyping that higher education thought, "Why are we going to waste in education on women? They're going to get married. They're going to have kids. They're going to opt-out of the workforce. Boys and men need this more than women," which now seems antiquated and unfair and it was. That was 1972.

Title IX passes. In 1974, the National Collegiate Athletic Association's lawyers in Washington DC asked the question of the Department of Education. "Hey, does this apply to extracurricular activities like intercollegiate athletics and inter-scholastic sports?" The answer was yes, and all hell broke loose.

The President of the American Football Coaches Association, College Football Coaches Association, who was then Darrell Royal, the University of Texas was quoted nationwide as saying that Title IX and women's sports would be the death of big-time football, which ignited a media frenzy. We were fortunate that that media frenzy occurred because the media asked for both sides of the story.

When the media talked to parents of girls, when the media talked to professional physical education teachers, women who are physical educators, and the public learned about the benefits of sport for girl, research supported benefits of sports for girls and boys that they're more likely to matriculate in college. They get better grades. Girls are at lower risk for teen pregnancy, they're at lower risk for breast cancer. They are less likely to be sexually assaulted.

Parents were the ones that stood up and said, "Hey, we want our sons and daughters treated equally." It was that impetus that led Congress to be really strong to make sure that Title IX applied to women's sports as well as women's education.

Melissa Harris-Perry: Those benefits that you're talking about. Being born in 1973 and so growing up with-- I often think of myself as like that Title IX first generation of young women, having that opportunity to play, certainly, not with the kind of success that you had, but nonetheless, being able to play, being on the teams, that camaraderie, those bus trips that you were talking about, it certainly did change the course of my own educational opportunities and of my sense of myself.

I guess part of what I'm interested in here is how Title IX, once that becomes clear, once you've talked to parents, once the research becomes clear, how swiftly does it happen that opportunities like those that I had in high school become available broadly to young girls and women across the country?

Donna Lopiano: It's been very slow to approach equity, and we're not even close yet. To give you an example, you started by saying that, "Hey, we now have 3.4 million opportunities at the high school level for girls." In 1972, boys had 3.6 million opportunities to play, so we haven't even reached that level yet. Boys' participation has continued to grow. They now have 4.5 million opportunities to grow.

Boys have not been hurt by women playing sports. They've continued to get the bulk of resources, both scholarships and opportunities to play. Girls have been struggling to catch up and schools have not been serious about complying with the federal law.

Even though we're celebrating this 50th anniversary of Title IX, it's a chance for us to listen to these stats and to recommit ourselves to trying to figure out, "Hey, how do we finish this game?" It's been 50 years. Do you think we would've reached equity by now?

Melissa Harris-Perry: What does finishing this game and running across that finish line of equity? What does that look like?

Donna Lopiano: The reason why there's no enforcement of Title IX is that the federal government doesn't have the resources or the time or the money to enforce, to look at every single program and enforce every law because it's not just about women's sports, it's about sexual harassments. It's about fair use of public facilities. It's tons of federal laws that have to be enforced by the government.

What's missing is this piece. This is how to fix Title IX and get to actual league quickly. Federal government should amend Title IX and should say that if any school or college sponsors an athletic program in order to be eligible for federal funds, $130 billion a year in higher education funds, for instance, that you have to be the member of an high school athletic governance organization, or a college athletic governance organization, like the NCAA or the state high school sports association that requires Title IX compliance as a condition of membership and a condition for boys and girls to access postseason play.

Then that governance association has to have a mechanism to assess compliance with that membership rule every three to five years. There's somebody looking, there's transparency in terms of gender equity data, and there's pressure because boys want to play sports too, and they want to have state championships and national championships, so that there's a real incentive to comply with gender equity laws.

Melissa Harris-Perry: Donna, I really love the way you think. Not only in terms of the ways that you were finding a middle ground for us around these questions of young trans athletes, but also that shifting incentives is such a powerful way to make compliance work, because it creates a circumstance where you don't have to look over the shoulder of every single organization, instead, you create the incentive for complying.

Donna Lopiano: Absolutely.

Melissa Harris-Perry: Donna Lopiano, President and Founder of Sports Management Resources, former CEO of Women's Sports Foundation. Thank you so much for joining The Takeaway.

Donna Lopiano: Thank you, Melissa.

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