How the Expressive Power of Title IX Dilutes Its Promise

Title IX is widely credited with shaping new norms for the world of sports by requiring educational institutions to provide equal athletic opportunities to women. The statute and regulations send a message that women are entitled to participate in sports on terms equal to men. For several decades, this message of equality produced dramatic results in participation rates, as the number of women interested in athletics grew substantially. Despite these gains, however, many women and girls, especially those of color and lower socio-economic status, still do not participate in sports, or remain interested in participating, in numbers comparable to their male counterparts. Indeed, in recent years the gains in participation rates brought about by Title IX seemingly have leveled off while the childhood obesity crisis, especially among girls, has grown. Title IX scholarship and popular advocacy efforts often focus on greater Title IX enforcement as the way to continue attracting women and girls to participate in competitive sports. This Article examines whether greater enforcement of Title IX’s equality mandate is the answer, by looking at the signals the statute and regulations send to prospective female athletes. In doing so, this Article explains that a key feature of Title IX theory is that discrimination in the form of fewer opportunities for women as compared to men, as well as sub-par conditions for participation, “sends a message” to girls that discourages them from participating. This negative message is the prevailing explanation for why women still do not participate in sports at rates comparable to men. Implicit in this argument is that strong Title IX enforcement can produce the opposite result, continuing to signal that women are entitled to participate in sports on terms equal to men, and that such a positive message will stimulate interest in participation. This Article seeks to push beyond such assumptions to examine with more nuance how Title IX speaks to women about sports and how the law’s expressive content affects women’s interest in participating. Using the expressive theory of the law, this Article takes the position that Title IX powerfully “speaks” beyond its remedies, and the message today is much more complex than that of simply empowering women through a message of equality. Instead, this article asserts that Title IX in fact sends a mixed message, communicating both that women and girls are entitled to participate in athletics under the same conditions as their male counterparts, but also that such participation opportunities are within a model for athletics that serves to exclude those who lack the interest, ability and/or resources to meet its demands. As a result, while Title IX communicates an empowering message that can in many cases stimulate women’s interest in sports, it also sends a message that drives many more women, especially those of color and lower socio-economic status, away