TAG | Title IX
On Monday, April 16, I was proud to be involved in a panel discussion at the Ohio State University Moritz College of Law on the subject of “Homophobia in sports and developments in policies at the institutional level.”
The two panelists were phenomenal: Professor Erin Buzuvis, from the Western New England University School of Law (and co-founder of the Title IX Blog), and Brian Kitts, a co-founder of You Can Play.
The event was well attended by law students, faculty, and alumni.
For those that were unable to attend, the event was recorded and the video is now available online. I parsed the video into segments based on the topic of discussion for your convenience.
You can view the entire event (just over an hour) with one simple click by viewing this YouTube playlist or you can watch individual segments based on the subject you’re interested in by viewing the embedded videos below.
On Monday, April 16, the Ohio State University Moritz College of Law will be hosting a panel discussion on “Homophobia in Sports and Developments in Policies at the Institutional Level.”
The event will be from 12:10 p.m. to 1:15 p.m., and the event is free, open to the public, and lunch will be served. The law school is located in Drinko Hall at 55 West 12th Avenue. (Facebook event with all the details here; RSVPs are appreciated for planning purposes.)
I am very pleased that this event is coming together, and the two speakers that will be on the panel are great: Professor Erin Buzuvis, a Title IX guru, and Brian Kitts, a co-founder of You Can Play. (Their complete bios are below.) Oh, and yours truly will be moderating the discussion.
I also had a wonderful meeting with Sr. Associate Athletics Director, Miechelle Willis, yesterday about the event. Ms. Willis focuses on student-athlete wellness and was very receptive to the slated message for the event. So receptive, in fact, that she agreed to send out an invitation of the event to all the student-athletes and coaches at Ohio State! I have no idea if any will accept the invitation and attend, but the possibility excites me!
While the exact questions and topics for discussion have not been finalized, this is the preliminary list of ideas I have come up:
- NCAA’s new policy for transgender athletes: what are the rules, how did it come into effect, etc.
- Does Title IX apply to issues of sexual orientation and gender identity in college athletics?
- Culture of masculinity in men’s sports and resulting sexist/homophobic conduct (Iowa’s pink visitor locker room, Ohio State ‘lavender jersey’)
- Perceptions and stereotypes of sexuality of men versus women athletes
- Impact and importance of allies in sports
- Negative recruiting in women’s sports: what is it, how prevalent is it, and how does it affect players?
- Implications of NFL, MLB, and NBA adding ‘sexual orientation’ to class of people protected from discrimination in collective bargaining agreements
- State of homophobia and growing numbers of allies in professional sports
I hope to see you there on Monday!
Oh, you may not be in Columbus or have a prior commitment? Don’t worry, we have arranged to have the event recorded and I will be uploading it here as soon as I can. (I plan to splice the video into parts for each question asked, hoping it will be more user-friendly.)
Here are complete bios for the speakers:
Brian Kitts is co-founder of the You Can Play Project, an international effort to promote respect for LGBT athletes in sports. Brian spent more than 10 years in the front offices of professional sports teams in the NHL, NBA, MLS and the NLL. He is the marketing and communications director for the mayor’s office of Arts & Venues in Denver, and teaches sports and entertainment marketing at the University of Denver.
Professor Erin Buzuvis researches and writes about gender and discrimination in sport, including such topics as the interrelation of law and sports culture, intersecting sexual orientation and race discrimination in women’s athletics, retaliation against coaches in collegiate women’s sports, the role of interest surveys in Title IX compliance, participation policies for transgender and intersex athletes, and Title IX and competitive cheer. Additionally, she is a co-founder and contributor to the Title IX Blog, an interdisciplinary resource for news, legal developments, commentary, and scholarship about Title IX’s application to athletics and education. In addition to a seminar about sports, law and culture, she also teaches administrative law, employment discrimination, and property. Prior to joining the faculty in 2006, she clerked for Judge Thomas Ambro of the Third Circuit and practiced law at Goodwin Procter in Boston. She also spent time as a Visiting Professor at the University of Iowa College of Law.
Just over a week ago, the Columbus Dispatch ran a story highlighting (celebrating?) Ohio State football’s new approach to conditioning and training motivation in the Urban Meyer regime: avoid the lavender jersey.
The Dispatch’s Tim May describes Ohio State’s new director of performance, Mickey Marrioti, as “a colorful motivator,” and that “In a scarlet and gray world, a lavender shirt sticks out.”
How it works: you loaf on the field and Mariotti makes you wear a lavender shirt—something the Dispatch describes as “a stain that takes at least a week of renewed gusto to erase.”
Senior linebacker Etienne Sabino acknowledges the purpose of the program, “You don’t want to wear those.”
So what’s wrong with it?
First, and the focus of my concern, while being masked as a tool to build a competitive team environment, forcing a player to wear a lavender jersey as punishment is patently homophobic, sexist, misogynistic, etc. It takes a color that is feminine—and regularly associated with either women or the gay community—and assigns it to weakness, lack of commitment, or failure to work hard. It is then used to demean and humiliate, you know, because the color is capable of emasculating even the manliest of men.
A former professor of mine, Douglas Whaley, blogged on the subject as well. (It is actually how I found out about this.) Whaley writes: “It never occurs to Marotti, of course, that some of his players might actually be gay.”
That is the biggest problem I have with the lavender jersey. If there is a single gay player on that team (the roster lists 86 young men, so odds are, there is at least one) or even an assistant coach or other team personnel, that person is now pushed further in to the closet and feels even more unwelcome and ostracized by the team. Isn’t that rather contrary to the purpose of building a cohesive football team?
Professor Whaley submitted a letter to the Dispatch editors much to that effect:
“So Ohio State football’s new director of performance makes players who are loafers on the field, in the weight room, etc., wear a lavender shirt to embarrass them ["New strength coach a colorful motivator," Feb. 13, 2012]. Does he also use anti-gay slurs when referring to these slackers or is the shirt’s color enough to send the same homophobic message?”
Sheesh, such a contrast from Jim Tressel (who, by the way, is as outspokenly Christian as Urban Meyer) who, as you may have forgotten, was the first Division I NCAA football coach to be interviewed by a GLBT publication.
The second problem—beyond that first point that I’m sure many folks would roll their eyes at, suggesting it is just some over-sensitive, liberal agenda mumbo-jumbo—at best, the program violates numerous NCAA and Ohio state policies, and at worst, the program violates Ohio law and Title IX.
Where to start?
How about Ohio State Athletics’ “Our Values” statement? Most pertinent:
People. We will keep the well-being of our student-athletes, coaches and staff at the core of every decision.
I’m pretty sure the well-being of any gay athletes, coaches, or staffs have been ignored on this one.
Respect. We will celebrate a climate of mutual respect and diversity by recognizing each individual’s contribution to the team.
Violates this too.
What about the NCAA’s anti-hazing campaigns?
It turns out there is not an explicit hazing rule promulgated by the NCAA, but there are countless programs and initiatives the NCAA has initiated to prevent hazing. While most are directed at student-on-student hazing, it is much worse that hazing at issue here is coming directly from the institution—the entity usually charged with protecting the student-athletes from this type of conduct.
One initiative, NCAA’s hazing handbook, titled, “Building New Traditions: Hazing Prevention in College Athletics,” is illustrative.
Page 3. Comparing what is hazing versus team building.
Hazing: humiliates and degrades, tears down individuals, creates division, lifelong nightmares, shame and secrecy, and is a power trip.
This lavender jersey idea hits every single one of those…
Team building: promotes respect and dignity, supports and empowers, creates real teamwork, lifelong memories, pride and integrity, and is a shares positive experience.
… And none of these.
Page 4. What should athletic administrators be responsible for?
Well, crap, the athletic administrators are the ones doing the hazing here, so thinking they’d would act accordingly to prevent others from doing so is asking too much at Ohio State.
No need to keep going through the document; there is plenty there if you want to read further.
How about the “Hazing Fact Sheet” promulgated by the Ohio State Union?
While more directed at student organizations and fraternities, I presume the rules also apply to athletic teams (and if they don’t officially, they should). The Student Code of Conduct definition of hazing: “Doing, requiring or encouraging any act . . . that causes or creates a substantial risk of causing mental or physical harm or humiliation.”
Okay, I’ve provided enough of the “soft” policies; how about some “hard” law now?
Civil liability for hazing is set forth in Ohio Revised Code § 2307.44: “Any person who is subject to hazing . . . may commence a civil action for injury or damages, including mental and physical pain and suffering, that result from the hazing.”
“If the hazing involves students in a . . . university . . . , an action may also be brought against any administrator, employee, or faculty member of the . . . university . . . who knew or reasonably should have known of the hazing and who did not make reasonable attempts to prevent it and against the . . . university . . . .”
That language looks really bad for Ohio State.
Now, the definition for hazing is written rather narrowly in § 2903.31, which could be a defense for Ohio State, in the event a player tried to sue about this.
A quick aside: I doubt any player—probably the only party that would have standing to actually sue about this—would ever bring a civil action about this. But, I think it’s generally a good idea to avoid violating laws whether or not you will actually be sued. (And you never know, maybe there is a gay player on the team or maybe one of those “loafers” doesn’t get their scholarship extended for next year and has a reason to sue.)
Anyway, the definition: “‘hazing’ means doing any act or coercing another, including the victim, to do any act of initiation into any student or other organization that causes or creates a substantial risk of causing mental or physical harm to any person.”
Arguably, the lavender jersey is not an “act of initiation.” If faced with a suit, I’m sure the school would say that the conditioning program is not an initiation to the team. The contrary argument is that especially during the early stages of team formation and conditioning, the norms and culture are being formed, and those are the team are being initiated to it. No knowing which argument would prevail, I would still go to the default perspective that a school—particularly one that hasn’t had the most pristine image as of late—should not test a gray area of the law.
Then there is Title IX.
Many only view Title IX as an equalizing device, providing more opportunities for women in sport. But the law is much more broad and can be used against gender stereotyping. The Women’s Sports Foundation provides a great synopsis of some cases that have addressed harassment based on gender expectations. The courts have ruled that “harassment based on gender non-conformity is a form of sex discrimination and, therefore, Title IX applies.”
Whether the conduct of the team (assigning the lavender jersey) or the conduct of the player (being the “loafer” leading to receiving the jersey) would trigger Title IX protection, again is debatable, but again, it seems like it would be risky for a school to continue conduct in such a gray area.
In sum, the lavender jersey motivation bothers me mostly for contributing to the homophobic culture of sports. But knowing that few athletic institutions will change their conduct because of that, hopefully all the violations of NCAA program, Ohio State University policies, and Ohio and federal laws may do the trick.
I’ve been in the works of planning a “homophobia in sports” type of event to be hosted at the Ohio State law school in mid-April. This issue will definitely have to be discussed, and I’ll be calling in the big shots to do the talking (and hopefully will be able to line up some meetings with athletic administrators as well).
A few hat-tips to send out: Professor Whaley for his original blog post, Andy Gammill for directing my attention to it, and Paul Alderete for creating the Ohio lavender jersey used as a thumbnail for this post (I have no idea what the actual lavender jersey looks like).