A Tale of Two Administrations: Transgender Military Rights, 2008 2020

Gender identity and sexual orientation in the military have long been controversial. The Constitution generally provides the President and the executive branch with authority over the armed forces and their policies regarding LGBTQ service members have long sparked debate amongst the American people. The rights of transgender individuals to serve in the military has become a hot topic since President Donald Trump called for a transgender ban. This marks a regression from the many policy changes regarding LGBTQ service members which occurred during the Obama administration. According to a 2009 publication from the National Center for Transgender Equality, the term transgender is “an umbrella term for people whose gender identity, expression, or behavior is different from those typically associated with their assigned sex at birth, including but not limited to transsexuals, crossdressers, androgynous people, genderqueers, and gender non-conforming people” (Tadlock 2014). While the Constitution does not specifically mention transgender people, supporters of openly transgender service members have asked the courts to use strict scrutiny to consider whether the Trump administration’s ban violates equal protection, substantive due process, and the First Amendment of the Constitution. The Fifth Amendment's Due Process Clause requires the United States government to practice equal protection (Robson 2018). Proponents of removing the barriers which prevent citizens from joining the military argue that this is not a matter of requesting special treatment. Rather, it is a push for all service members to be held to the same standards. While this paper focuses on the current policy debate over the rights of transgender individuals in the military, it frames the issue by referencing policies which affect the broader LGBTQ community. Additionally, the author of this paper recognizes that, until recently, few political scientists have focused directly on the politics of the transgender community. According to a 2009 publication from the National Center for Transgender Equality, “this coincides with the relatively marginalized status of transgender issues within the broader lesbian, gay, bisexual, and transgender (LGBT) movement throughout the years (Tadlock 2014). Initial victories for the military’s transgender community revolved around the broader LGBTQ community. Until its repeal in 2011, the U.S. policy towards military service by gays, bisexuals, and lesbians was known as “Don’t Ask, Don’t Tell” (DADT). This policy was a result of Department of Defense directive 1304.26, incorporated during the Clinton Administration. Under the section titled “Provisions Related to Homosexual Conduct,” a compromise was made for members of the armed services who engaged in homosexual acts. The legislation held that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability.” It additionally specified, however, that “applicants for enlistment, appointment, or induction shall not be asked

or required to reveal whether they are heterosexual, homosexual or bisexual” (Department of Defense 1993). Under DADT, service members were forbidden from discussing their sexual orientation but not asked about it. Author Kellie Wilson-Buford writes in her book about the effect of the policy. “Though intended to make sexual orientation a non-issue, DADT had the adverse effect of legalizing a basic inequity that the Constitution was supposed to guard against. By preventing gay service members from sharing their experiences, the policy of DADT shielded itself from scrutiny and interrogation and propagated an atmosphere of suspicion and fear for service members whose most innocent gestures often became the means for their court-martial” (Wilson-Buford 201-34). The LGBTQ community played an important role in the 2008 election of President Obama. According to McThomas and Buchanan, “during candidate Obama’s promises of inclusion and civil rights for all, the largest percentage of GLB [Gay, Lesbian, and Bisexual] voters sided with the Democrats” (442-48). A few years later, Obama signed into law the Don't Ask, Don't Tell Repeal Act of 2010, ending almost two decades of the policy. Upon the repeal of DADT, U.S. Under Secretary of Defense Clifford L. Stanley stated that “it remains the policy of the Department of Defense that sexual orientation is a personal and private matter [and] to treat all members with dignity and respect...to ensure maintenance of good order and discipline. There will be zero tolerance for harassment, violence or discrimination of any kind”. When the Repeal Act came into effect in September 2011, Clifford elaborated in a memo which stated that “sexual orientation may not be a factor in accession, promotion, separation, or other personnel decision making” (Department of Defense 2011). It would seem that progress for the LGBTQ community was stemming from, of all places, the military. Throughout Obama’s presidency, changes were made in military policy towards acceptance and accommodation of the LGBTQ community. In the decades prior, the Pentagon considered transgender people as sexual deviants to be ousted from service. After the repeal of DADT, advocates continued to demand further protections for the military’s most marginalized constituency including the expansion of benefits to same-sex partners of military personnel and the inclusion of openly transgender service members. In May 2014, Defense Secretary Chuck Hagel said he was open to reconsidering the ban on transgender people serving openly in the military. He stated his belief that "every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it." He added that transgender issues are "an area that we've not defined enough" (Raddatz 2014).As Obama’s Vice President, Joe Biden affirmed his support and interest in promoting the LGBTQ community in a 2014 speech. “I will not be satisfied [un]til everyone in the lesbian, gay, bisexual, transgender community is afforded the dignity, the freedom, and the equality that my father spoke so clearly of because that's the only way. Only when you do that will we be a whole nation” (Biden 2014). Biden called transgender rights “the civil rights issue of our time.” Then, in July 2015, Hagel’s successor Secretary of Defense Ash Carter released a statement on the Department of Defense’s (DoD) transgender policy. In this statement, he called the DoD’s “current regulations regarding transgender service members...outdated.” He stated his belief that

these policies “caus[ed] uncertainty that distract[ed] commanders from our core mission.” Carter also outlined the DoD’s plan to ensure all service members were treated equally with dignity and respect. His first directive established a study to identify the implications of the inclusion of transgender military personnel. The second directive was “that decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves as transgender be elevated to Under Secretary Carson, who will make determinations on all potential separations (Department of Defense 2015). Each of these developments eventually culminated into one major victory. In 2016, the Pentagon lifted its ban on transgender troops serving openly in the military. As Carter announced in his brief, “effective immediately, transgender Americans may serve openly and they can no longer be discharged or otherwise separated from the military just for being transgender. Additionally, I have directed that the gender identity of an otherwise qualified individual will not bar them from military service or from any accession program” (2016). This announcement further eliminated barriers preventing able-bodied transgender Americans from serving in the armed forces. The announcement reversed any policies which differentiated transgender members from their peers. The goal was to prevent unequal treatment of military service members based solely on gender identity. Carter also discussed the results of a yearlong study by the RAND Corporation on the effects of the inclusion of transgender service members in the military. RAND concluded the health care costs of including transgender service memebers would represent “an exceedingly small proportion” of DoD’s overall health care expenditures (Schaefer et al., 2016). In his directive, Carter explained that the militaries of eighteen other countries allow transgender personnel to serve openly, including close U.S. allies like Australia, Israel and the United Kingdom. According to Carter, “based on its analysis of allied militaries and the expected rate at which American transgender servicemembers would require medical treatment that would impact their fitness for duty and deployability, RAND’s analysis concluded that there would be minimal readiness impacts from allowing transgender servicemembers to serve openly” (2016). Following this policy announcement, transgender people already serving in the military were able to do so openly and were no longer at risk of being involuntarily separated, discharged, or denied reenlistment or continuation of service based on their transgender status. Carter’s policy implementation plan promised that 90 days after the ban was lifted, the DoD would issue a commanders' guidebook for leading currently-serving transgender servicemembers as well as medical guidance to doctors for providing transition-related care to currently-serving transgender service members. Carter also explained that in the nine months following his announcement, commanders, medical personnel, operating forces, and recruiters would receive training on the new guidance. Carter concluded that within a year of his announcement, "[t]he military services w[ould] begin accessing transgender individuals who meet all standards – holding them to the same physical and mental fitness standards as everyone else who wants to join the military” (2015). These changes in the DoD’s policies regarding transgender eligibility for service marked what many had hoped would be a lasting victory in the civil rights and liberties of the LGBTQ

community. Not everyone wanted to lift the ban, however, and the Obama administration’s policy changes were reversed by the Trump administration on July 26, 2017. Trump tweeted in a series of three posts that “after consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow… transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming…victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you” (2017). Approximately one month later, Trump issued a Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security. “By the authority vested in me as President and...Commander in Chief...under the Constitution and the laws of the United States of America, including Article II of the Constitution, I am directing the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above” (The White House 2017). Trump then issued a directive to Secretary of Defense Matthis to determine how to address transgender troops currently serving openly in the military. Trump also called for the DoD to halt some transition-related healthcare. The Constitution grants the President authority to direct policy. However, this constitutional authority is separate from the constitutionality of the policies themselves. Presidents sometimes conflate their political rhetoric with legal instructions. If a policy is challenged, its constitutionality must be determined by the courts. Katherine Shaw writes in the Texas Law Review about how presidential speech should be interpreted by the courts. She cites DADT as an example of how presidential speech has been interpreted. Regarding the case Log Cabin Republicans v. Obama, Shaw writes that “the district court relied on a single presidential speech as support for the conclusion that, contrary to the representations made by the Departments of Justice and Defense, DADT did not advance national security interests” (319). In this case, the court used the President’s statements as admissions. The President is commander in chief of the military and the court used his admission to contradict the government’s assertion about potential national security and overall military readiness in DADT. Donald Trump’s announcement of the ban was met with multiple lawsuits questioning its constitutionality. GLAD (GLBTQ Legal Advocates and Defenders) is representing the plaintiffs in both Doe v. Trump and Stockman v. Trump. Lambda Legal and OutServe-SLDN, a network of LGBT military personnel, represent plaintiffs in Karnoski v Trump. All three cases were filed in federal trial courts by current and would-be service members. In each case, the courts blocked the Trump administration from enforcing its transgender ban. The Trump administration’s Department of Justice then asked the Supreme Court to review all three cases. For those opposed to allowing transgender service members, Trump’s ban was a victory. Secretary Mattis announced in response to Trump’s initial memorandum that after an extensive review of military service by transgender individuals, Mattis and a panel of senior military leaders and other experts determined that the prior policy adopted by Secretary Carter posed too great a

risk to military effectiveness. According to Mattis, “Compelling behavioral health reasons require the Department to proceed with caution before compounding the significant challenges inherent in treating gender dysphoria with the unique, highly stressful circumstances of military training and combat operations” (2017). This contradicts the RAND study which was cited by proponents of the inclusion of openly transgender service members. Since that second memorandum, a petition for a writ of certiorari before the U.S. Supreme Court was issued by U.S. Solicitor General Noel Francisco on November 23, 2018. Karnoski v. Trump is currently pending. Following initial victories for transgender members of the military in the U.S. district courts, Francisco argued that the Supreme Court should step in immediately due to the risk that open transgender military service would create. Ordinarily, decisions made by the U.S. district courts make their way to appeals before being petitioned in the Supreme Court. Francisco argued, however, that the government could not afford to wait for the U.S. courts of appeals to issue rulings because the old policy poses “too great a risk to military effectiveness and lethality” (Howe 2018). Karnoski v. Trump was filed on August 28, 2017 in the U.S. District Court for the Western District of Washington to challenge Trump’s attempt to reinstate a ban on open service for transgender people. This case argues that the policy announced by Mattis was unconstitutional, the constitutional provisions in this case being the First and Fifth Amendments. According to the U.S. Supreme Court, the issue is “whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions” (2018). The plaintiffs include nine transgender individuals and three organizations. The individual plaintiffs are Ryan Karnoski, D.L., Connor Callahan, Staff Sergeant Catherine Schmid, Chief Warrant Officer Lindsey Miller, Petty Officer First Class Terece Lewis, Petty Officer Second Class Phillip Stephens, Petty Officer Second Class Megan Winters, and Jane Doe. Karnoski and Callahan both aspire to enlist in the military. Schmid, Muller, Lewis, Stephens, and Winters all currently serve openly in the military. Jane Doe currently serves in the military, but is not openly transgender. The organizational plaintiffs are the Human Rights Campaign and the Gender Justice League, organizations committed to fighting for the human rights of LGBTQ people (Karonski v. Trump). The initial decisions of the U.S. district courts have prevented the military from adopting the new policy proposed by Mattis. The military has been forced to maintain the Obama administration’s policy for nearly one year. The Trump Administration has acknowledged in its petition that “absent this [Supreme] Court’s prompt intervention, it is unlikely that the military will be able to implement its new policy any time soon. Accordingly, the government is filing this petition and two other petitions for writs of certiorari before judgment to the Ninth and D.C. Circuits.” According to Supreme Court rules, the “Court will grant certiorari before judgment ‘only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court’” (Constitution of

the United States). The petition by Noel Francesco argues that the case satisfies this standard. According to this petition, the issue of this case is of imperative public importance because it involves “the authority of the U.S. military to determine who may serve in the Nation’s armed forces.” It also argues that immediate grant of certiorari is warranted to ensure the district court’s injunction is not in place for longer than necessary. Moreover, the petition argues that the district court decisions were wrong, the injunctions were overbroad, and the respondents’ constitutional challenges to the Mattis policy lacked merit (U.S. Supreme Court 2018). According to Cole and De Vogue, one reason for the petition is the consevative court. “Francisco has moved aggressively at times to get cases before a Supreme Court that is more solidly conservative with the addition of Justice Brett Kavanaugh'' (Cole and De Vogue 2018). What will happen next is unclear. As an article in Time explained, “the timing of the Administration’s effort to get the Supreme Court involved in the issues at an early stage could hardly be worse for Roberts and other justices who have sought to dispel perceptions that the court is merely a political institution, especially since the confirmation of Justice Brett Kavanaugh'' (Sherman and Gresko 2018).According to Amy Howe, a former editor of the SCOTUSblog, “the service members in the three cases are scheduled to respond to the government’s appeals on December 24; the justices are likely to announce in early to mid-January whether they will take up the cases.” Howe explains that petitions for certiorari before judgment are not granted often. However, the courts will consider the Trump administration’s request. Howe also notes that “because the three cases hail from different parts of the country, two of the requests go to Justice Elena Kagan, who handles emergency requests from California and Washington, while the third goes to Chief Justice John Roberts, who handles emergency requests from the District of Columbia'' (Howe 2018). This is not the first time the Trump Administration has asked the courts to interfere with the appeals process. In January, it petitioned the Supreme Court to fast-track cases challenging its plans to end DACA (Deferred Action for Childhood Arrivals). That request was denied. The reality is that the environment for the transgender community is hostile under the Trump administration. Despite recent victories under the Obama administration, citizens who identify as LGBTQ and wish to serve in the military continue to be at risk. As many efforts as the Obama administration made to increase inclusion for targeted individuals and protect them from discriminatory practices, the Trump Administration made strident efforts to deny those individuals basic freedoms and rights guaranteed under the U.S. Constitution.

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Title IX, passed by Congress in 1972 as part of the larger Education Amendments, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance” (Veracity Media 2020). This law was designed to do away with the institutional barriers that women faced in education and include sex as a protected class category. Today, Title IX has been expanded to encompass issues its authors couldn’t have imagined and its enforcement agency, the Office for Civil Rights (OCR), has changed the landscape of gender in education regulation forever. In this paper, I discuss the relationship between regulations and the formal features of government, the influence of intermediary institutions on the regulation of athletics under Title IX, and how these factors have had a detrimental impact on this area of policy. In 1946, Congress passed the Administrative Procedures Act (APA), a law that was intended to establish and formalize the process by which federal agencies regulate. It outlined three steps agencies needed to take to create a new law: give notice that it would publish the new rule in the Federal Register (the official journal of the federal government), allow a time period for the public and experts to comment on it, and publish the new rule in the Federal Register. Within 60 days, the rule would become real and enforceable law. This process, commonly known as “Notice and Comment,” is how the OCR is legally mandated to create regulation. Congress had also added an additional constraint on Title IX rules, saying that “no such rule, regulation, or order shall become effective unless and until approved by the President” (Melnick, 42). However, the OCR has only ever gone through this full process once, in 1975, when it created its initial Title IX rules. Every additional rule and regulation it has issued since has been in the form of an interpretation, clarification, ‘Dear Colleague’ letter, or court decision deferring to the agency. The agency has repeatedly said that its numerous ‘Dear Colleague’ letters have not changed federal regulation, claiming that all significant changes in policy on athletics, sexual harassment, and transgender rights have been “nothing new” (Melnick, 45). Additionally, the practice of “institutional leapfrogging” has only allowed this problem to persist. According to Melnick, institutional leapfrogging is when courts and federal agencies each take steps beyond each other to change and expand regulation. For example, when the OCR rules come under scrutiny, a circuit court might defer to the agency and interpret an agency’s previous clarification or even adopt a broader understanding of what the agency meant. This convoluted process can be considered part of the “submerged state” because unlike a Supreme Court case, court decisions like these can easily fly under the radar of the public even as they can have massive consequences for society (Mettler, 9). The fact that the OCR is tasked with the important job of outlawing discrimination in schools begs the question: by what authority does the OCR issue these rules? If almost none of its rulings on athletics have passed through the proper legal channels, are

they legally binding? Are schools required to follow any of them? The OCR is part of the Department of Education, which usually falls under the purview of the executive branch. The OCR enforces Title IX, which was written and passed by Congress. Yet the OCR relies on the courts for a majority of its enforcement power and for judicial deference to its guidelines. Thus the relationship between the content of the OCR’s regulations and the structure of power in our government is complicated and flawed. There is no clear-cut way to trace accountability or where the OCR gets its authority. As Senator James Lankford (R-Okla.) commented, the OCR has “sought to avoid notice-and-comment procedures, fearing that education officials and other interested groups would have voiced substantive objection to the...policies if given an opportunity” (Melnick, 44). The OCR’s actions, then, could set a dangerous precedent within other federal agencies. Important rules that govern wide swathes of American life are being put into effect without being subject to accountability, input or oversight. This huge disparity between what should have been done and what the OCR has done may have contributed to the disconnect in Title IX regulation of athletics. Title IX is based on the belief that “denying women and girls equal educational opportunity is no more acceptable than denying such opportunity to racial minorities” (Melnick, 41). However, race and sex are not analogous and the decision to use the same regulatory framework for Title IX has contributed to some of its shortcomings. Furthermore, although the original Title IX law did not specifically mention athletics, Title IX has grown to become almost synonymous with athletic opportunity in the public mind. This is likely because athletics is the only place in modern society where the maxim “separate but equal” still applies. Unlike the academic sphere, in athletics it is not enough to eradicate institutional barriers or discriminatory policies. With athletics, physical differences between the sexes have to be acknowledged. Therefore, the question for regulators is: how do we measure equality? There are two ways to define equality in athletics, the relative interest standard and the parity standard. According to the relative interest standard, equal opportunity is achieved when the percentage of female undergraduates at an institution who are interested in playing sports determines the amount of resources the program receives and the number of athletes it supports. According to the parity standard, however, equal opportunity for women is achieved when the ratio of female athletes to female undergraduates at a school is the same as the ratio of male athletes to male undergraduates. The OCR originally enforced Title IX under the relative interest standard under its 1975 APA-processed regulations and held that “schools must work effectively to accommodate the interests and abilities of both sexes.” It further outlined this standard in its 1979 interpretation under the Three-Part Test, which clarified how a schools’ compliance with Title IX would be measured. However, the Cohen vs. Brown University case saw a shift in how courts interpreted the ambiguous language of the Three-Part Test, especially its third prong. The third prong of the test states that compliance will be met when “the interests and abilities of the members of [the underrepresented] sex have been fully and effectively accommodated” (Melnick, 99). Brown University, with its long history of promoting women’s athletics and high average of female varsity athletes, believed it had met the terms of Prong Three. However, in 1991 Brown was facing

financial problems and two men’s teams and two women's teams were reduced to club sport status in the ensuing budget cuts. When the issue was brought to court, the case hinged on the exact meaning of Prong Three. Brown argued that the OCR’s 1975 and 1979 rules meant that the abilities and interests of both sexes had to be “equally effectively accommodated” and showed evidence that female undergraduates at Brown simply had less interest in playing varsity sports (Melnick, 112). The courts, however, decided to adopt a literal reading of Prong Three, arguing that the lack of interest shown by female Brown students was simply a result of a history of discrimination and socially constructed stereotypes. As such, they argued that a survey could not be deemed evidence of compliance and the relative interest standard was, in practice, overcomplicated. Parity was further solidified by the OCR’s 1996 ‘Dear Colleague’ letter, which described Prong One as the only “safe harbor” for schools. According to the letter, compliance is met when “opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments” (Melnick, 99). This decision resulted in requiring universities like Brown to spend more money on female athletic programs and recruitment in an effort to achieve the parity standard. Over the past decade, the OCR has also turned its focus to public high schools to create more regulations with the intent to establish parity and combat socially constructed norms. This places undue pressure on schools in the form of broad mandates, fear of expensive investigations and settlements, and increased spending on athletic programs (Melnick, 128). This shift in the standards of equal opportunity exemplifies institutional leapfrogging, where a court relies on an agency's previous guidelines and then expands the regulatory demands while claiming that they have added nothing new to the existing statute. It’s worth noting that the ambiguous language of the Three-Part Test and its problematic underlying arguments could have been adjusted had the OCR gone through the Administrative Procedures Act with its 1979 interpretation. The relationship between the content of the OCR’s regulations and the formalistic features of government is deeply flawed and convoluted. The OCR neglects to follow the legal procedures for rulemaking, which deprives the agency from receiving critical input from experts and the opportunity to examine possible long-term consequences. The OCR has no real enforcement power of its own and therefore relies on the authority of the courts to give weight to its guidelines. The courts practice judicial deference. Thus the regulatory regime is expanded and shifted in ways that impose outsized and impractical demands on the regulated party based on flawed arguments about the nature of their very goal: equality. In practice, this flawed relationship has placed a broad mandate on the shoulders of universities and encouraged indiscriminate increases in spending on women’s athletics programs at the expense of projects benefiting libraries, labs and admissions opportunities for non-athlete students (Melnick, 135). The OCR and the courts have ignored the central question of what, exactly, the relationship between athletics and education should be and whether enforcing the parity standard of compliance truly benefits female athletes and students at all.

Some argue that procedures like the APA are mere formalities and the important thing is that the OCR establishes good policies. In response, I argue that these procedures are required for

a reason: the preservation of our democracy. Our legislative, judicial and executive branches have set up procedures like the APA to create a flow of power in the federal government that is subject to separation of powers and checks and balances. Without these vital components of our democracy, we would fall into tyranny. Additionally, it's also possible to argue that OCR has not done the right thing when it comes to creating equal opportunities for women in athletics. Athletics have become a major focus of Title IX regulation, at the expense of female undergraduate education. The growth of the intercollegiate sports behemoth has led to increased corruption, racial disparities, increased sexual harassment, rising tution costs, and a negative social and academic culture among athletes. The weight of these costs is mostly borne by the very women Title IX was designed to help (Melnick, 135). As with any issue, Title IX regulation of athletics has attracted the attention of many interest and advocacy groups, from women's groups, athletic organizations, lawyers associations, and the media. Many people associate Title IX regulation with sports and this assumption guides public opinion on the issue. A large contributing factor to the complexity of this issue is the uniqueness of the American college athletic system. College sports have become a huge part of college life as well as huge revenue streams for participating schools. This has created many parties with competing interests, each trying to protect their organization, profit margin, and sports. The growth of women’s athletics has created more opportunities for women but also more possibilities for associated advocacy groups to influence the regulatory process (Melnick, 84). In addition, all Title IX regulation focuses on varsity athletics, an incredible narrow focus encompassing very few students. This excludes club sports, intramural sports, and personal fitness programs, all of which are perhaps more compatible with a demanding academic schedule and female undergraduates’ levels of interest (Melnick, 140). At times, the media has also worked on the sidelines as part of the OCR’s enforcement strategy. Today, universities being investigated by the OCR or sued by a private party are more likely to come to an expensive settlement or agree to outsized and impractical measures such as increasing teams and spending on women’s programs. The threat of a long and complicated investigation or lawsuit, coupled with negative exposure in the media, can be an effective way for the OCR to enforce or even go beyond its Title IX rules. Today's media landscape, fraught with ideological bias and an eagerness to profit off the slightest hint of a scandal, is a major concern for school administrators looking to protect their institutional reputations. This effect can create a phenomenon of overcompliance as schools race to stay in the good graces of the OCR and the media.

A pivotal moment for athletic advocacy groups came in 1992 when the Supreme Court decided the Franklin vs. Gwinnett County Public Schools case. This case allowed private individuals to bring cases against schools whom they alleged had violated Title IX and granted them the ability to receive monetary damages as part of a settlement. This essentially allowed advocacy groups and public interest law firms to enter the regulatory process, enabling lawyers to expand the number of cases they could take on related to Title IX athletics. Attorneys could then use the ensuing payouts to bankroll the next case, creating a snowball effect of lawsuits. Franklin

had the unintended consequence of shifting most of the OCR’s enforcement power to the courts and giving advocacy groups undue influence over policy. Another example of advocacy groups influencing policy came during the Bush Administration's efforts to weaken the parity standard and create a more reasonable interpretation of the Three-Part Test. The Commission on Opportunity in Athletics pushed for the creation of surveys to measure student interest in varsity athletics. This initiative was shot down by the National Women's Law Center and the Women’s Sports Foundation on the basis that such surveys fail to measure female students’ “potential interest” (Melnick, 122). The NCAA, primarily interested in increasing its sponsored events and promoting its revenue streams from basketball and football, worked hard to promote female athletics and thwart any attempt to moderate the OCR’s regulations. These groups developed broad coalitions to oppose any efforts to deviate from the standards set down by the OCR and the courts that adhered to the parity standard. These groups have managed to overcome a collective action problem, effectively preventing any re-examination of Title IX athletics policy. It is in their interest to increase the expansion of competitive college varsity programs. It is much harder for groups who recognize the issues with the current athletics system to propose new regulations than it is for powerful advocacy groups to defend the status quo.

The disconnect between the substance of regulation of Title IX athletics and the formal power structure of government has created a number of unintended consequences and opportunity costs. The switch in the definition of equal opportunity from relative interest to parity has had a negative impact on education and imposed new costs on female athletes. In the past few decades, the Title IX regulation of athletics has been an unnecessarily complicated venture, losing sight of its true goal and falling victim to the boundless appetites of profit-seeking interest groups. Much of this could have been avoided had the Office for Civil Rights gone through the proper regulatory steps and considered the structure of our democracy.

Melnick, R. Shep. The Transformation of Title IX: Regulating Gender Equality in Education. Brookings Institution Press, 2018.

Mettler, Suzanne. “Chapter 1: Governance Unseen.” In The Submerged State: How Invisible Government Policies Undermine American Democracy, 8–30. University of Chicago Press, 2011.

Veracity Media. “Hands Off IX.” Know Your IX, 14 Aug. 2020. www.knowyourix.org/college-resources/title-ix/