It’s been 50 years since President Richard Nixon signed Title IX, the bill that prohibits sex-based discrimination in school or education programs that receives federal funding. Penn Today spoke with the University of Pennsylvania Carey Law School’s Jasmine Harris to look at the law through a disability lens. Harris is a law and inequality legal scholar with expertise in disability law, anti-discrimination law, and evidence. Her work seeks to address the relationship between law and equality with a focus on law’s capacity to advance social norms of inclusion in the context of disability.
“We should celebrate the fact that Title IX has resulted in much greater equity and inclusion, but where we are 50 years later is trying to understand what meaningful access looks like for women, for individuals with disabilities, for individuals identifying as trans,” Harris says. “It's not a simple binary of women and men in the sexual constructs that we thought of 50 years ago.”
Harris shared five thoughts on Title IX and disability and where the law should go from here.
Campus sexual violence, sexual assault, and disability
When we see sexual violence and sexual assault through a disability lens, we understand that the victims of sexual assault tend to be disproportionately women and disproportionately women with disabilities. Students with disabilities are almost three times more likely to be sexually assaulted than their peers. That’s a sobering statistic when you think about how often sexual violence occurs overall. For example, in college, one in three disabled women is sexually assaulted compared to one in five women without disabilities.
When I say disability, I don’t mean the kind of narrow view of visible disability often represented as a wheelchair user or someone with a physical impairment. I mean it broadly, because disabilities can include less apparent disabilities such as depression or anxiety and different degrees of functional impairment. It’s important that Title IX’s implementation and enforcement accounts for this disproportionate impact. Similarly, when we discuss sexual violence and disability the “where” is much broader than college campuses; these conversations must address sexual assault and violence at the elementary school and high school levels.
Title IX compliance complications surrounding disability
Title IX has a broad anti-discrimination mandate and an interesting compliance structure. Congress charged the Department of Education with Title IX’s broad enforcement. However, trying to understand local practices and culture becomes important in terms of Title IX compliance. What are the policies and practices of compliance? How do they account for disability such as disabilities of those alleging discrimination in the complaint or investigation process? For individuals with sensory disabilities, for example, how is the compliance process explained? Are websites or telephone lines accessible? What supports are in place for complainants who may experience disability (such as anxiety, depression, or suicidal ideation) as a result of sexual violence?
The question is how institutions respond. What are the academic leave policies in place? What are the withdrawal policies for the students and how does this affect financial aid, and also their academic record? As a professor of a graduate school who understands the admissions process, and the professional licensing requirements, I know that these things matter.
When we talk about Title IX, it’s often seen as very narrow, but when you apply a disability lens, you see this is affecting a much broader swath of students, and it has implications down the road for whether they complete college, whether they’re pushed out formally or informally, and whether they go on to higher education and professional careers.
Sports and disability
We often think of sports and Title IX, but we don’t often think of sports and disability. Those things seem contradictory in people’s minds, because people assume the presence of disability itself is disqualifying. Applying a disability lens to Title IX allows us to question conceptions of who’s an athlete and our aesthetic perceptions of what sports means. What we think about in terms of Title IX sports issues are things like women receiving less financial support, less media coverage, the disparity between the men’s NCAA locker rooms and the women’s locker rooms.
But there are major disability issues that are not being thought about in a systemic way. For example, think about the concept of mental toughness. Sports is all about that kind of physical grace and mental toughness, which is seen as contradictory to the notions of disability that we have. That means that there's an incredible mental health crisis throughout sports and education and it’s something that has been stigmatized, something that people have not discussed, because it seems antithetical to conceptions of high-achieving athletes.
But then you see people who are the highest performers like Simone Biles at the Olympic level who then comes forward and says “I’m not going to compete. I’m going through a mental health crisis,” and she’s completely demonized for that, rather than celebrated for that strength. She has talked about how that’s part of the culture of athleticism and sports and in particular what women experience from elementary school and beyond. This notion of mental toughness and athleticism go hand in hand, and she struggled with anxiety with depression at various points and had to cover that up.
When we talk about Title IX, it’s not just about having men and women get equal access. It’s much more nuanced, much more complicated, and the concept of meaningful access is the key here. Simone Biles may have been the highest performer in the world, but her disabilities were not understood or appreciated or accommodated. That’s a big flaw with respect to how Title IX is implemented and enforced.
Disability and the trans connection
With respect to trans and sports, the conversation is incredibly politicized. But I want to take a step back and talk about it through a disability lens. The Supreme Court heard a case in 2001 from golfer Casey Martin. He had a circulatory disability that would lead to life threatening blood clots if he walked for long periods. Throughout his early sports career, he had as a reasonable modification and was allowed to use a golf cart to go from hole to hole. At the PGA final level, he could not use that golf cart, because the PGA Tour claimed that it was a fundamental alteration, that the fatigue itself was part of the competition and the rigor of the game.
The Court, in its discussion of whether the cart was “reasonable,” talked about the malleability of rules, and how, in some respect, all rules of sports are constructed. Someone just came up with them and perhaps there are some that are less fundamental than others. They had to determine what was the essence of golf. And one really neat thing about the conversation that the Court was having around access was looking at what was the objection to the use of the cart—it was that it was an unfair advantage. These are the objections that are at the heart of trans access to sports, and the Court was saying, you have to think about and define the essence of the sport itself, whether it’s golf or track or any sport. We need to recognize these rules can be themselves completely arbitrary and come to a consensus as to what the central “essence” of the sports program is and then accommodate around it. Are those things that are fundamental to the sport maybe less flexible, but everything else can be accommodated?
Although the Court wasn’t talking about trans access, the analysis of accommodation should apply in the Title IX context. Disability offers that opportunity for innovative thinking and creative problem solving that Title IX is going to require for the next 50 years.
The remedial power of Title IX
Title IX was revolutionary 50 years ago. It changed, quite literally, the face of education. But I also recognize that my job as a legal academic is to look 50 years beyond this moment. The law is a blunt instrument and when we talk about anti-discrimination laws like Title IX, it requires some mental gymnastics to say people are discriminated against because of a single axis of identity.
Disability operates as an intersectional analytical point. For example, Simone Biles is a woman, she’s a Black woman, and she’s also a person with a disability. Understanding that the law can remedy one of those things is important, but the future of Title IX is going to require us to see how the law needs to recognize that intersection of multiple axes of discrimination and not try to play the game of “why were you discriminated against?” There's no way, in terms of neuroscience or otherwise, for us to pinpoint that exact moment of discrimination and why people discriminate.
The future of Title IX is going to require us to think about institutional redesign, and innovation and disability has a lot to say about both. How do we from the start create policies that don’t fall prey to that “why were you discriminated against? Was it X, Y, or Z?” way of thinking. Law is an important expressive tool. It’s an important remedial tool. But we need to contend with these problematic norms because the laws are only as good as the people who are going to be on the ground as foot soldiers enforcing the laws themselves. If you have a compliance team that is made of one individual who doesn’t have the tools to be effective, doesn’t have the pocketbook or the policy space to do the work that’s necessary, then the law falls short.
Although today’s debates seem to suggest a more complex world, identity and discrimination have always been complicated. What we have now, in part due to laws like Title IX, is the ability to have these discussions publicly about identity. Disability is a part of that conversation and if we don't pay attention to it, the promise and intent of Title IX will remain unfulfilled.
