45 Pages Posted: 26 Nov 2008
The question of how law should respond to women who become pregnant, and whether to specially accommodate pregnancy or analogize it to other conditions, features prominently in virtually every area of sex equality law. In debates over women's equality in the workplace, for example, it has been the defining issue for the development of and debate over various models of equality in feminist legal theory. Until recently, however, the issue has been all but absent in debates and discussion about Title IX and its promise of sex equality in sports. This changed suddenly in 2007, when ESPN televised a program depicting the struggles faced by college athletes who become pregnant and risk losing their athletic scholarships. Shortly thereafter, the Department of Education's Office for Civil Rights issued a policy letter interpreting Title IX to provide a strong set of rights to pregnant athletes, including the right to keep athletic scholarships. This article explores Title IX's approach to pregnancy discrimination and evaluates the cultural changes and legal choices that made this success possible. The article argues that by adopting an approach that draws from both "accommodation" and "equal treatment" models of equality, Title IX takes a blended approach that is preferable to either model in isolation. While the article contends that Title IX provides relatively strong protection for athletes who become pregnant, it concludes by examining some limitations on Title IX's ability to promote progressive social change on this and related issues of sex equality in sport.
Keywords: pregnancy, athletes, Title IX, feminist legal theory
Suggested Citation: Suggested Citation
Brake, Deborah L., The Invisible Pregnant Athlete and the Promise of Title IX. Harvard Journal of Law and Gender, Vol. 31, p. 323, 2008; U. of Pittsburgh Legal Studies Research Paper No. 2008-32. Available at SSRN: https://ssrn.com/abstract=1307157