(Photo: Toni St. Pierre, second from left, sought to join the boys' cross-country ski team and cross-country running team in 1972-73 because Hopkins Eisenhower High School had no teams for girls. Minnesota Historical Society photo.)

 

Among the girls who loved to run and excelled at doing it was Toni St. Pierre, age 17, who asked to join the cross-country running team at Hopkins Eisenhower High School in Minnesota for the 1972-73 season because there were no girls’ teams. St. Pierre also asked to join the boys’ cross-country skiing team for the same reason.

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If she wanted to keep running and skiing, joining the boys’ teams was her only option. So she asked. The school rejected the requests based on a Minnesota State High School League rule that banned girls from boys’ sports.

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Toni’s parents did not take no for an answer. With help from the American Civil Liberties Union, Toni’s parents sued the High School League in federal court. They joined forces with the parents of Peg Brenden, a girl who tried but failed to join the boys’ tennis team in St. Cloud, Minnesota.

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The student-athletes and their parents won the case. To do so, they had to break new legal ground under the United States Constitution because Title IX was still a few months away from being signed into law. Their only legal tool was the legal precedent of Reed v. Reed, the case Ruth Bader Ginsburg helped win.

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The Minnesota lawsuit pitted the girls’ parents against their school districts and the Minnesota State High School League. The case, officially captioned Brenden v. Independent School District No. 742, was assigned to United States District Judge Miles Lord.

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By then, Judge Lord had developed a reputation in Minnesota and beyond as a jurist who did not hesitate to protect the rights of individuals over corporations and other organizations. His best-known rulings came in litigation involving the Dalkon Shield, a contraceptive device linked to the deaths of more than a dozen women.

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His involvement in the Brenden case is lesser-known. However, a Judge Lord biographer, Verna C. Corgan, has compiled authority indicating he considered the case of Toni St. Pierre and Peg Brenden the most-important of his career.

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With Title IX not at his disposal, Judge Lord turned to the United States Supreme Court’s interpretation of the Fourteenth Amendment’s Equal Protection Clause. The source of the law Judge Lord was bound to apply was clear. Judge Lord wrote: “In determining whether the application of the rule to Peggy Brenden and Tony St. Pierre is a valid application, the Court is governed by the principles recently set forth by the Supreme Court in Reed v. Reed.”

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Judge Lord acknowledged the physiological differences between girls and boys but explained St. Pierre and Brendan excelled regardless of their gender.

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“There has been no evidence that either Peggy Brenden or Tony St. Pierre, or any other girls, would be in any way damaged from competition in boys’ interscholastic athletics,” Judge Lord wrote, “nor is there any credible evidence that the boys would be damaged.”

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The other side’s best argument was that if Judge Lord ruled in favor of the girls and their parents, he would short-circuit potential efforts to add girls’ teams in high schools. The judge dismissed the argument as a “vague and undocumented fear.” By order of the federal court, St. Pierre and Brendan were to be included on the boys’ teams.

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Judge Lord’s decision in Brendan v. Independent School District No. 742, issued May 1, 1972, was slightly ahead of its time. A month after Judge Lord’s ruling is when Title IX took effect. And a year after that, a three-judge panel of the Eighth Circuit Court of Appeals considered the Brendan case.

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On appeal, the Minnesota State High School League revived its failed theory that excluding girls was justified “in order to assure that persons with similar qualifications compete among themselves.”

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Measured by today’s standards, the factual basis for the exclusion had a grossly sexist flair.

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An expert witness hired by the High School League said girls should be excluded from cross-country running because men “utilize oxygen more efficiently than women” and run faster “based upon the construction of the pelvic area, which when women reach puberty, widens, causing the femur to bend outward, rendering the female incapable of running as efficiently as a male.”

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The State High School League’s theory was reminiscent of the “separate but equal” rationale racial segregationists used in the 1950s to justify keeping children of different races apart at school.

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The comparison to racial segregation was not lost on the three-judge panel of judges who considered the appeal in Brendan. In their written decision, they drew reference to Brown v. Board of Education, the landmark case where the United States Supreme Court outlawed the “separate but equal” rationale.

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In Brown, the court invalidated the idea schoolchildren could be separated based on race as long as their segregated schools provided equal educational opportunities. As in Brown, the Minnesota State High School League’s position took on a discriminatory flair.

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However, there was a key difference, one that would deepen in subtle ways in the sport of running over the next 50 years. There simply was no “separate” cross-country team for Toni St. Pierre to join. For her, it was the boys’ team or no team. Untold numbers of girls across the country faced the same dilemma.

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The three men on Eighth Circuit’s panel of judges (a woman would not serve on the court until 1994) approached the State High School League’s gender-based exclusion as if it was a segregationist theory and rejected it just as the United States Supreme Court had rejected one in Brown.

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The ruling was unanimous. With the ruling, the Eighth Circuit’s judges made it clear there was a need for education not only of student-athletes but also of expert witnesses and other men whose time had come to confront gender-based assumptions.

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“We recognize that because sex-based classifications may be based on outdated stereotypes of the nature of males and females, courts must be particularly sensitive to the possibility of invidious discrimination in evaluating them, and must be particularly demanding in ascertaining whether the state has demonstrated a substantial rational basis for the classification,” the court wrote. “This is especially true where the classification involves the interest of females in securing an education.”

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The preceding two sentences were written by Judge Gerald Heaney. Joining him in the unanimous ruling was Donald P. Lay, himself a college athlete (and, as it turned out, one of my law school professors in 2000-01).

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Judges Heaney and Lay were strong advocates for civil rights. After they died, the New York Times credited both for their work. Judge Lay in particular was remembered as a judge who “rigorously defended the rights of women.” The third judge on the panel was Roy Laverne Stephenson, who would reaffirm the decision in a similar case a decade later.

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According to the three-judge panel, Judge Lord was right to use the Constitution’s Equal Protection Clause to order inclusion of Toni St. Pierre and Peg Brendan on the boys’ athletics teams.

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The case did not receive further review in the United States Supreme Court. Therefore, with the Eighth Circuit Court of Appeals’ ruling in Brenden v. Independent School District No. 742, girls and women had won a constitutional right to run.

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The effects of the Eighth Circuit’s Brendan decision, issued in 1973, were felt across the country. A commentator in the Texas Law Review recognized the case’s outcome as reflecting “the new national policy against sex discrimination in education.”  Later that year, a judge in Kansas cited the case to invalidate a Kansas rule that was used to ban a girl from her first cross-country meet.

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Title IX had been in effect for about 10 months at the time the appeals court issued its decision in Brendan. Still, not everyone could run. Girls still faced legal barriers to full participation in high school sports.

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In 1976, the Eighth Circuit revisited the issue in a Nebraska case in which Isla Bednar, a tenth-grade runner at Johnson-Brock High School in Nebraska, was denied access to the boys’ cross-country team.

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Judges Lay and Stephenson again heard the case and were on the panel that again ruled unanimously in the girl’s favor. (The third judge was William H. Webster, who went on to be director of both the FBI and CIA.)

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The Nebraska School Activities Association’s rationale for excluding Bednar was a bit different from what the Minnesota association claimed. The Nebraska group’s theory was that cross-country teams were limited to five runners for district and state meets and Bednar was not among the five fastest runners. The theory was, she was to be excluded for that reason.

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When confronting the argument, the judges acknowledged Bednar was not among the top five runners in the one-mile and two-mile distances. However, as they pointed out, “in two 2.5-mile races, Ilsa beat one of the boys on both occasions, once by more than two minutes.” Faced with that evidence, the court found “no merit” to the association’s position.

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With that victory, along with the ones in Minnesota and Kansas, the ability of girls and women to run toe to toe with boys and men was not only recognized, it was legally required. Assumptions were successfully challenged.

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By 1976, the year of the nation’s bicentennial, girls and women were solidifying their constitutional right to run.

 

SEPARATE BUT EQUAL?

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Title IX added a new dimension to scholastic sports in general and running in particular. The law required schools to provide equal opportunities regardless of gender but did not require schools to provide equal access to existing teams.

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By contrast, legal precedent from the Equal Protection Clause was built on the principle that people deserved equal access to existing classrooms, hotels, lunch counters—and, in the case of Toni St. Pierre, the boys’ cross-country team.

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In the 1970s, schools and their governing associations were faced with a dilemma. Do they follow the plain language of the Title IX law, which authorized schools to create separate teams? Or do they follow the United States Constitution and provide equal access to existing teams?

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By and large, they chose the former path. Girls’ track-and-field and cross-country teams were added while boys’ teams were maintained. 

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Away from schools, though, the sport was evolving somewhat differently. The Boston Marathon welcomed women as registered entrants in 1972 as part of the running boom. In 1977, the Boston Athletic Association adopted different time-qualifying standards for women and men, but in the same race.

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In some ways, the Boston Marathon’s decision occupied a middle ground between providing equal access to an existing event but with separate qualifying standards. The decision was driven by supply and demand as much as anything. Races and retailers were in the business of finding ways to admit women as participants because women wanted to run.

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The market for women’s running had been building. In 1972, a manufacturer of women’s shaving gel co-sponsored the “Crazylegs Mini Marathon,” regarded as the first women’s-only road race. (It evolved into the present day’s New York Mini 10K.)

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Six years later, attention turned to marathons. As Pamela Cooper explains in her book The American Marathon, Avon Products, Inc. retained Kathrine Switzer to help develop women’s-only running events. One result was the 1978 Avon Marathon-International Women’s Championship in Atlanta, regarded as the first women’s-only marathon.

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Our sport was starting to develop its two-within-one flavor: one set of events and rules for men, others for women. Occasionally, men who ran asserted constitutional rights too, and won.

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After Palm Beach, Florida enacted an ordinance in 1979 that prohibited being topless away from a beach, a runner (and lawyer) who wanted to run shirtless successfully challenged the law as unconstitutional. Said the Eleventh Circuit Court of Appeals: “The Town has not suggested how a few male, shirtless joggers would adversely affect real estate values, and our most creative imagination cannot conjure up any rational way.” 

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By and large, differentiating between the genders was accepted if not celebrated at the end of the 1970s. Age differentiations soon followed. In 1981, the Boston Marathon introduced a “masters” category for runners 40 and older, the result being that men 40 and older received a 20-minute time break on their qualifying time and women received another 10 minutes.

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Increasingly, running came to be defined by categories—age groups, different time-qualifying standards, and sometimes different events. Were the categories legal? By and large, they were legal because runners agreed to separate themselves and there was no malice or discriminatory motive.

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The theory is, the law lets us voluntarily surrender our constitutional rights in a lot of situations. Sports fans at stadiums give up not only their Fourth Amendment rights to not be searched, but also their First and Second Amendment rights by agreeing not to bring in banners of a certain size and to leave firearms behind.

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Those who do not agree with the searches and bans have the option of staying home. Sports fans do not have a “right” to attend a game, even in a public stadium, any more than an airline passenger has a “right” to bring a pistol on board or give a political speech in midair.

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As runners, we have a “right” to expect the government will treat us equally regardless of gender. But when we voluntarily separate ourselves by gender and age, we give up our Fourteenth Amendment rights to equal protection of the laws. The government cannot compel us to give up those rights but we have the freedom of doing so on our own. And, in the 1970s and early 1980s, a lot of us did.

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Yet, some legal tensions lingered. Those tensions intensified in the leadup to the 1984 Summer Olympic Games in Los Angeles.

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The 1984 Olympics were a watershed event for running because a women’s marathon was held for the first time.

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However, the Olympics lacked equal opportunities for women in shorter distances. In 1983, dozens of the top women in running filed a lawsuit in California asking a judge to order the International Olympic Committee to add women’s 5,000-meter and 10,000-meter events to the 1984 Olympics.

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The Fourteenth Amendment’s Equal Protection Clause was not well-suited to the women’s case because the constitutional provision applies only to restrain the acts of government. The Olympics were and are a private entity. Title IX did not apply because the Olympics are not a school.

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The women turned from federal law to focus on state law instead, in particular the California Unruh Civil Rights Act, which requires equal access to “accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

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Most states have laws similar to California’s. Unlike most federal constitutional provisions, the state laws are targeted toward private business. Most often, the laws are triggered when people are denied access to stores, apartments, recreational establishments, and other businesses for reasons based on gender, race, religion, and in some states gender identification and sexual orientation.

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In 1983, the question was: Is the Olympics enough of a business to fall within the state law’s scope?

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It was a difficult question, one that forced three judges on the Ninth Circuit Court of Appeals to confront what they characterized as the separate-but-equal aspects of running.

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Two of the judges found the runners’ position problematic because the Olympians did not seek equal access to men’s events but instead asked the court to compel the Olympics  to add separate events for women.

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“We simply do not read the Act to compel the creation of separate but equal events for women,” the judges wrote in Martin v. International Olympic Committee.

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A dissenting judge, Harry Pregerson, vigorously disagreed. He advocated that the United States, through its courts, should lead the way by using the world stage in Los Angeles to demonstrate equality and inclusion for women.

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“When the Olympics move to other countries, some without America’s commitment to human rights, the opportunity to tip the scales of justice in favor of equality may slip away,” he wrote. “Meanwhile, the Olympic flame—which should be a symbol of harmony, equality, and justice—will burn less brightly over the Los Angeles Olympic Games.”

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Judge Pregerson’s dissent drew a strong response from Judge Arthur Lawrence Alarcón, who warned judges against using their power to order “separate but equal” events for women. He cautioned that ruling in favor of the runners would “turn back the clock to a time when ‘whites only’ signs separated this nation in our use of hotels, restaurants, restrooms, drinking fountains, and bus seats.”

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It was strong language, reminiscent of decades of civil-rights struggles. Judge Alarcón was sympathetic to the women’s request but warned against the long-term effects.

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According to the judge, the athletes’ “short-term disappointment should not blind us to the harm which would follow if the courts were now to interpret legislation, enacted to end class-based discrimination, to require a business establishment to offer separate accommodations, privileges, advantages, or services.”

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Judge Alarcón continued: “Such an apartheid construction of California’s Civil Rights Act would raise serious constitutional questions under the equal protection clause.”

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The judge saw the separate-but-equal scheme as dangerous territory for athletics and track-and-field, one that worked against the Equal Protection Clause’s goals of equaling access regardless of race, ethnicity, gender, or other classifications.

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For Judge Alarcón, the work in Minnesota of Toni St. Pierre, her parents, and Judges Lord, Heaney, and Lay had not been lost. Judge Alarcón cited Brendan v. Independent School District No. 742 as a reason why the court could not and should not compel the Olympics to add events for women.

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Judge Alarcón was in the 2-to-1 majority in Martin v. International Olympic Committee. That was the final ruling and the case was not considered by the United States Supreme Court. As a result, the 1984 Olympics had no 5,000-meter and 10,000-meter events for women.

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However, the divided decision highlighted a fundamental legal tension in the law of running. On the one hand, there were good reasons—constitutional reasons—to ensure women had equal access to existing events. On the other hand, there were equally good reasons to add events for women.

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Which path would the law of running choose? By and large, it chose what we ourselves have chosen: a sport that oftentimes is more separate than equal.

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In 1988, the Olympics added a 10,000-meter running event for women. A 5,000-meter event for women came in 1996. Separate events for women became a fact of life for runners ranging from sprinters to marathoners.

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Today, many in our sport have come to accept, expect, and even celebrate separating ourselves by age and gender. The law of running largely lets us do our thing.

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Why? There are three interrelated reasons.

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First, unlike in the context of school segregation, the government plays no role in separating us by age and gender so the United States Constitution has limited applicability. Second, the categories are not imposed with a malicious or discriminatory motive. Third, runners agree to the arrangements every time we sign up for races. In a sense, the agreements are like the exculpatory clauses in the gym contracts and race-registration forms where we give up the right to sue.

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Furthermore, just as schoolchildren were conditioned to use crosswalks in the 1920s, generations of today’s runners have been conditioned to accept and celebrate the categories in our sport. It starts with “kids only” races, sometimes held in conjunction with events their parents or grandparents are running. It continues in high school where rules of competition typically exclude participants once they turn 19 or 20.

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After high school, age categories are not only tolerated, they are required. If a race wants to adhere to USA Track & Field guidelines, it must maintain age divisions with five-year spans.

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Time-qualifying standards differentiate by age, too. Once a marathoner turns 35, it becomes slightly easier to get into the Boston Marathon. Events such as the National Senior Games exclude participants younger than 50.

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Age and gender categories can be motivating factors for many runners who participate in races. A 2016 article in Women’s Running Magazine provides “5 Reasons To Celebrate Moving Up To The Next Age Group.” As the article explained, “being on the young end of the age group has its benefits. Better to be 40 racing against the 49-year-olds than 39 and racing the 30-year-olds! Embrace it.”

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Separating the genders also starts early with programs such as Girls on the Run. Again, the law of running largely stays out of the way as proponents stress the benefits of sometimes keeping the genders separate.

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“Evidence shows Girls on the Run makes a stronger impact than both organized sports and physical education in teaching life skills that benefit girls at home, at school and with their friends,” the group’s website explains. “Results show our program inspires and empowers girls to build healthy physical and mental habits that last long beyond the program.”

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Besides women’s-only races, women’s-only gyms were popular for many years. In some states, anti-discrimination laws were amended to specifically allow women’s-only facilities on the theory gyms are more like locker rooms than public spaces, and therefore they can be segregated based on gender.

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Well into the 21st century, the law of running has tolerated and even encouraged separateness in our sport, in pursuit of the yet-to-be-fulfilled goal that anybody can run. 

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The law of running continues to evolve regarding gender issues in sometimes controversial ways. Michael J. Lenzi confronts some of them in a 2018 American University Law Review article titled “The Trans Athlete Dilemma: A Constitutional Analysis of High School Transgender Student-Athlete Policies.”

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As Lenzi explains, the International Olympic Committee permits trans men to participate in male categories “without restriction” while requiring hormone therapy for trans women. The National Collegiate Athletic Association has a similar policy.

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The associations that govern high school sports risk being targets for litigation because according to Lenzi they “have adopted inconsistent trans student-athlete policies” that make them “vulnerable to potential lawsuits.”

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For example, Alabama and Texas look to student-athletes’ birth certificates to determine their gender for competitions. Washington and Connecticut permit transgender student-athletes to compete in categories consistent with their identified gender “in virtually all circumstances.” Idaho and Ohio have policies that fall somewhere in between.

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Stay tuned. Legal principles that govern access to running based on gender are evolving day by day.

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To that end, law professor Nancy Leong poses a controversial question: Has the time come to eradicate gender classifications entirely in some events?

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She makes a case for it in her 2018 Washington University Law Review article titled “Against Women’s Sports.” Professor Leong points to Courtney Dauwalter, who won the Moab 240 Mile Endurance Run in 2017 with a time of 57 hours and 52 minutes. The runner in second place was a man who finished more than 10 hours after her.

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Why, Professor Leong wonders, are we continuing to separate men from women when in several situations the latter outperform the former?

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It is a question with no easy answer, under the law of running or otherwise.