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Hanging outside my door at the law school is a newspaper clipping: a photo of me and several other women after an ice hockey game, with the headline, “Women Enjoy Playing Hockey.” I didn’t hang it up because I was proud of the picture (from my expression, it looks as if we lost the game). I hung it up because I liked the headline. I try to select items for my bulletin board that are thought-provoking, and it seems that “women enjoy playing hockey” is still a thought-provoking, if not provocative, idea, even in 2003. I know it’s thought-provoking because every time I mention that I’m learning to play hockey, the reaction, in a word, is, “Really?!” I know it’s thought-provoking because every time my five- and seven-year-old daughters get “geared up” for hockey practice (yes, they also play), they draw quizzical glances from onlookers at the Iowa City rink, and sometimes also the direct comment, “I didn’t know girls played hockey.” And I know it can be a provocative idea because even in Boston, the hockey-crazy town where I first began to play, a high-scoring nine-year-old can hear under-the-breath jeers of “Dumb girl!” after she shoots a goal — jeers coming from the boys on her own team, you understand, not the other team. Well, that last story’s a shame, you say, but what’s your point? It’s simply this: Under these circumstances, it’s hard to know whether girls have a “natural” interest in playing hockey that equals boys’ “natural” interest. Or to generalize: It’s hard to know what girls, and women, want. Now please read this closely: I’m not suggesting that girls and women are not in touch with their true feelings or lie to themselves about their inner desires. But I am suggesting that our interests, desires, and goals are affected by social conditioning — conditioning that differs along gender lines. To go back to my hockey example: It’s possible that most girls don’t like to play hockey because they are genetically programmed not to enjoy it as much as boys do. But it is also possible that the average girl would be as interested in playing as the average boy if she encountered less surprise and more acceptance, fewer jeers and more cheers. THE RUSH ON THE ICE After all, if you had asked me several years ago if I had any interest in playing hockey, I probably would have laughed. I had never thought of it. Indeed, I had never thought of playing any team sport — I’m too short for basketball and a bit too old for the soccer explosion. I began playing hockey because an opportunity, in the form of an adult beginner clinic, finally presented itself. My husband, a longtime player, convinced me that hockey was good exercise for aging tendons. At first I liked the clinic’s skating drills, but didn’t really enjoy scrimmaging. Nor was “enjoyment” the right word for how I felt during my first real game. (“Terror” is more like it.) And yet when I recently heard several men discussing how much they enjoy the sheer competitiveness of a game (the rush of “going to war” on the ice, as one put it), I suddenly found myself agreeing. Apparently, I was wrong to think that I didn’t enjoy competitive sports. It wasn’t that I didn’t enjoy competition — it was that I didn’t enjoy competitive sports in which I could not (yet) compete. Now that I’ve had a chance to become a better player (not good, mind you, just not quite as lousy), one of my favorite parts of the game is fighting for the puck along the boards — probably the most physical part of the game in a noncheck league. Who would have thought? ‘JUST NOT INTERESTED’ But why does this matter? It matters because such stories — such facts, I should say, about real girls and real women in the real world — undercut the “interest argument” against gender equity in sports. The interest argument has long been made by employers in Title VII “pattern and practice” cases — employers like Sears, which argued that its sales jobs were sharply segregated by sex because women were “just not interested” in the higher-paying commission-based jobs. Surveys conducted by Sears purported to show that women rejected the higher-paying jobs because they disliked ” ‘dog-eat-dog’ competition,” were “ uncomfortable or unfamiliar with the products sold on commission,” and, more generally, were fearful of “being unable to compete, being unsuccessful, and of losing their jobs.” In light of these results, the court found Sears innocent of disparate treatment. EEOC v. Sears, Roebuck & Co.,628 F. Supp. 1264 (N.D. Ill. 1986), aff’d,839 F.2d 302 (7th Cir. 1988). The Searscourt was not considering the disparate impact question (whether the employer’s choices as to job requirements, pay structures, and so forth had an unfair impact on women), nor was it addressing the broader moral question (whether society ought to alter the social conditioning that affects women’s “choices”). On the narrow question of intentional discrimination, the court’s conclusion made sense: Why hold the employer liable for creating a segregated work force if evidence suggests that employees are choosing to segregate themselves? WHAT’S FAIR? Contrary to what you might think, this argument does not transfer easily to Title IX. Among other things, Title IX requires educational institutions to provide equal athletic opportunity to both sexes. Here, intent to discriminate is not an issue: Schools are allowed and indeed expected to treat men and women differently, by having unisex teams and by offering different sports programs to each sex. But the programs must be “equitable.” Historically, the Department of Education, through its Office for Civil Rights (OCR), has applied a three-part test to assess whether a school has an equitable program. The first question is whether men’s and women’s participation in sports is “substantially proportionate” to their enrollments. If so, the school is in compliance with Title IX. If not, it can demonstrate compliance in one of two other ways: It can show a continuing practice of program expansion for the underrepresented sex, or it can demonstrate that “the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.” The latter test has always been strictly interpreted. As the OCR explained in its 1996 letter clarification ( www.ed.gov/offices/OCR/docs/clarific.html), a school can only prove compliance under the third prong if it can show, in essence, that there is no sport that it could possibly add to its program for the underrepresented sex because there is insufficient interest, ability, or competitive opportunities for any proposed addition. This makes sense: If a school does not have “substantially proportionate” athletic opportunities, it should not be able to fall back on a lack-of-interest defense unless lack of interest really explains the disparity. But some schools have argued that the test ought to be conceived differently: that a school should escape liability under Title IX as long as student surveys show that the same proportion of women’s interests are being met as men’s. Under this reading of Title IX, the more men who can imagine themselves as varsity athletes — � la Walter Mitty — the less likely it is that the institution’s disproportionate programs offend the statute. MINORITY VIEWS Courts have wisely rejected this “interest survey” defense. But proponents have not given up. They turned to the Department of Education, presenting their argument in favor of the interest survey defense to the Commission on Opportunity in Athletics, which was created in 2002 to consider possible changes to Title IX. The commission recently submitted its final report ( www.ed.gov/inits/commissionsboards/athletics) to Secretary of Education Rod Paige. The secretary announced that he will consider adopting all unanimous recommendations in the report, including the following: “The Office of Civil Rights should study the possibility of allowing institutions to demonstrate that they are in compliance with the third part of the three-part test by comparing the ratio of male/female athletic participation at the institution with . . . interest levels indicated in surveys of prospective or enrolled students.” Readers who have followed the news may wonder why this particular recommendation was unanimous: Why didn’t Commissioners Donna de Varona and Julie Foudy — both prominent female athletes and proponents of strict Title IX enforcement — object? Given enough time to consider the implications, they did object, but they were not permitted to include their views in the official report. Their “minority views” report is not available on the Department of Education’s Web site, but it can be accessed at www.womenssportsfoundation.org. Although de Varona and Foudy are actually defending the status quo (that is, the OCR’s traditional interpretation of Title IX), “minority views” may not be a misnomer for their report. Many observers seem taken with the idea of an interest survey defense to Title IX. This isn’t surprising. The idea is superficially appealing: Why notjust ask women what they want? If they have less interest in playing college sports than the men, then it can’t be inequitable to offer them fewer opportunities to do so. GETTING FEEDBACK Actually, I think this is a perfectly reasonable argument — or at least, it would be if we could accurately measure women’s “natural” interest level, independent of any social conditioning. But the fact is that we aren’t able to do that, because the stories of social conditioning I related above are not out of the ordinary, they’re the norm. Numerous studies have demonstrated the ways in which boys and girls continue to be conditioned to choose traditional roles and activities. (For an accessible overview, see Virginia Valian’s 1998 book, Why So Slow? The Advancement of Women.) It seems that much, if not most, of the social conditioning arises from unconscious schemata or stereotypes — but this doesn’t render it any less effective. Indeed, because it’s less obvious to everyone involved, it may actually be more effective. One 1990 psychology experiment showed, for example, that even subjects who were egalitarian in their conscious attitudes consistently rated female leaders as less able, skillful, and intelligent (and more irritating) than male leaders, even though the male and female leaders in the experiment had been trained to follow an identical script and exhibit the same behaviors. More importantly, perhaps, the experiment found that these attitudes were consistently conveyed, via subjects’ facial expressions and body language, to the other participants in the experiment, including those acting as leaders. It’s easy to see how a steady stream of such feedback could discourage women from taking on leadership roles. Consciously or unconsciously, women know that others are somehow put off when they act as leaders. It’s logical for women to draw the false conclusion that they lack leadership skills. If women then seem less interested in being leaders, or doing other “typically male” things, we shouldn’t be surprised, and we certainly shouldn’t conclude that these differences must be innate. NATURE OR NURTURE? This latter point is really the converse of the argument made in MIT professor Steven Pinker’s widely acclaimed 2002 book, The Blank Slate: The Modern Denial of Human Nature.Pinker argues, quite rightly, that we can’t ignore scientific evidence of innate gender differences (such as men’s greater ability, on average, to perform 3-D mental rotation) out of fear that any such differences limit our ability to adopt a progressive social agenda. As Pinker explains, “[E]quality is not the empirical claim that all groups of humans are interchangeable; it is the moral principle that individuals should not be judged or constrained by the average properties of their group.” By the same token, however, we should not ignore the continuing influence of social conditioning just to emphasize the possibility of innate differences. I’m afraid that Pinker himself, in an otherwise well-reasoned book, commits this error. As evidence of innate gender difference, for example, Pinker cites a study of mathematically talented seventh-graders, in which the girls and boys reported having different interests (the girls in “social values,” the boys in “theoretical values”) and ultimately followed different career paths (with more girls becoming doctors, and more boys becoming mathematicians and engineers). What does this tell us about the way boys and girls are genetically programmed? Nothing actually, as long as social conditioning is still an alternative explanation. Pinker’s reliance on “massive surveys of job-related values and career choices” is equally misplaced. Do the differences between men’s and women’s responses provide evidence of innate gender differences? As a scientifically minded feminist, I must grant that they might — but the surveys could just as easily show the continuing influence of social conditioning. Contrary to Pinker’s rather snide reference, such surveys are not “stud[ies] in which men and women actually say what they want rather than having activists speak for them.” Indeed, this is the very point that activists have been making: Until we somehow manage to eliminate gender-specific social conditioning, we can’t use surveys to identify men’s and women’s “actual,” innate interests. So what would the average woman or girl want, if she weren’t being subtly steered toward traditional roles and activities? We need to be humble enough to admit that we don’t know. But while the scientists are out on that question, let’s make sure that we don’t underestimate the possibility that she would enjoy being a leader, or a mathematician, or an engineer — or a hockey player. Jill R. Gaulding is an associate professor at the University of Iowa College of Law.

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