For Kenny, Who Wanted to Play Women’s Field Hockey

I. INTRODUCTION An increasing number of women at the professional, (1) collegiate, (2) and high school (3) levels are successfully making their way into men's sports competitions and onto men's athletic teams. Within this evolving context of gender desegregation and athletic participation, the idea that boys and girls should only compete on separate teams is changing. Society is increasingly accepting the idea that girls who are good enough ought to be able to play on a boys' team, especially at high schools where a particular sport is offered for boys only. The same cannot be said for the idea of boys playing on girls' teams. Particularly in the sports of volleyball (4) and field hockey (5) administrators are having to deal with the legal and policy questions behind whether boys legally can and normatively should be allowed to play on girls' teams. This note will focus on the sport of high school field hockey and analyze whether, under Title IX (6) or the Equal Protection Clause (7) public high schools must allow boys to try out for and play on their girls' field hockey teams. In analyzing the issue of whether boys should be allowed to play on girls' high school field hockey teams, this note will provide (1) an overview of the scope and history of boys playing on girls' high school field hockey teams, (8) (2) a discussion of Title IX (9) and the Equal Protection Clause, (10) and (3) a comparison of the differing judicial opinions from states where this matter has been litigated. (11) Throughout this note, the author will make reference to a fictional character named Kenny, (12) a high school boy too small to play football and too short to play basketball, but just right for field hockey, and discuss--apart from the legal issues--whether Kenny should be allowed to play on a girls' high school field hockey team. II. GENERAL DISCUSSION A. Scope and History of Boys' Participation in Girls' High School Field Hockey After a largely unsuccessful spat of lawsuits attempting to allow high school boys to play on girls' teams in the late 1970s and early 1980s, (13) boys are once again going to court to get onto girls' high school athletic teams, particularly girls' field hockey teams. (14) As the Wall Street Journal reported in 1998, Some teenage boys are suing for the right to run around school athletic fields in pleated skirts. In an unusual legal twist, they have been using sex discrimination laws to try to get onto girls' sports teams. Most of these cases involve field hockey, which in this country has traditionally been played by girls. (15) The game of field hockey, where two 11-person teams try to hit a ball through a goal on a field using sticks, (16) is among the world's oldest sports. (17) The modern version of field hockey evolved in nineteenth century England where the first women's club was formed in 1887. (18) Field hockey was transported to America--by a woman--in the early twentieth century. (19) While a sport mainly played by men in the rest of the world, (20) in the United States field hockey is a game played almost exclusively by women. There are currently zero school-sponsored high school or college men's field hockey teams. (21) There is no consensus among the states in which girls' high school field hockey is played as to whether boys should also be allowed to participate. Massachusetts became the first state to declare the blanket exclusion of boys from girls' high school athletic teams unconstitutional in 1979. (22) Boys have been playing girls' field hockey there for over 20 years. Boys can also play in New York, (23) and some parts of Pennsylvania. (24) In Maryland, local school districts may let boys play field hockey in the regular season, but boys are not permitted to play in the state tournament. (25) Boys have lost legal challenges to rules excluding them from playing on girls' high school field hockey teams in Maine, (26) New Jersey, (27) and Rhode Island. …