Bill of Rights - Women’s Rights

ah what are we going to do for a workout today cut well for warmups why don't you start with ten 100's hi Roz hi coach how are you hi there okay then I get the team ready okay I'll be out with you in a second come on in what can I do for you well I've been swimming since I was little and now on the girls swim team at school I'm not getting any competition what are you saying eyes I'd like to be on the boys swim team wow that's gonna create problems what kind of problem well problems with League rules allowing a girl to swim on the boys team well how do you feel about me being on boys tape I'd like to have you your strong swimmer well what do you think spindle box well maybe we can set up a match with you and Don and get the principal down to see it and get them on our side would you be willing to do something like that yeah okay great hi mr. Nelson hi coach I understand you've got a race for me to say yeah we have a hundred-yard individual mythic one of its women of Medellin well it's four lines starting with the butterfly the backstroke breaststroke and finally the Freestyle don't look a good Rouge okay I'll get it going okay clear the pool everybody in the stands rising down on the line right Don you got to swim a hundred-yard individual medic thank you mom congratulations you two that was a very impressive race thank you thank you very much so what do you think about Raj swimming and the boys rise to the team she's obviously a strong enough story to compete with the boys but there's a state athletic Federation by law that prohibits girls and taking part in boys team does that mean that I can still avoid see means just that for what can be done nothing can be done unless they change the state bylaws we could be suspended from all athletic competition if we violated the law no I'm sorry we could use another good swimmer what happened at school today rod but you know I've been trying to get on the boy swim right but coach downing set up a match between me and dynamo and we had our little race and how does it come out all came on all right Danny well did you swim well yeah excellent pretty good the principal was there and he saw the race and we're pretty good but he doesn't think he can do anything about oh I suppose because of that rule about women not competing oh yeah man Roz I'm very sympathetic as you might guess having coached you since you were seven years old I I would really like to see you get ahead and you're a good strong swimmer but I have a feeling that nothing is going to happen on this we're really talking about sex discrimination and it happens all over in sports and in life generally I believe that we're going to have to pursue it legally if we if anything's to happen how would you feel about that crime and how about your parents they would they would back you yeah well I happen to know a lawyer a woman that I think would be very interested in this supposing I get in touch with her and have you talked to her about you probably at the end I will well let's get into the pool and on with our workout laughs Virginia more your swimming coach called and told me you'd be coming to see me because your principal declared you ineligible to swim on your boys swim team I understand from her you're a very talented swimmer thank you I checked the bylaws of the State Interscholastic Federation they indicate that first we should ask your local Athletic League to make an exception in your case if they won't do that we can take it all the way to the state level and if we can't get satisfaction that way we'll have to bring a case in court are you prepared for that possibility yes this five week but my pet's conserved but the cost how much will cost us prize you won't have to worry about that I think the issues in this case are important enough that we ought to pursue them even without my being paid so that won't be a concern in the case okay thank you mr. Nelson I understand you're not only the principal of the school that Rosalind Wallace attends you're also the president of the Pioneer League that's true and the Pioneer League is an Athletic Conference of which the school is a member as her principal you told Rosalind that even though she was qualified she couldn't compete on the boys swimming team because she was a girl as president of the Pioneer League can you authorize her to compete on the team no I have no such authority I can't change a State Interscholastic Federation bylaw which specifically states that girls are ineligible to compete on boys teams but personally you agree with that rule Oh as a matter of fact I don't I'd like to see a change well what do you suggest we do in order to change it I suggest that you go to the southern section office of the State Interscholastic Federation and request that the bylaw be amended the Executive Committee of the southern section has met and her request was rejected but don't you think that developing the athletic abilities of girls as talented as Roz is important enough to warrant an exception there you've hit upon the thinking of the committee as we consider Donna's case we feel the program is designed for the greatest value to the largest number of competitors if we open the way for girls to compete on boys team conversely we must also open the way for boys to compete on girls teams the disadvantages then would offset the advantages do I understand you correctly then that you won't even make a recommendation that the state bylaw be changed you have the right to appeal the decision of the southern section to the state athletic board I speak on behalf of principals and superintendents who are elected to serve on the State Interscholastic Athletic Federation we believe that swimming is a desirable sport for schoolgirls also there should be teams so that girls can compete against girls from other high schools in league play however we feel that eligibility requirements should stand namely that girls are not eligible to compete on boys teams sister March my client has pursued her administrative remedies with the State Interscholastic Athletic Federation all the way to the state level and an each stage along the way her claim of sex discrimination has been denied finally I filed a complaint in the district court here and I understand you're going to be defending the state against it that's correct even though my client is black I haven't added a claim of racial discrimination basically because I don't have the facts to support it right now well I don't think racial discrimination is a factor here as you know the school and the swimming game are both fully integrated can that they've been acting in violation of my clients constitutional rights and denying her a place on the boys team can I convince you to drop your complaint mr. Marsh it looks like we're going to have to submit this one to the court can we at least get a prompt resolution of the issue my client is eager to begin swimming as soon as the season starts and that's soon well in fairness to your client I think we should I think the quickest way for me to proceed is to file with the murder - your complaint I'll be prepared to respond slow Roz this is Carol Howard I just wanted to tell you about the status of our case the Interscholastic Federation has filed a demur and there's going to be hearing on it next Tuesday no it's not a trial what the state is saying in this tumor is that the Constitution affords us no relief at all and therefore we ought to be thrown out of court even without a trial you won't have to be there to testify but I think you'd really find it interesting and I'd like you to come good I'll see you then good morning Council this is the case of Wallace vs. State Interscholastic Athletic Federation our counsel ready ready for the plaintiff your honor ready Your Honor I think in this case I'd like to hear first from counsel representing miss Wallace thank you your honor my client has been discriminated against not because she is black but solely because she is a woman it is my contention that the Constitution which protects her especially against discrimination because of her race ought to be equally scrupulous in protecting her against discrimination because of her sex it is true that plaintiffs high school has both the girls and a boy swim team but because of a by law of the state Interscholastic Federation which says that girls may not participate on boys teams my client has been prevented from swimming on the team with the competition and the facilities that allow her to develop her talent to the fullest that Your Honor is a denial of my clients rights under the 14th amendment to the equal protection of the laws it is indistinguishable from racial discrimination for two reasons first sex like race is a trait my client did not choose and cannot change second sex like race historically has served as the basis for systematic purposeful unequal treatment until the early years of the 20th century women were prohibited by law from owning property serving on juries even voting just as the Supreme Court has not accepted racial stereotypes as justifications for discrimination against blacks so this Court should not permit convenient generalizations about differences in size and strength between the sexes to justify the adverse treatment my client has received thank you your honor thank you miss Howard counsel the fundamental question this case raises is whether distinctions based on sex are constitutionally impermissible now there are other questions including the role of athletics and the educational process that the court may consider but the basic issue the issue this Court is called upon to resolve is whether the state can treat student athletes differently solely on the basis of their sex miss Wallace's counsel has suggested indeed she's insisted that a rigid requirement of total equality is just as proper for the sexes as it is for the races and just as workable she bases this argument on the Equal Protection Clause of the 14th amendment to the Constitution which says that no state shall deny any person equal protection under the law but the Equal Protection Clause does not require that all persons be treated alike in all circumstances it merely requires that they be treated alike if they are the same if they are not the same if there are legitimate reasons for treating them differently the state may treat them differently the state does not dispute that sex like race is an immutable characteristic circumstance of birth over which the individual has no control and which he or she is powerless to change and we properly refuse to recognize any differences between the races that would justify different treatment under any circumstances but we must recognize that there are differences in size and in strength between men and women now these differences do not justify different treatment in most cases but they do justify classifying separately girls and boys in our state's high school athletic programs separate treatment is permissible under the Equal Protection Clause if there are legitimate reasons for that treatment and the state has legitimate reasons here differences in size and in strength are clearly related to the purposes of athletics in our high school programs the Constitution of the United States does not prohibit separate treatment based on those differences but the court knows that it does not decide cases in a vacuum the court's decision in this case is important not only to miss Wallace but it will affect the life of every high school student in the state Roslyn Wallace is an exceptional swimmer she could win a place on any high school swimming team but the principal she urges on this court today that different treatment based on sex is impermissible would prevent most girls from participating in high school athletics at all because the court must remember that if the Constitution requires that the boys swimming team be integrated the Constitution also requires that the girls swimming can be integrated and because high school boys as a group are larger and stronger than high school girls the swimmers on both teams will be mostly boys now what the state wants is a real opportunity for girls for all girls to compete in high school athletics not just the exceptional girl it's true that the girls athletic program is not yet as fully developed or equal in every respect to the boys but the school is making enormous progress in years past there were no girls teams at all the court should not interfere in that progress the court should not hold as constitutional law that the right of every girl to participate in high school athletics is less deserving of protection than the right of a single girl to compete against boys aside from the narrow issue before this Court this case has broader implications if this Court decides today that the swimming team must be sexually integrated will not the court have to decide tomorrow that the football team the wrestling team be sexually integrated will not the court have to decide tomorrow that the locker room that the shower be sexually integrated in the light of our history in our culture there are legitimate and compelling reasons for separating our boys and girls in these areas we do not live I hope we never live in a you know sexual society there are differences between men and women we all know that it would be a mistake a tragic mistake for this court not to recognize those differences I thank you your honor Thank You counsel miss Hart would you like to reply Thank You counsel for the Federation has just conceded that my client could compete on any high school team in the city but the heart of this case is that Roslyn Wallace is not allowed to swim on the boys team at our own high school repeated references to differences in size and strength between the sexes should not be permitted to obscure the fact that my client has demonstrated she can swim as well as any boy on her school's team I gladly admit that boys and girls are not biologically the same but their abilities overlap considerably in most fields of endeavor and the state should be required to classify people on the basis of their own abilities rather than on the basis of immutable traits such as sex unless it has a compelling reason for doing otherwise opposing counsel has argued instead that this Court should defer to the judgment of the state in matters of sex discrimination so long as the state can offer a basis in reason or convenience for its actions but when such deference was granted in the past two laws distinguishing between the races the result was that courts upheld laws segregating blacks and whites in streetcars in school houses and all in the name of judicial restraint in spite of this counsel for the Federation contends that unless this court defers to the state in this case not only will girls athletic suffer but the Constitution will be construed to demand futile II that the states ignore real social and physical differences between the sexes he has made a series of startled predictions about the consequences that will follow from a rule of sexual equality in an effort to demonstrate if my client is given the opportunity she so clearly deserves more harm will come than good I must disagree with this Your Honor the development of girl athletes less exceptional than Rosalyn Wallace need not be compromised by the constitutional principle I recommend Interscholastic teams could be provided for slower swimmers regardless of their sex and boys and girls too good to compete on those teams could be required to compete against one another instead but even if this alternative fails to protect girls athletics it is girls athletics that should yield not the principle of equality we may feel that discrimination sometimes furthers admirable social goals that cannot otherwise be achieved but unless those goals are more than admirable unless they are socially indispensable they should not be admitted as exceptions to the rule of equal treatment of the sexes there can be limited exceptions for compelling circumstances under the Equal Protection Clause and these exceptions would probably permit the state to maintain segregation in facilities such as restrooms and shower rooms but unless the exception is limited to such extreme cases your honor women will continue to be denied needed constitutional protection against state rules based on sexual stereotypes discrimination will continue to create and exaggerate differences between the sexes and these differences in turn will be offered as justifications for further discrimination women will continue to be excluded from well-paying jobs simply because some women aren't big enough or strong enough to perform them and women will continue to be paid less for doing the same work as men this process must be stopped our society can no longer afford to discourage excellence in its talented girls thank you your honor Thank You counsel each of you has given me a different set of predictions concerning what will happen to the school's athletic program if I decide Miss Wallace must be permitted to swim on the boys team however the real issue for me to decide goes beyond the consequences that may or may not befall the school's athletic program I must decide if the Equal Protection Clause of the United States Constitution requires that distinctions made on the basis of sex are to be prohibited in the same manner that the Constitution prohibits classifications or distinctions made on the basis of race it is clear that the Constitution does not prohibit States from treating people differently in all cases for example a requirement that people must have certain educational credentials before being permitted to teach in our public schools would certainly be valid therefore in this case I must decide whether the reasons given for having separate men's and women's athletic programs are plausible but beyond that I must decide if plausible is enough I must decide whether the reasons given must be strong and compelling once obviously these are important questions I believe that I must take time in reaching my decision and therefore I'm going to take this case under submission when I have reached the decision I will let you know Thank You counsel