SALT LAKE CITY — Even if Sam Gordon wins her lawsuit forcing Utah schools to offer girls their own prep football teams, she may never know what it’s like to run out under the lights on a Friday night, in front of the school community she represents, to play the sport she loves.
“There is something special about getting to go play underneath the lights, and being really part of your school that I would miss out on, but I really just want to see it for all girls,” said the senior who attends Herriman High. “If it doesn’t happen for me, but it gets to happen for others, then I’m OK with it.”
Her nearly three-year legal battle will come to an end in a few weeks when a three-week bench trial in front of U.S. District Court Judge Howard C. Nielson Jr. determines whether Title lX or the Equal Protection clause require public schools and the Utah High School Activities Association to offer girls their own tackle football league, or if allowing them to play on predominantly boys teams is sufficient.
“It’s been crazy,” said Gordon. “I can’t even remember how old I was when this all started. I know it’s been a long time, and so it’s exciting to see this all finally coming together, and we’re going to get a ruling on our case.”
The trial began Tuesday in a courtroom prepared with individual attorney desks surrounded by plexiglass. With very limited seating and additional viewing from a separate courtroom, both sides will try to convince the single judge instead of a jury. D. Craig Perry, one of the attorneys representing the Activities Association, said he’s grateful Nielson found a way to hold the trial in spite of all of the pandemic precautions.
“It’s been a long time,” he said. “I think it’s good for all the sides to finally bring it to a resolution. ... I think the judge bent over backwards to accommodate this to allow this to be the first trial really in the federal court since COVID began.”
Perry said there is no debate that more boys play football than girls, “But the question is why?”
“Is it something the districts and UHSAA are doing improperly that prevents girls from playing football?” he asked. “Or are there other factors that cause girls to decide not to play high school football?”
Perry offered defenses for both the Title lX question, as well as the Equal Protection question.
“For the Equal Protection issue, the question is why more girls do not play high school football, and is it due to some improper conduct by the UHSAA or defendants,” Perry said. “For the Title lX claim, the question is whether or not Title lX requires the districts to offer the specific sport of girls tackle football, when no court has ever ordered the creation of a new team, let alone an entire competitive region under Title lX.”
None of those involved knew of another case in the country where a lawsuit asked for the creation of a new, gender-specific league. Most suits ask for access to existing teams, leagues and opportunities.
But Gordon’s attorney, Loren Washburn, raised questions about whether simply calling football co-ed actually made it a meaningful opportunity for girls. Gordon certainly didn’t feel that way.
“I have never played against the boys on the high school team because, for me, being 5-foot tall and some of the boys being like 300 pounds, it just would not go well for me. So it’s frustrating to hear them call it a co-ed sport and say that girls have the opportunity to play when in reality, it’s nothing of the sort.”
Tuesday morning started with opening statements, and then a single witness consumed the first afternoon of the trial. Washburn questioned Jordan Administrator of High Schools Brad Sorensen about a survey commissioned in response to the lawsuit that asked students what sports they’d like to play that weren’t currently offered, and then it also asked them to rank their choices.
Sorensen said district officials appreciated the information offered by the survey, but he said they hadn’t had time to act on the findings because they’ve been dealing with COVID-19 for the last six months.
“We were looking to see what sports students were interested in,” he said. When asked why, Sorensen added, “Because we have a responsibility to look at that.”
When asked if the district had a plan to take action on any of the findings, Sorensen said it was more complicated, alluding to the reality that most schools add sports as the association recommends or sanctions them.
“This helps us make more informed decisions when we’re considering adding other activities,” he said. Washburn pointed out that no one at the district was assigned to follow up with any of the students who were interested in sports that aren’t currently offered.
The sport that most girls were interested in that isn’t currently offered is archery. Many of those students indicated they’d participated in a program through the Division of Wildlife Resources, and more girls said they wanted to participate in archery than wanted to participate in basketball.
The second-most popular option was competitive cheer, a program that was on track to be sanctioned by the Utah High School Activities Association a few months ago, but was put on hold for at least a year based on a request from coaches.
Interestingly, more girls — 15% — were interested in girls tackle football than were interested in lacrosse. Lacrosse was sanctioned and Jordan schools were able to field both JV and varsity teams in their first year. Only 2% of the girls surveyed indicated they wanted to wrestle in a girls league, but girls wrestling was sanctioned as a new sport for this winter.
Washburn questioned Sorensen extensively on what training coaches and administrators get in accommodating girls who want to play on high school football teams. He asked about everything from locker rooms to reporting sexual harassment or assault. Sorensen wasn’t sure how coaches dealt with locker room issues, but he said they offer training to both coaches and students about bullying, hazing and sexual abuse.
Gordon’s father, Brent Gordon, created a girls tackle football league six years ago in which hundreds of girls now play.
“I knew girls who had played in our girls tackle football league and they are stars,” Sam Gordon said. “They play every down, and they have this great position on the team. But then they go play for the boys teams and they rarely see the field — even in practices. And so I know it was very frustrating for them.”
She didn’t want to speak for girls who did attempt to play on high school teams, but she said several have said it was hard.
“It’s very difficult to be the only girl on an entirely guys team, especially with the culture that comes with football and having to be in a locker room while they’re all changing, and perhaps having to be in a separate place,” she said, noting that she discussed playing with her dad and their experiences influenced her decision. “I really took that into account and decided it wasn’t something I wanted to put myself through.”
Perry said part of what will be at issue is how new sports are sanctioned. Schools don’t just offer competitive sports on their own. They add or change what sports are offered through their collective process — the association. The association is the schools, and the organization they formed to govern prep sports and state tournaments.
“The UHSAA is made up of the schools, the principals, the superintendents, the athletic directors,” he said. “So it’s not really a separate, independent entity that acts independent of the schools. There are a lot of factors that go into sanctioning a new sport. It’s not just interest.”