No Longer a Benchwarmer: Haley Van Voorhis and the Next Era of Inclusivity in College Athletics

By: Hannah Posencheg*                                                             Posted: 02/23/2024

On September 23, 2023, 19-year old Haley Van Voorhis made history as one of the first non-kicker female football players to appear in an NCAA football game.[1]  This was not Van Voorhis’ first experience as a woman playing on a men’s team, but her accomplishment marks her a trailblazer of gender inclusivity in college athletics.[2]  Her success on the field has been met with overwhelming support from professional athletes, news outlets, and her school, Shenandoah University.[3]  Other female football players have not been so lucky.[4]  There remain to be strong, conflicting views about whether women should have the opportunity to play football.[5]  Critics fear for the safety of women, and warn the risks of head injury, while advocates believe football provides women with important life skills they are being deprived of.[6]  Aside from conflicting public opinion, there is another, larger hurdle female football players face: Title IX’s contact sport exception.[7]

Title IX: Ensuring Gender Equality in College Athletics, With Exceptions

Title IX is the comprehensive federal legislative scheme that prohibits discrimination based on sex in any federally funded educational program or activity.[8]  At its inception in 1972, Title IX did not reference sports or athletics in the entire statute.[9]  By 1975, the Secretary of Health Education and Welfare promulgated regulations to address intercollegiate and interscholastic athletic programs.[10]  These regulations aimed to ensure women were offered equal opportunities to participate in athletics as their male counterparts.[11]  However, the regulations created two exceptions to the protections provided to women under Title IX; one of those regulations was the contact sport exception.[12]  In essence, the contact sport exception allows educational institutions to bar women from playing on sports teams if the sport is considered a contact sport.[13]  This exception creates a significant gap in Title IX protections for aspiring female football players and athletes due to its extremely broad language.[14]

Fourth Circuit’s Glimmer of Hope, and Following Ramifications

Courts have historically construed the exception in particularly harmful ways.[15]  Specifically, the courts have permitted educational institutions to use the exception to bypass sex discrimination liability in contact sports.[16]  Put simply, in Title IX litigation for sex discrimination claims, if a school can prove the sport in question is a contact sport, the case is closed.[17]

An example where a court has upheld a Title IX claim for gender discrimination was Mercer v. Duke University.[18]  In Mercer, a female kicker tried out for and made the men’s football team at Duke University.[19]  While on the team, she alleged the coach verbally harassed her, asking her things such as why she was interested in football rather than in beauty pageants, and eventually she was cut from the team.[20]  She sued under Title IX, alleging her coach excluded her from the team because she was a woman.[21]  The Fourth Circuit found that, “[o]nce an institution has allowed a member of one sex to try out for a team operated by the institution for the other sex in a contact sport, [the contact sport exception] is simply no longer applicable, and the institution is subject to the [anti-discrimination clause].”[22]  This finding narrowed the exception, limiting its application to athletes who desire to, but have not yet begun participation in a contact sport.[23]  Though it may seem that Mercer was a positive outcome for female athletes, it may deter educational institutions from risking the liability of allowing female participation in men’s contact sports.[24]  This is because after Mercer, if institutions open try-outs for a contact sport to the opposite sex, they automatically subject themselves to the requirements of the anti-discrimination clause.[25]  So, the best way for them to shield themselves from Title IX liability is to prevent members of the opposite sex from trying out for a contact sports team all together.[26]

Haley Van Voorhis: Pioneering Women’s Presence in College Football

It is important to note that Title IX does not prohibit educational institutions from allowing female athletes to play on contact sports teams, but rather, the regulations leave it up to each school to choose.[27]  In Haley Van Voorhis’ case, she is lucky Shenandoah University has chosen to allow women to play football with male players, despite its contact sport classification.[28]  The number of girls interested in football has been rising, yet only a few can play at the college level.[29]  There have been attempts by schools and community organizations to funnel that interest into female flag football leagues.[30]  The NFL has even invested in women’s flag football.[31]  However, these efforts have been coined as “paternalistic” and “separate but equal” failures that may advocate for women, but seek to preserve a ladylike or less dangerous environment.[32]  There are a multitude of benefits women may gain by playing football, and barring women from the sport unfairly deprives them of such.[33]

Refresh Time: Congress Must Revisit Contact Sport Exception

Though changes to Title IX are in the works under the Biden Administration, there is no sign of any changes to the contact sport exemption.[34]  The exception hinders women’s ability to gain access to the benefits of contact sports and perpetuates an outdated belief that underestimates women’s abilities.[35]  It also disincentivizes institutions from providing more opportunities for women to participate in sports.[36]

By abolishing the exception, athletic programs could be pushed to base their team try-out decisions on each student’s athletic ability rather than stereotypical assumptions or expectations about female student athletes in general.[37]  Additionally, it would undoubtedly give women more opportunities to get involved in athletics, which has been proven to benefit them personally and professionally.[38]  Overall, it is up to Congress to revisit the text of the statute, eliminate the contact sport exemption, and allow women to reach their full potential as student athletes and beyond.[39]  In the meantime, stories like Haley Van Voorhis’, and others’, are a great place to start.[40]

*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2025, Villanova University Charles Widger School of Law.

[1] See Matias Grez, Haley Van Voorhis Makes History as First Female Non-Kicker To Play in NCAA Football Game, CNN, (Sept. 25, 2023, 12:36 PM), https://www.cnn.com/2023/09/25/sport/haley-van-voorhis-history-first-female-non-kicker-ncaa-spt-intl/index.html (describing Haley Van Voorhis’ debut play on Shenandoah University’s football team); see also Leonardo Shapiro, Virginia Woman Makes College Football History by Stepping on the Field, The Wash. Post, (Sept. 23, 2023, 7:17 PM), https://www.washingtonpost.com/sports/2023/09/23/haley-van-voorhis-football-player/ (correcting original headline describing Van Voorhis as first female non-kicker to play in NCAA football game).  It has since been corrected by The Washington Post that Taylor Crout of Fitchburg State entered a game earlier this fall as a cornerback.  See id. (including correcting statement containing this information at beginning of article).  Before Crout, news sources have claimed Maria del Carmen Sacristan Benjet was the first because she played as a wide receiver at the end of a 2021 season game at Worcester Polytechnic Institute.  See Samantha Lewis, Taylor Crout – First Female Non-Kicker in NCAA?, Girls Club, (Oct. 9, 2023), https://www.sportsgirlsclub.com/post/taylor-crout-first-female-non-kicker-in-ncaa (explaining Maria del Carmen Sacristan Benjet played wide receiver on November 6, 2021, against Coast Guard).

[2] See Leonardo Shapiro, Virginia Woman Makes College Football History by Stepping on the Field, The Wash. Post, (Sept. 23, 2023, 7:17 PM), https://www.washingtonpost.com/sports/2023/09/23/haley-van-voorhis-football-player/ (explaining Van Voorhis’ past on men’s sports teams including captaining her high school football team as wide receiver and defensive back); see also Kelsey Dallas, Watch: This Woman Just Made College Football History, Deseret News, (Sept. 25, 2023, 7:32 PM), https://www.deseret.com/2023/9/25/23889657/women-in-college-football-haley-van-voorhis (explaining that after playing high school football, Van Voorhis was recruited by several Division III programs and chose to play at Shenandoah University).

[3] See Shenandoah University’s Haley Van Voorhis Makes National Headlines For Feat On Football Field, Shenandoah Univ. News, (Oct. 2, 2023), https://www.su.edu/blog/2023/10/02/shenandoah-universitys-haley-van-voorhis-makes-national-headlines-for-feat-on-football-field/#:~:text=Her%20achievement%20was%20shared%20on,seen%20by%20millions%20of%20people (describing shoutouts made by Billie Jean King and Deion Sanders in support of Van Voorhis); see also Shapiro supra note 2 (quoting President of Shenandoah University saying, “It’s an extraordinary accomplishment for women everywhere.”); see also The Today Show, Haley Van Voorhis On Being First Female Non-Kicker In NCAA Football, YouTube, (Sept. 25, 2023), https://www.youtube.com/watch?v=Rg1M8hitsPM (featuring Van Voorhis on Today Show with Hoda Kotb and Jenna Bush Hager).

[4] See Dan Fotoples, District Court Permits Title IX Lawsuit by Female Football Player Banned by Competitor Christian School to Proceed, JD Supra, (Sept. 7, 2022), https://www.jdsupra.com/legalnews/district-court-permits-title-ix-lawsuit-4124599/ (explaining incident where high school banned female football player from school to compete in football games because she was female).

[5] See Frankie De La Cretaz, The Complicated Case For Gender Equality in Football, In These Times, (May 1, 2023), https://inthesetimes.com/article/wfa-nfl-womens-football-gender-equality (explaining some critics of women’s involvement in football argue risk of head trauma is not worth it, while advocates argue women are being deprived of important character building, leadership, discipline and social skills provided by football).  There has been a paternalistic impulse to protect women and their bodies throughout the history of women and sports, and this perspective remains prevalent today.  See id. (describing historic belief that women are physically weaker than men).

[6] See id. (describing society’s impulse to protect women and its harmful repercussions).

[7] See Requirements Under Title IX of the Education Amendments of 1972, U.S. Dep’t. of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/interath.html (last visited Oct. 13, 2023) (describing exemption which allows educational institutions to prohibit female athletes from playing contact sports).

[8] See id. (explaining purpose of Title IX).

[9] See Katlynn Dee, Strong But Sidelined: A Call For The Elimination Of The Contact Sport Exception Through The Lens of Title VII’s Disparate Treatment Analysis, 69 DePaul L. Rev. 1011, 1014 (2020) (explaining Title IX’s initial purpose did not include addressing gender inequalities in athletics).

[10] See Title IX – Civil Rights, U.S. Dep’t of Health, Educ., and Welfare Fact Sheet 1, 3 (June 1975) https://files.eric.ed.gov/fulltext/ED108299.pdf (explaining public comment period of regulatory process yielded heavy volume of comments addressing Title IX’s failure to explicitly cover sports and athletic programs).

[11] See id. at 2, (explaining evidence of disparate treatment among women in their opportunities to participate in school physical education and athletic programs).

[12] See id. at 7–8, (explaining exception where schools are not required to allow women to play on male teams if sport is considered contact sport); see also 34 C.F.R. § 106.41(b) (1979) (including contact sport exception under “Separate Teams” subsection of regulation).

[13] See 34 C.F.R. § 106.41(b) (1979) (listing contact sports as “boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.”).

[14] See Dee, supra note 9 at 1016 (explaining institutions and courts have interpreted exception to effectively limit Title IX liability for gender discrimination in contact sports).

[15] See id. (attributing harm to way courts construe text of exception).

[16] See id. (using Barnett v. Texas Wrestling Ass’n and Kleczek v. Rhode Island Interscholastic League as examples where courts abandon inquiries into discrimination once sports are classified as contact sports under contact sport exception); see also 30 C.F.R. § 106.41(b), supra note 13 (“[B]oxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.”).

[17] See id. (explaining schools are not liable for sex discrimination under Title IX if gravamen of claim concerns participation in contact sport).

[18] See Mercer v. Duke University, 190 F.3d 643, 644 (4th Cir. 1999) (finding Duke University football coach was liable for gender discrimination of a female kicker).

[19] See id. at 645 (describing opportunity for female to try out for men’s football team at Duke University).

[20] See id. (explaining offensive comments made by head coach to female kicker while on football team and her subsequent termination from team).

[21] See id. (describing Duke University’s actions prompted female kicker to take legal action).

[22] See id. at 648 (summarizing Fourth Circuit’s interpretation of contact sport exception).

[23] See Abigail Crouse, Equal Athletic Opportunity: An Analysis of Mercer v. Duke University and a Proposal to Amend the Contact Sport Exception to Title IX, 84 Minn. L. Rev. 1655, 1673 (2000) (describing narrowing effect Fourth Circuit’s decision in Mercer had on contact sport exception).

[24] See Dee, supra note 9 at 1017 (explaining outcome in Mercer does more harm than good for female athletes).

[25] See Mercer v. Duke University, 190 F.3d 643, 647 (4th Cir. 1999) (describing liability of Duke University for gender discrimination because of female kicker’s ability to try out for football team in first place); see also 34 § C.F.R. 106.41(a) (1979) (“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.”).  

[26] See Crouse, supra note 23 at 1682 (explaining institutions’ refraining from opening up try-outs for contact sports teams to opposite sex mitigates risk of Title IX liability).

[27] See Title IX – Civil Rights, supra note 10 at 7 (“The goal of the final regulation in the area of athletics is to secure equal opportunity for males and females while allowing schools and colleges flexibility in determining how best to provide such opportunity.”).

[28] See Shapiro, supra note 2 (describing Shenandoah University’s support for Van Voorhis).

[29] See Britni de la Cretaz, More Girls Are Playing Football. Is That Progress?, N.Y. Times, (Feb. 2, 2018), https://www.nytimes.com/2018/02/02/well/family/football-girls-concussions.html#:~:text=According%20to%20the%20Sports%20and,or%2010.9%20percent%20—%20are%20female (explaining increased interest in football for girls not being reflected at college level).

[30] See de la Cretaz, supra note 5 (describing flag football as “the future of women’s football.”).

[31] See id. (noting NFL’s interest and monetary investment in women’s flag football programs).

[32] See id. (describing promoting flag football for women as “uphold[ing] ideologies of female inferiority.”).

[33] See id. (discussing potential benefits of playing football).(state what the benefits are)

[34] See Lisa Karen Atkins, Amanda T. Quan, & James C. Pennington, U.S. Department of Education Delays Release of Title IX Final Rules to October 2023, Ogletree Deakins, (June 2, 2023), https://ogletree.com/insights-resources/blog-posts/u-s-department-of-education-delays-release-of-title-ix-final-rules-to-october-2023/#:~:text=Education%20recently%20announced.-,The%20much%2Danticipated%20release%20of%20the%20Biden%20administration%27s%20final%20revisions,targeted%20a%20May%202023%20release (describing 2020 regulations focused on sexual harassment and proposed 2023 changes to regulations focus on protections for pregnant and LGBTQ+ students).

[35] See de la Cretaz, supra note 29 (characterizing lack of support around women’s involvement in football as paternalistic and stereotype-driven).

[36] See Crouse supra note 23 (summarizing reluctance of institutions to offer contact sports try-outs to opposite sex for fear of Title IX liability after Mercer court’s interpretation of contact sport exception).

[37] See Dee, supra note 9 at 1038 (asserting elimination of exception would force coaches to evaluate players solely based on skill).

[38] See de la Cretaz, supra note 5 (citing to research finding football teaches players leadership skills that lead to leadership roles at work).

[39] See Dee, supra note 9 at 1038 (explaining effectuating change starts with Congress’ need to remove exception).

[40] For further discussion of Voorhis’ story, see supra notes 1–3 and accompanying text.