By: Gillian Grant
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” – Title IX of the Education Amendments of 1972 (Title IX)
While Title IX was initially enacted to specifically address discrimination against women in education, the interpretation of what discrimination “on the basis of sex” includes has evolved over time. In 1989, the Supreme Court held in Price Waterhouse v. Hopkins that discrimination because of gender stereotyping or gender nonconformity constitutes sex discrimination. More recently, in Bostock v. Clayton County, the Court held that sex discrimination includes discrimination on the basis of gender identity and sexual orientation. While the Court in these cases interpreted the statutory language in the context of Title VII of the Civil Rights Act of 1964, multiple appellate courts have concluded that the same interpretations apply to Title IX. Federal agencies and officials agree. Executive Order 14021, issued by President Biden in March 2021, stated that discrimination on the basis of sex includes discrimination on the basis of gender identity and sexual orientation and ordered the Department of Education to review its existing guidance to ensure compliance with that definition. A memorandum released by the Principal Deputy Assistant Attorney General of the Civil Rights Division and a Notice of Interpretation issued by the Department of Education’s Office for Civil Rights both affirmed that Bostock’s holding is applicable to Title IX.
This past June, on the 50th anniversary of Title IX’s passage, the Department of Education released a Notice of Proposed Rulemaking for public comment. The proposed regulations strengthen protections for pregnant students and employees, improve the grievance procedure, and explicitly apply Title IX to discrimination on the basis of sexual orientation, gender identity, sex characteristics, and sex stereotypes. Trump-era guidance had narrowly defined “sex” to include only “biological sex” and explicitly excluded claims of discrimination on the basis of sexual orientation and gender identity, which the Department acknowledges is now inconsistent with Bostock and Executive Order 14021.
The proposed rule has received backlash for its adoption of Bostock’s interpretation of sex discrimination, with many opponents expressing outrage that trans students may be permitted to play sports on a single-sex team that is consistent with their gender identity. Notably absent from the Department’s proposed rule, however, is any provision permitting trans students to do so. While the Department states that policies “prevent[ing] students from participating in school consistent with their gender identity” must be revised, it also specifically notes that it will be addressing in separate, future rulemaking “whether and how the Department should amend § 106.41 in the context of sex-separate athletics. . . including what criteria, if any, recipients should be permitted to use to establish students’ eligibility to participate on a particular male or female athletics team.” While future proposed rulemaking may explicitly protect the right of trans athletes to play on sports-team aligning with their gender, the current proposed rulemaking does not.
The focus on trans athletes is not surprising. Amid increased animus toward the trans community, eighteen states have banned trans youth from participating in sports consistent with their gender identity. The bans are often enacted under the guise of protecting women’s sports and complying with Title IX. Idaho’s law, for example, is named “The Fairness in Women’s Sports Act.” In explaining their decision to curb trans students right to participate fully in sports, the Idaho State Legislature made extensive findings regarding the “physiological differences” between the sexes, which, the legislature argues, grant an “unfair lead” to students who were assigned male at birth.
These justifications for discriminating against trans athletes, and specifically trans women and girls, are misguided. First, there is little support for the notion that trans women have an unfair advantage over cis women in sports. Second, many trans girls take puberty blockers and hormone replacement therapy (HRT), thus never experiencing “male puberty” and any advantages that might offer. Other trans girls take testosterone blockers and estrogen, which, even when started after puberty, minimize the impact of testosterone. Finally, these laws also negatively impact intersex girls, who may be required to take testosterone-lowering medication to compete in certain sports, and some cis girls, who may face similar requirements because of conditions such as polycystic ovarian syndrome which causes elevated testosterone levels. Ultimately, the bills address a fully fictional issue: that trans women dominate women’s athletics. In reality, there are relatively few trans athletes playing sports at either the high school or college level. In fact, there was only “one registered transgender female athlete competing. . . on a high school girls’ team [in Utah]” at the time Utah’s ban was enacted. Legislators in other states have been unable to cite any occurrences of trans athletes competing in their respective states, let alone instances of trans athletes unfairly dominating competitions. Further, while permitting trans students to participate on sports teams that align with their gender does not pose any harm to cis students, preventing them from doing so does pose great harm to the trans students who are excluded. Hopefully, the Department of Education’s future rulemaking will explicitly protect the rights of trans students to participate fully in education and school activities.
Gillian is a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Her social justice interests include juvenile justice, education, and issues impacting the LGBTQ+ community. In her free time, she enjoys playing video games, cooking, and volunteering with animal rescue groups.