Several months ago, Chelsea Mitchell, an award-winning athlete from Connecticut, wrote a powerful letter in which she expressed the difficulties and struggles that she endured when having to compete in track-and-field events against boys. Mitchell lost numerous state championship titles, as well as other opportunities.
Sadly, Mitchell is not the only athlete who has been unfairly disadvantaged and hurt by policies permitting transgender males to compete against females in athletic competitions. However, while the unfairness associated with such policies is glaringly obvious, the Supreme Court’s recent opinion in Bostock v. Clayton County, Georgia created a dilemma that needs to be clarified. Specifically, at some point, the Supreme Court will need to address whether, and to what extent, its decision and reasoning in Bostock applies in the context of school sports and Title IX.
In Bostock, the Supreme Court issued a single opinion involving several cases alleging discrimination against various employees. As reported by the U.S. Equal Employment Opportunity Commission:
Gerald Bostock, a child welfare services coordinator, was fired after his employer learned he had joined a gay softball league. Donald Zarda, a skydiving instructor, was fired after his employer learned he was gay. In a case filed by the EEOC, funeral director Aimee Stephens was fired after her employer learned that she was going to transition from male to female.
As a result, the Supreme Court was asked to decide whether an employer can fire someone simply for being homosexual or transgender pursuant to Title VII.
In response to this important inquiry, the Supreme Court ruled that the term “sex” includes a person’s “gender identity” in cases of discrimination pursuant to Title VII. As reported in The National Law Review, the Bostock court held that “Title VII’s prohibition against ‘sex discrimination’ includes a prohibition against discrimination based on sexual orientation and gender identity.”
In other words, since Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex (among other things), it also protects against discrimination based on “gender identity,” which the court ruled falls under the umbrella of the term “sex,” as used in Title VII.
The Supreme Court’s broad definition of “sex” in the Bostock case created a dilemma. While the court’s ruling was seemingly limited to cases involving Title VII (employment discrimination), the broad definition has been applied in other contexts, including, but not limited to, Title IX, school sports, and health.
For example, on January 20, 2021, President Biden issued an executive order which, in essence, threatened to “take federal education funds away from any state that refuses to allow transgender athletes to compete in whatever category they feel like choosing.” In issuing this order, Biden relied, in part, on the court’s definition of “sex” in Bostock.
Recently, the Department of Education announced that transgender students are protected under Title IX, which [now] protects people from discrimination based on sex, gender identity, and sexual orientation, in any educational setting that receives federal aid. Again, the decision was based on the court’s decision in Bostock and the broad definition of “sex.”
While Biden and the Department of Education have relied on Bostock to extend protections under such laws as Title IX, their reliance on Bostock is somewhat misplaced and premature. In Bostock, the Supreme Court specifically noted:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’
Consistent with this language, it is abundantly clear that the Bostock decision did not extend protections under Title IX. Rather, the Supreme Court specifically noted the limited reach of the Bostock decision to cases involving Title VII.
The trouble, of course, stems from the majority’s reasoning in Bostock. There, Justice Neil Gorsuch noted that what matters is that an employer “who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
While the court’s decision in Bostock was purportedly limited to Title VII cases, its reasoning opened the door to other potential applications, including Title IX. Since the court applied a “but-for” type analysis in Bostock, discrimination could be established even if an employer had another legitimate reason to terminate an employee, so long as sex was a factor in the decision.
The Supreme Court must provide some much-needed clarity to its decision for school sports. In light of Bostock, Biden has issued an executive order threatening to withhold federal education funds from states barring transgender athletes from participating in the category that they choose. The Department of Education also recently announced that transgender students are protected under Title IX in accordance with Bostock. Moreover, lower courts throughout the nation have issued broad and “protective” rulings in various contexts based on the Bostock decision.
Unlike employment discrimination, applying the “but-for” test in cases of school sports should not be the guiding formula. Stated differently, if the Bostock test applies to Title IX, there should be a potential exception prohibiting transgender student-athletes from competing in the categories that they identify with. Otherwise, under Bostock, it would be merely impossible to come up with a scenario in which a biological male who is transitioning to a female could legally be barred from competing against one or more biological females, as any ban would somehow relate to “sex.”
If the Bostock decision even applies to Title IX, fundamental fairness and equal opportunity compel such an exception. Female student-athletes have been unfairly forced to compete against boys or men who identify as girls or women. One such example is the case of Selina Soule, a track star at Bloomfield High School in Connecticut, who was unable to qualify for regionals in the 55-meter run because two spots were taken by boys who identified as girls and ran faster.
This was due to a policy that was implemented by the Connecticut Interscholastic Athletic Conference that permitted boys to compete in girls’ athletic competitions if they claimed female gender identity. There are other examples where boys who were transitioning into girls went on to win championships while competing against girls. Such examples can be found here, here, and here.
As a result, many states have recently proposed laws banning transgender student-athletes from competing in the categories that they identify with. These laws make complete sense given the physiological differences between boys and girls. These differences also explain the different standards for male and female athletes in various sports.
For example, the weight of a high school shot put is 4 kilograms for girls and 5.44 kilograms for boys, while the height of a hurdle is 33 centimeters for the girls’ 100-meter hurdle event and 39 centimeters for the boys’ 110-meter hurdle event. There are also numerous examples and studies comparing the athletic performance between elite female athletes and males whereby the males outperformed their female counterparts. One such study can be viewed here.
There are clear differences between boys and girls that are more easily apparent in sports. Female athletes deserve a fair opportunity to compete and to succeed, and it is simply unfair and unjust to allow biological boys to compete with biological girls.
The Supreme Court must provide some guidance and clarity on this issue. Presently, many are using the high court’s decision and reasoning in Bostock to promote, justify, and encourage transgender student-athletes to compete in the categories that they identify with, which is severely hurting women’s sports.
Without some clarity, women’s sports will be permanently marred with unfairness, inequality, and lost opportunities for female athletes.
