Justice Department Filing Against Treating Male-to-Female Transgender Athletes as Women
From the Justice Department’s Statement of Interest filed yesterday in Soule v. Connecticut Ass’n of Schools, Inc.; I expect there’ll be a response to it filed, and I’ll be glad to blog that as well:
[A.] Title IX requires that “[n]o person in the United States shall, on the basis of sex, … be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. §1681(a); accord 34 C.F.R. § 106.41(a). Title IX’s prohibition against sex discrimination extends to athletics operated or sponsored by recipients of federal money. 34 C.F.R. § 106.41. As a result, covered institutions must “provide equal athletic opportunity for members of both sexes.” Id. § 106.41(c).
The Connecticut Interscholastic Athletic Conference (CIAC), however, has adopted a policy that requires biological males to compete against biological females—despite the real physiological differences between the sexes—if the male is a transgender individual who publicly identifies with the female gender. CIAC claims that “federal law” requires this state of affairs. CIAC 2019-2020 Handbook (CIAC Handbook), at 55, http://www.casciac.org/pdfs/ ciachandbook_1920.pdf; see also Defs.’ Initial Summ. Issues at 7, ECF No. 63. So do the proposed student-intervenors. See Mot. to Intervene at 11, ECF No. 36.
They are incorrect. Title IX and its implementing regulations prohibit discrimination solely “on the basis of sex,” not on the basis of transgender status, and therefore neither require nor authorize CIAC’s transgender policy. To the contrary, CIAC’s construction of Title IX as requiring the participation of students on athletic teams that reflect their gender identity would turn the statute on its head. One of Title IX’s core purposes is to ensure that women have an “equal athletic opportunity” to participate in school athletic programs. 34 C.F.R. § 106.41(c); see also Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993) (“Equal opportunity to participate lies at the core of Title IX’s purpose.”). Schools realize that purpose primarily by establishing separate athletic teams for men and women and by ensuring that those teams are on equal footing. See 34 C.F.R. § 106.41(b)-(c). Because of the physiological differences between men and women, the existence of women’s sports teams permits women to participate more fully in athletics than they otherwise could.
Under CIAC’s interpretation of Title IX, however, schools may not account for the real physiological differences between men and women. Instead, schools must have certain biological males—namely, those who publicly identify as female—compete against biological females. In so doing, CIAC deprives those women of the single-sex athletic competitions that are one of the marquee accomplishments of Title IX. The United States therefore submits this Statement of Interest to aid the Court in the proper application of Title IX in this case….
[B.] Title IX prohibits “discrimination” in educational programs and activities “on the basis of sex.” 20 U.S.C. § 1681(a). Although Title IX includes statute-specific definitions of various terms, “sex” is not one of them. See id. § 1681(c) (defining “educational institution”); id. § 1687 (defining “program or activity” and “program”). Without such a definition, the term “sex” should “be interpreted as taking [its] ordinary, contemporary, common meaning.” Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014) (citation omitted).
When Congress enacted Title IX in 1972, the “ordinary, contemporary, common meaning” of “sex” was biological sex. In that same year, 1972, the United States explained to the Supreme Court that “sex, like race and national origin, is a visible and immutable biological characteristic,” U.S. Br. at *15, Frontiero v. Laird, No. 71-1694, 1972 WL 137566 (U.S. Dec. 27, 1972), and the Court agreed that “sex” is “an immutable characteristic determined solely by the accident of birth,” Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
Also during the time period surrounding Title IX’s enactment, dictionaries defined “sex” as referring to the physiological distinctions between males and females, and more particularly their reproductive functions. For example, Webster’s Third defined “sex” as “one of the two divisions of organic esp. human beings respectively designated male or female,” or “the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction.” Webster’s New International Dictionary 2081 (3d ed. 1968). Other contemporaneous dictionaries defined “sex” similarly. See, e.g., American Heritage Dictionary of the English Language 1187 (1st ed. 1969) (“1. a. The property or quality by which organisms are classified according to their reproductive functions. b. Either of two divisions, designated male and female, of this classification.”); The American College Dictionary 1109-10 (1970) (“1. The character of being either male or female 2. The sum of the anatomical and physiological differences with reference to which the male and female are distinguished or the phenomena depending on these differences.”); The Random House College Dictionary 1206 (1973) (“1. either the male or female division of a species esp. as differentiated with refere
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