Education Dept.: High Court Ruling Does Not Support Transgender Athletes

By Mark Walsh — September 14, 2020 4 min read
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The Trump administration is doubling down on its view that transgender female athletes are taking away opportunities from cisgender girls in violation of Title IX, and it argues that the U.S. Supreme Court’s recent decision that federal anti-discrimination law protects transgender employees does not alter that equation.

The U.S. Department of Education’s office for civil rights sent a letter recently to the Connecticut Interscholastic Athletic Conference and six school districts saying that the high court’s June 15 decision in Bostock v. Clayton County, Ga., did not necessarily apply to Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs.

“The court’s opinion in Bostock also does not affect the department’s position that its regulations authorize single-sex teams based only on biological sex at birth—male or female—as opposed to a person’s gender identity,” said the Aug. 31 letter signed by Kimberly M. Richey, the Education Department’s acting assistant secretary for civil rights.

The new letter follows up on a May 15 “letter of impending enforcement action” backing a complaint by three female track athletes who alleged that the transgender participation policy of the CIAC denied them athletic benefits and opportunities in violation of Title IX.

OCR in May threatened the CIAC and six Connecticut school districts with a loss of federal funds or other enforcement actions, though the transgender participation policy is also the subject of a lawsuit pending in federal district court in Connecticut brought by the same three cisgender female track athletes.

In the new letter, OCR seeks to explain why the Bostock decision does not support the Connecticut athletics authority’s policy of permitting transgender female athletes to compete in girls categories.

First, OCR notes that the Supreme Court majority expressly declined to analyze how its conclusion that Title VII protected transgender (as well as gay and lesbian) employees might affect other laws such as Title IX.

“None of these other laws are before us,” Justice Neil M. Gorsuch had said for the majority. (He referred to arguments made by employers, though it was Justice Samuel A. Alito Jr., in a dissent, who expressed fears that the majority’s logic would apply to transgender athlete cases under Title IX. Alito specifically cited the Connecticut case.)

In the new letter, OCR pointed to what it calls a concession made by the lawyer arguing for a transgender funeral home worker in the companion case to Bostock. David D. Cole, the legal director of the American Civil Liberties Union, in an exchange during oral arguments in the case last October, said that whether transgender female athletes could compete on female sports teams “would not be affected even by the way that the court decides this case.”

“After reviewing Bostock, the office for civil rights concurs with counsel for the employee’s concession in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, that the Bostock holding does not alter the legal authority for sex-segregated teams under Title IX,” OCR said in the new letter. “Even if Bostock applied to Title IX—a question the Supreme Court expressly declined to address—its reasoning would only confirm that Title IX does not permit a biologically male student to compete against females on a sex-segregated team or in a sex-segregated league.”

Chase Strangio, the deputy director for trans justice with the ACLU’s LGBT & HIV Project, responded to the OCR letter with a statement that said it represented “a continuation of the Trump administration’s attacks on transgender youth.”

The ACLU has intervened in the Connecticut lawsuit to represent the transgender athletes.

“In Bostock and in subsequent cases applying Bostock to Title IX, the courts have been clear that federal laws prohibiting sex discrimination prohibit discrimination based on transgender status,” Strangio said. “Two federal appeals courts have ruled that Title IX protects transgender people from discrimination in schools in the past month alone.”

Indeed, two federal appeals court have recently held that Title IX protects transgender students in schools with regard to allowing them to use restrooms consistent with their gender identity, and both courts said that Bostock bolstered the students’ claims. Meanwhile, a federal district judge last month blocked an Idaho law that bars transgender females from participating on girls’ or women’s school athletic teams. Although the injunction was based on the 14th Amendment’s equal-protection clause, the judge suggested that OCR’s views in the Connecticut case were of “questionable validity” given the Supreme Court’s Bostock decision.

Still, OCR argues in the new letter that Title IX differs from Title VII in several important respects.

“Significantly, unlike Title VII, one of Title IX’s crucial purposes is protecting women’s and girls’ athletic opportunities,” the OCR letter says. “If Bostock‘s reasoning under Title VII were applied to policies regarding single-sex sports teams under Title IX, it would confirm that the department’s regulations authorize single-sex teams only based on biological sex.”

OCR argues that Congress gave the Education Department broad latitude in developing regulations under Title IX for scholastic sports programs. And it argues that “special exceptions from single-sex sports teams based on homosexuality or transgender status would themselves generally constitute unlawful sex discrimination, because homosexuality and transgender status are not physiological differences relevant to the separation of sports teams based on sex.”

OCR’s action against the CIAC and the six school districts remains pending, as does the federal lawsuit.

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A version of this news article first appeared in The School Law Blog.