The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm delighted to report that Michael Rosman of the Center for Individual Rights (whose work I have known and admired for decades) will be blogging this coming week about his new article, Gender Identity, Sports, and Affirmative Action: What's Title IX Got To Do With It? Here's an excerpt from the Introduction:
Recently, state and local jurisdictions have held that schools cannot discriminate against individuals on the basis of gender identity with respect to separate sex sports teams. That is, they have held that biological males who identify as females—whom I will refer to as "trans females"—must be permitted to participate on female sports teams. Some have relied upon Title IX of the Educational Amendments of 1972 to justify this position, claiming that Title IX's prohibition of discrimination on the basis of sex requires the policy.
This, in turn, has led others to claim that the policy is both unwise (a point I will not address), not required at all by Title IX, and in fact, illegal discrimination against biological females in violation of Title IX. In essence, opponents argue that males possess unfair biological advantages compared with females, and that forcing biological females to compete against biological males, including trans females, constitutes sex discrimination against biological females….
These differing views of Title IX start with the same statutory language. One takes that language and concludes that certain conduct (allowing trans females to play on female teams) is mandatory, while the other asserts that the same conduct is prohibited.…
For more on resolving this puzzle, tune in to the forthcoming posts.