The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When we prohibit "discrimination" what do we normally mean? It is that the prohibited criteria (race, sex, religion, age) should not be considered. Two people applying for a job, one male and one female; the decision should be made without consideration of either person's sex (assuming that sex is not a bona fide occupational qualification or BFOQ).
The BFOQ is an example of when we make a specific exception to the general rule that a prohibited criteria should not be considered. Another (unwritten) exception would be the "heightened scrutiny" applicable to certain kinds of presumptively unconstitutional discrimination by state actors under the Equal Protection Clause of the Fourteenth Amendment. So states can provide contracting preferences for certain racial groups if the preferences meet the requirements of "strict scrutiny." These exceptions are permissive, not mandatory. A state agency can provide contracting preferences, but generally speaking, it is not required to do so.
As I pointed out yesterday, Title IX has some explicit exceptions (e.g., for father-son and mother-daughter events). These exceptions are permissive. The statute permits sex-segregated housing, but it does not require it.
One could argue that under principles of expressio unius, we should not imply any unwritten exceptions. The Supreme Court has not opined on this question, but the consensus among lower courts is that Title IX also permits sex-conscious decisions that meet some form of "heightened scrutiny." (Curiously, this consensus derives from the Supreme Court's opinion back in Bakke that Title VI of the Civil Rights Act of 1964, generally viewed as the model for Title IX, only prohibited race-conscious decision-making violative of the Equal Protection Clause. My understanding is that at least one Justice asked some questions about the correctness of that interpretation in the college admissions cases argued this past Halloween.)
One possible interpretation of Title IX is that schools receiving federal funds cannot limit any sports teams to one sex or another. That is certainly how we interpret Title VI, which precludes federal fund recipients from discriminating on the basis of race. Schools cannot have separate sports teams for different races. But even after Title IX was passed, people seemed to agree that schools receiving federal funds should be able to have sports teams segregated by sex.
There were two theories about why this should be so, each with somewhat different consequences. One was that women were behind in sports because of past discrimination and needed some time and training to catch up. (This was, curiously, the position of the National Organization of Women, at least as relayed in a letter by then-HEW Secretary Caspar Weinberger to President Ford.) A second was that men were bigger and stronger by nature and, accordingly, that women could not compete head-to-head with men. As time has passed, and the effects of past discrimination become more difficult to discern (especially among young high school and college athletes), the second theory has become more popular.
Separate sports teams for females have been held to meet heightened scrutiny: permitting opportunities for females to participate in sports is an important or compelling interest, and separate sports teams on which males are ineligible is the only way to achieve that goal. This usually arises in the context of a male suing to play on a female team in a sport (e.g., field hockey) where there is no male team available. More recently—just a few weeks ago, in fact—it came up in a case of a trans female seeking to play on female sports teams in violation of West Virginia law.
But, again, meeting heightened scrutiny means only that schools receiving federal funds may provide separate sports teams that exclude males. By itself, it does not mean that teams open to everyone violate Title IX. More generally, norms of non-discrimination are not usually deemed violated just because a required or helpful talent is not evenly distributed between males and females. As I noted yesterday, a school can sponsor a chorus of tenors and basses without violating Title IX even though few if any women would qualify.
Note that when we permit segregation of males and females, it becomes more difficult to identify a case of individual discrimination. Rather, discrimination then results from treating one sex as a whole better or worse than the other, e.g., having fewer restrooms for women.
If a school receiving federal funds decided to require one person from each sex to use the restroom designated for the opposite sex—perhaps as an effort to sensitize the persons involved to the difficulties of being a member of the opposite sex—it is hard to call anyone so treated a victim of sex discrimination. Sex discrimination usually occurs when one is treated differently because of sex. Under this hypothetical, the designated restroom switchers are not being treated differently from someone of the opposite sex; they are being treated exactly the same as someone of the opposite sex. They are using the restroom designated for the opposite sex. While they are being treated differently from members of their own sex, that is not sex discrimination any more than paying one white employee more than another for doing the same job is race discrimination.
The same holds true, I believe, if the designated restroom switcher is a trans male or female. Assume that Pat is a trans male and that a trans person's sex is the same as gender identity. Pat being forced to use a restroom designated for females is not being treated differently from most people whose gender identity is female; Pat is being treated exactly the same as those individuals. Of course, if Pat's "sex" is biological sex (female) rather than gender identity, then Pat is being treated differently from those whose biological sex is male. But so is every other person whose biological sex is female.
Of course, there is discrimination going on when a trans male is required to use a female restroom: discrimination based on transgender status. The trans male is being treated differently from cis males (whose sex at birth was male and who still identify as male). But to make that into "sex" discrimination, one would have to show that "sex" includes not only biological sex and gender identity, but also transgender status, and that may be a more difficult hill to climb. At first glance, at least, transgender status is as much a "sex" as "convert" is a "religion." Remember that in Bostock, the Court assumed that "sex" in Title VII meant only biological sex. It could do so because there was no segregation going on there. The Court specifically refused to address whether sex-segregated bathrooms or locker rooms violated Title VII.
Does Title IX prohibit schools receiving federal funds from requiring trans females to compete on teams consisting primarily of males? Not unless "sex" in Title IX is read to include transgender status. If "sex" in Title IX is understood only as one's current biological sex or gender identity, then it does not. Of course, discrimination on the basis of transgender status might violate the Equal Protection Clause for state-run schools, but that is a separate question.
So perhaps Title IX precludes permitting trans females from competing on female teams, as some have argued. That argument depends on Title IX being understood not simply as permitting separate sports teams for biological females but requiring them—that is, precluding biological males from competing with biological females. We will look at the administrative interpretations of Title IX that have led to that conclusion tomorrow.