The Volokh Conspiracy
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Title IX, Gender Identity, and the Consequences of Equity
Do the principles of Title IX in sports apply elsewhere?
On my last day of guest blogging, I want to begin by returning to the question of trans females participating on female-only teams and what, if anything, Title IX has to say about it.
On December 16, 2022, the Second Circuit decided a case, Soule v. Connecticut Ass'n of Schools, Inc., in which high school female athletes claimed that the defendant violated Title IX by permitting trans females to compete against them in track and field. The case was dismissed, primarily on justiciability grounds, and the Second Circuit affirmed. The interesting part for me though, was the positions taken by the federal government in the district court.
During the Trump Administration, the federal government took plaintiffs' side, apprising the court that an investigation by the Office of Civil Rights of the Department of Education had concluded that there likely was a Title IX violation. When the Biden Administration came in, it withdrew that position and apprised the court that the DOE's enforcement letters were unauthorized because they had not been approved by OMB. The Biden Administration has subsequently taken the position that Title IX requires schools receiving federal funds to allow trans females to participate on female-only teams.
Thus, both administrations (and both sides of the issue) think Title IX has something to say about the question, and that Title IX requires (as opposed to merely permits) the position they favor. This is different from most statutory interpretation questions in which one side usually claims that some practice—say, race-conscious affirmative action—is prohibited and the other simply argues that it is permitted (i.e., not prohibited). Maybe there's an analogy in the arguments surrounding the religion clauses of the First Amendment, but at least there's two different provisions there (the Free Exercise Clause and Establishment Clause). At the very least, it is unusual.
We touched on the pro-trans female side on Tuesday when we discussed the difficulties of discerning individual cases of discrimination when sex segregation is otherwise permitted. A trans female forced to compete on a male team is being treated exactly like persons of the opposite gender identity, so it would be hard to characterize it as "sex" discrimination even if that term includes gender identity. If it does not, and the trans female's sex is deemed male, that person is being treated differently from those of the opposite sex, but in the same way that every athlete deemed male is being treated differently.
What about the other side? The argument that permitting the trans female to compete on female teams violates Title IX depends on administrative interpretations that Title IX's application to sports precludes open teams in which skill is the criterion for selection. Indeed, it goes beyond those interpretations, which only require rough proportionality in participation that is probably not affected by the participation of just a few trans females. I've expressed some doubts about the administrative interpretation of a statute whose text just precludes discrimination. I am not convinced it is consistent with a separate subsection of Title IX that precludes a requirement of preferences because of an imbalance between different sexes. If Title IX simply permits open teams—not requires, just permits—it would be hard to argue that permitting a few trans females on a female team violates that statute. But even if I'm wrong about the interpretation, it would at least be good if those making the argument that cis females are suffering discrimination by being forced to compete with trans females acknowledge the unique provenance of their argument—that in sports (and only sports) "non-discrimination" means that females do not have to compete with males.
And it does seem rather odd that the Trump Administration waited for the Soule case to take this position. In Massachusetts, the state Equal Rights Amendment was interpreted in 1978 to permit males to compete on female teams under certain circumstances (primarily where there is no male team in a given sport). And they do. And they frequently win. (Males have set records in female swimming events, for example.) If allowing trans females to compete on female teams is a violation of Title IX, shouldn't allowing cis males to compete be as well? If it is, why hasn't the federal government taken steps to remedy the situation?
Another question that arises from the equity vision of Title IX in sports is why that vision is not applicable to other anti-discrimination laws and sports. Or even outside sports.
The Age Discrimination Act, in language quite similar to Title VI and Title IX (but without the latter's limitation to educational programs), precludes age discrimination by those receiving federal financial assistance. More and more older Americans are attending college. (Twelve percent of students at private undergraduate institutions are 40 or over.) And it is fairly well-established scientifically that we lose muscle mass, heart capacity and a whole host of other attributes important for athletic success as we age. Should varsity athletic spots and scholarships be provided for older Americans attending colleges in keeping with their proportion of the undergraduate population at their institutions?
And what of the disabled? Section 504 of the Rehabilitation Act and the Americans with Disabilities Act both preclude discrimination against the disabled, and surely there are many disabled individuals who are unable to compete with able-bodied individuals, even with accommodations. If the disabled constitute 2-3% of an undergraduate population, shouldn't we reserve that percentage of undergraduate varsity spots and scholarships for the disabled? For example, one could make wheelchair tennis, already a popular sport, part of intercollegiate tennis matches.
Yes, of course, there are distinctions. Age is on a continuum and sex, at least when Title IX was enacted, was thought to be binary. There are many different kinds of disability, and it would be very difficult to determine how to distribute benefits among them. My point is that no one even considers the possibility that these statutes might provide some kind of preference in varsity-level sports for older people and/or the disabled. The equity vision of Title IX in sports has not infiltrated other statutes, perhaps because we keep thinking and talking of Title IX as a standard non-discrimination statute.
Would the equity conception of non-discrimination be limited to sports? If a university had merit scholarships that were based on criteria that placed those with learning disabilities at a disadvantage, should it reserve a certain percentage of those scholarships for those disabled?
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Astute VC readers may have noticed that I have said nothing this week about hormone blockers, fairness in competition generally, inherited traits or other physiological advantages (height, for example) that significantly differ within a sex and that help in sports, or any of a myriad of things that might be considered in determining whether permitting trans females to participate on female-only teams is a good policy. Quite intentionally so. Those are complicated questions. My only suggestion is that perhaps Title IX is not the right tool to resolve them.
Thanks again to Eugene and the Conspirators for allowing me to guest blog here.