If the ‘Bostock’ test applies to Title IX, there should be an exception banning transgender athletes from competing against the opposite sex.
Several months ago, Chelsea Mitchell, an award-winning athlete from Connecticut, wrote a powerful letter in which she expressed the difficulties and struggles that she endured when having to compete in track-and-field events against boys. Mitchell lost numerous state championship titles, as well as other opportunities. Sadly, Mitchell is not the only athlete who has been unfairly disadvantaged and hurt by policies permitting transgender males to compete against females in athletic competitions. However, while the unfairness associated with such policies is glaringly obvious, the Supreme Court’s recent opinion in Bostock v. Clayton County, Georgia created a dilemma that needs to be clarified. Specifically, at some point, the Supreme Court will need to address whether, and to what extent, its decision and reasoning in Bostock applies in the context of school sports and Title IX. In Bostock, the Supreme Court issued a single opinion involving several cases alleging discrimination against various employees. As reported by the U.S. Equal Employment Opportunity Commission: As a result, the Supreme Court was asked to decide whether an employer can fire someone simply for being homosexual or transgender pursuant to Title VII. In response to this important inquiry, the Supreme Court ruled that the term “sex” includes a person’s “gender identity” in cases of discrimination pursuant to Title VII. As reported in The National Law Review, the Bostock court held that “Title VII’s prohibition against ‘sex discrimination’ includes a prohibition against discrimination based on sexual orientation and gender identity.” In other words, since Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex (among other things), it also protects against discrimination based on “gender identity,” which the court ruled falls under the umbrella of the term “sex,” as used in Title VII. The Supreme Court’s broad definition of “sex” in the Bostock case created a dilemma. While the court’s ruling was seemingly limited to cases involving Title VII (employment discrimination), the broad definition has been applied in other contexts, including, but not limited to, Title IX, school sports, and health. For example, on January 20, 2021, President Biden issued an executive order which, in essence, threatened to “take federal education funds away from any state that refuses to allow transgender athletes to compete in whatever category they feel like choosing.
