This fall, the U.S. Supreme Court takes up the case of R.G. & G.R. Harris Funeral Homes v. EEOC. The case involves the contours of Title VII’s prohibition on sex discrimination in employment, but will have broad implications for women and girls who participate in competitive sports.

The specific dispute before the high court arose in 2013, when a funeral home employee known as Anthony Stephens told the company’s owner that, after scheduled time off, he would return to work as Aimee Stephens and use female pronouns. The owner of the funeral home decided to terminate his professional relationship with Stephens.

Stephens sued, alleging that the funeral home violated Title VII of the Civil Rights Act’s prohibition on sex-based discrimination. A lower court initially held that Stephens could not sue on the basis of transgender status because the statute does not identify transgender status or gender identity as a protected class. The  U.S. Court of Appeals for the Sixth Circuit reversed, holding that the employee’s decision to fire Stephens was “because of sex” and, therefore unlawful.

The Supreme Court is scheduled to hear oral arguments in the case in October.

An Unintended Consequence?

As an organization committed to equal opportunity, Independent Women’s Forum is concerned that any ruling expanding the statutory meaning of “sex” to include transgender status will have the unintended consequence of reducing opportunities for female athletes. IWF’s Center for Law and Liberty has, therefore, filed a friend-of-the-court brief in support of the employer.

When Congress passed Title VII in 1964, it banned employers from treating an individual less favorably than similarly-situated individuals of the opposite biological sex. Congress did not address the issue of discrimination because of an individual’s gender identity or transgender status.

Eight years later, Congress enacted Title IX to prohibit sex discrimination in education. Title IX has been instrumental in expanding athletic opportunities for women and girls. The explosion in women’s sports since 1972 is due, at least in part, to the law’s requirement that schools provide equal opportunities for male and female athletes to play sports.

Because courts generally interpret similar language in Title IX the same way as Title VII, a ruling that interprets the employment statute broadly to include transgender status and/or gender identity will apply not only to employment, but also to education, including athletics.

Such an interpretation will mandate unrestricted participation in women’s sports by male-to-female transgender athletes and will, inevitably, reduce the number of opportunities for biological women and girls. That is because individuals born male are, on average, physiologically stronger, bigger and faster than those born female.

If athletes born male are allowed to compete on women’s teams and in women’s divisions of sport, there will, quite simply, be fewer roster spots for biological females and fewer opportunities for biological females to win competitions and secure scholarships.

In the long run, a ruling interpreting “sex” to include gender identity will undermine the legal justification for maintaining any sex-specific athletic teams at all and could, logically, result in the elimination of women’s sports altogether. Indeed, some activists hope for just such a result, arguing that sex is a social construct and that sex-segregation in sport is inherently unjust and should be illegal. But is there any doubt that without sex-specific sport, the majority of athletic opportunities would go to men? Title IX was not passed to achieve such a result.

Transgender participation in competitive athletics presents complicated issues that are not easily resolved by blunt, one-size-fits-all judicial decrees. But, if the Supreme Court interprets federal anti-discrimination law to prohibit distinctions on the basis of transgender status, it will impose just such a decree—without consideration of context or circumstance—on businesses, schools, and athletic associations across the entire country.

Policy-making bodies, not the courts, are best suited to address complicated social issues, such as these. In the U. S. Congress, such deliberations are, in fact, ongoing. The Supreme Court should not interfere with the deliberative, democratic process and risk eliminating athletic opportunities for women and girls.

Jennifer C. Braceras is the director of the Center for Law & Liberty at Independent Women’s Forum. Anita Y. Milanovich, attorney at Milanovich Law, has litigated constitutional issues for 15 years and is counsel of record for IWF’s brief.

Reprinted with permission from the September 4, 2019 online edition of The National Law Journal © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].