Within hours of taking office, President Joe Biden effectively ordered women’s sports and athletic scholarships to go co-ed.
On Wednesday, the president signed an Executive Order that “builds on the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020),” which prohibits employers from discriminating on the basis of gender identity or transgender status. The order requires the federal government to apply the Court’s ruling to all federal anti-discrimination statutes—including Title IX, the 1972 statute that outlaws sex discrimination in education, including athletics.
Title VII of the 1964 Civil Rights Act prohibits employers from discriminating “because of sex.” But the statute does not mention gender identity or transgender status. In an opinion by Justice Neil Gorsuch, the Supreme Court in Bostock confirmed that the statute refers only to biological sex. Gorsuch reasoned, however, that discrimination on the basis of gender identity is a form of “sex” discrimination because a transgender person’s status can only be defined in relation to his or her biological sex at birth.
Prior to Bostock, courts interpreted federal sex-discrimination law as prohibiting policies that favor one sex over the other—not as prohibiting all policies that separate or distinguish between males and females on the basis of biological differences. Thus, while Title IX mandates that schools treat male and female athletes equally, regulations implementing the statute allow separation of the sexes for purposes of athletic competition.
In an amicus brief filed in August 2019, IWF warned the Supreme Court that a broad ruling in favor of the transgender employee could have potentially disastrous repercussions for female athletes.
Although some proponents of women’s sports hoped that the Bostock decision would be interpreted narrowly to apply only to workplace discrimination, the Biden order compels federal agencies to apply the Court’s ruling across the board.
Bostock established a but-for test in which an employer can be held liable for discrimination any time that an employee’s sex factors into an decision. Applying this test to schools means that coaches cannot consider the sex of the player in determining whether they make the team. Under such an approach, schools will be forced to allow transgender women (who were born male) to tryout for and compete on women’s sports teams. But, more significantly, they may be forced to allow male athletes who are not good enough to compete on the men’s team try out for the women’s team.
Suppose, for example, a male student fails to make the men’s college lacrosse team but then tries out for the women’s team and demonstrates that he is a better player than any of the female players. Or suppose that a male student wants to play on his college’s field hockey team. Under the reasoning in Bostock, the coaches of these teams cannot deny roster spots to athletically superior male players (which most of them will be) simply because they are male.
So what is to stop a male student, armed with the new order, from claiming the right to try for a spot on a women’s team (and, potentially, an athletic scholarship)? Absolutely nothing.
And since a school cannot separate athletes into men’s and women’s teams without considering the sex of the participants, Biden’s order applying Bostock to Title IX raises questions as to whether schools will be able to offer single sex teams at all.
All of this, of course, undermines the very purpose of Title IX, which was to expand educational opportunities for women. But if achieving complete gender neutrality means that some female athletes will lose out, I guess that’s a price that President Biden is willing to pay.