This past week, a federal court ruled that Title IX’s overarching purpose was to protect equal opportunities for women in education and in sports in particular. Crucially, the court rejected the Biden administration’s claim that the word “sex” in two different federal laws includes “sexual orientation” and “gender identity.” This is a major win for both religious liberty and women’s athletics.
In Neese v. Becerra, two physicians brought suit to challenge the Biden administration’s mandate pursuant to Section 1557 of the Affordable Care Act that health professionals must permanently alter a minor patient’s sex—even if doing so violates the doctor’s best medical judgment or her religious beliefs. That mandate is based on the language of Title IX which prohibits recipients of federal funds from discriminating “on the basis of sex”
In defending the case, the Biden administration focused on the Supreme Court’s ruling in Bostock.That case held that Title VII’s “because of sex” language also prohibited “sexual orientation” and gender identity” discrimination in employment.
The federal court held that Bostock does not apply beyond Title VII and the employment context. The Court noted that Bostock itself expressly noted that its holding did not sweep beyond Title VII.
The federal district court noted that Title IX’s protections are based on the differences between the two biological sexes and nothing more. In fact, Title IX allows and sometimes even requires differential treatment in order to promote equal opportunity. The court also found the context of Title IX to be enlightening—“Title IX was enacted in response to evidence of pervasive discrimination against women with respect to educational opportunities.” “It would require blinders,” the court continued, “to ignore that the motivation for promulgation of the regulation on athletics was the historic emphasis on boys’ athletic programs to the exclusion of girls’ athletic programs in high schools as well as colleges.”
The Biden administration’s interpretation of Title IX put at risk “the very opportunities for women Title IX was designed to promote and protect.” As the court described, physical differences between men and women “are enduring” and “remain cause for celebration.” Yet the Biden administration’s reading of Title IX imperiled “[Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.” It would have the effect of requiring biological men to compete against biological women.
The lower court was right to reject the Biden administration’s expansion of federal law to force doctors to perform permanently altering medical procedures on minors despite conscience objections and to preserve a level playing field for women’s sports.