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Katie

The uncertain future of Title IX

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There may soon be legal challenges to the existence of women-only college sports teams. Here’s why. 

As I understand it, in the recent Bostock v. Clayton County case, the Supreme Court considered what it meant for the Civil Rights Act of 1964 to protect against employment discrimination on the basis of sex.

According to the Court majority, discrimination on the basis of sex includes discrimination against "traits or actions" that would not be questioned in members of a different biological sex. Bostock's underlying logic, in essence, is that employers must treat both biological sexes the same way.

Now consider Title IX.

Title IX, of course, outlaws discrimination on the basis of sex in federally funded educational programs or activities -- including athletics. However, Bostock's underlying logic could encourage legal challenges to the manner in which Title IX is currently interpreted. As one writer put it:

Quote

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. The coach of the women’s team can only deny that player a roster spot if she considers the player’s sex. In this case, the player would be placed on the team but-for his sex. This is exactly what [the Court] says federal sex discrimination law forbids [in Bostock]. 

There very well may soon be a lawsuit along those lines. And if that happens, how will the courts respond? It's hard to say. But it seems likely that they will have to depart from Bostock's underlying logic in some way.

Edited by Katie

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Yes this is a slippery slope.  I have 2 sons and 2 daughters.  To deny that they are gifted with different talents and capabilities is beyond reason.  Although my daughters have outperformed the males in their classroom in some physical competitions, they are not close physically to my sons.  If we don’t allow for true DNA based segregation of women’s athletics I fear that women will not have an avenue to compete in athletics.  

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I'd add that if Congress responds to Bostock by amending Title IX to specifically allow for segregation in sports along the lines of sex, then there could potentially be a new debate about how to ensure women and men have an equal opportunity to participate in sports.

For example: Do expenditures for men's and women's teams have to be equal? Do the number of male and female athletes have to be equal? Are high school participation numbers relevant? Etc.

If there ever was an opportunity to refashion Title IX in a way that might help wrestling programs, that opportunity is now.

Edited by Katie

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Katie, You bring up a great topic. It was just a few years ago that the Texas HS State Wrestling Tournament was turned into a circus with Mack Beggs winning a 2nd State title.  Beggs a girl transitioning from female to male and taking a low dose of testosterone. Beggs had asked to compete in the boys division during the regular HS season but was denied. The University Interscholastic League (UIL) which is our governing body for public HS sports in Texas ruled that athletes are to compete under the gender on their birth certificate. 

 

 

 

 

 

 

 

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5 hours ago, TexRef said:

Katie, You bring up a great topic. It was just a few years ago that the Texas HS State Wrestling Tournament was turned into a circus with Mack Beggs winning a 2nd State title.  Beggs a girl transitioning from female to male and taking a low dose of testosterone. Beggs had asked to compete in the boys division during the regular HS season but was denied. The University Interscholastic League (UIL) which is our governing body for public HS sports in Texas ruled that athletes are to compete under the gender on their birth certificate.

I don’t know what the law says with respect to Texas high school athletics, but your post does illustrate a complication when you’re trying to provide athletic opportunities for everyone in a way that is fair and equal. 

Edited by Katie

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On 6/29/2020 at 12:39 PM, Katie said:

There may soon be legal challenges to the existence of women-only college sports teams. Here’s why. 

As I understand it, in the recent Bostock v. Clayton County case, the Supreme Court considered what it meant for the Civil Rights Act of 1964 to protect against employment discrimination on the basis of sex...

This is not what Bostock is about; if this is what that case meant, this issue the legality of having separate men's and women's sports would have arisen a long time ago. Bostock answered a different question, which was "is employment discrimination against gay or trans litigants "because of sex" as relevant under the specific legal context of Title IX." And the court said yes, because the sex of the person being discriminated against is central to the discrimination. It is "because of sex" because in the case of discrimination based on sexuality, a man who marries/dates a man is treated differently than a woman who marries/dates a man and in the case of transgenderism, a person is discriminated against for a gender identity different from the one assigned at birth. The dissenting justices felt that discrimination based on sexuality or gender identity were distinct from "sex discrimination" both linguistically and as a matter of statutory intent and therefore should have required an act of Congress to update Title IX.

It says nothing about whether the existence of separate sports programs for men and women are themselves inherently discriminatory (even though Justice Alito spent a page or two loudly wondering if maybe it was true) and the hypothetical lacrosse player you quoted would have no case . There have been situations where a boy wanted to play a sport that is *only offered* for girls - like field hockey - and I think the outcome of such cases has varied has varied from state to state as I recall it.

On 6/29/2020 at 3:46 PM, Katie said:

I'd add that if Congress responds to Bostock by amending Title IX to specifically allow for segregation in sports along the lines of biological sex, then there could potentially be a new debate about how to ensure women and men have an equal opportunity to participate in sports.

For example: Do expenditures for men's and women's teams have to be equal? Do the number of male and female athletes have to be equal? Are high school participation numbers relevant? Etc.

To break this post up, into the two separate points. (1) The issue of transgenderism in sports is absolutely going to come up. Schools will likely be required to allow trans female athletes to compete on women's teams. In minimize the politics here since I'm just trying to keep this about the law, I'll only say that the competitive impact is typically overstated and it's good to treat trans athletes with dignity and respect.

As for your second point, Bostock will not change anything with respect to the team composition and funding questions you raised. They are interesting questions, and the subject of a fair amount of litigation and consternation since the application of Title IX to college sports, but Bostock doesn't change the answers.

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I could definitely see changes happening with the interpretation of title IX in terms of how equality is counted, how sexual assault allegations are adjudicated, or questions about trans athletes competing on women‘s teams. However, there is no chance the court makes a decision to eliminate title IX and especially one that eliminateS women‘s athletics. If you’ve paid attention over the past couple weeks, Roberts and/or Gorsuch appear to tend toward socially liberal decisions, especially those upheld in past cases.
 

With Bostock, it seems like gorsuch found a way using the law to make what he felt was a just decision regardless of the original intent of the law-much like how the 14th amendment is often applied in ways not originally intended by the amendment. I don’t see a similar logic being applied to limit opportunity for women. 

Edited by Billyhoyle

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1 hour ago, ugarte said:

This is not what Bostock is about; if this is what that case meant, this issue the legality of having separate men's and women's sports would have arisen a long time ago. Bostock answered a different question, which was "is employment discrimination against gay or trans litigants "because of sex" as relevant under the specific legal context of Title IX." And the court said yes, because the sex of the person being discriminated against is central to the discrimination. It is "because of sex" because in the case of discrimination based on sexuality, a man who marries/dates a man is treated differently than a woman who marries/dates a man and in the case of transgenderism, a person is discriminated against for a gender identity different from the one assigned at birth. The dissenting justices felt that discrimination based on sexuality or gender identity were distinct from "sex discrimination" both linguistically and as a matter of statutory intent and therefore should have required an act of Congress to update Title IX.

It says nothing about whether the existence of separate sports programs for men and women are themselves inherently discriminatory (even though Justice Alito spent a page or two loudly wondering if maybe it was true) and the hypothetical lacrosse player you quoted would have no case . There have been situations where a boy wanted to play a sport that is *only offered* for girls - like field hockey - and I think the outcome of such cases has varied has varied from state to state as I recall it.

To break this post up, into the two separate points. (1) The issue of transgenderism in sports is absolutely going to come up. Schools will likely be required to allow trans female athletes to compete on women's teams. In minimize the politics here since I'm just trying to keep this about the law, I'll only say that the competitive impact is typically overstated and it's good to treat trans athletes with dignity and respect.

As for your second point, Bostock will not change anything with respect to the team composition and funding questions you raised. They are interesting questions, and the subject of a fair amount of litigation and consternation since the application of Title IX to college sports, but Bostock doesn't change the answers.

I never said Bostock addressed Title IX.

I said Bostock interpreted what it meant to discriminate in employment on the basis sex under the Civil Rights Act of 1964. I only skimmed a few excerpts of the case, but my understanding is that the majority's underlying logic is that employers must treat both sexes the same way.

Now, turning to Title IX. Title IX prohibits discrimination on the basis of sex (including in college sports), but does not specifically provide for segregated sports programs on the basis of sex.

As a result, I think Bostock makes it inevitable that someone will challenge a segregated college sports team as illegal under Title IX. That being so, I believe that courts will reexamine the law. And I think it's possible that Congress might take a look at Title IX as well.

I thought I was clear about all that.

Edited by Katie

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56 minutes ago, Billyhoyle said:

I could definitely see changes happening with the interpretation of title IX in terms of how equality is counted, how sexual assault allegations are adjudicated, or questions about trans athletes competing on women‘s teams. However, there is no chance the court makes a decision to eliminate title IX and especially one that eliminateS women‘s athletics. If you’ve paid attention over the past couple weeks, Roberts and/or Gorsuch appear to tend toward socially liberal decisions, especially those upheld in past cases.
 

With Bostock, it seems like gorsuch found a way using the law to make what he felt was a just decision regardless of the original intent of the law-much like how the 14th amendment is often applied in ways not originally intended by the amendment. I don’t see a similar logic being applied to limit opportunity for women. 

I agree that college sports teams will continue to be segregated on the basis of sex, even if Title IX is reexamined in light of Bostock. That's just common sense. To my mind, the questions are: Will the courts adjust their interpretation of Title IX in some way? Will Congress amend the law?

Edited by Katie

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1 minute ago, Katie said:

I agree that college sports teams will continue to be segregated on the basis of sex, even after Title IX is reexamined in light of Bostock. That's just common sense. To my mind, the questions are: Will the courts adjust their interpretation of Title IX in some way? Will Congress amend the law?

I think college sports will eventually be segregated by gender.

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11 hours ago, Billyhoyle said:

If you’ve paid attention over the past couple weeks, Roberts and/or Gorsuch appear to tend toward socially liberal decisions, especially those upheld in past cases.
 

With Bostock, it seems like gorsuch found a way using the law to make what he felt was a just decision regardless of the original intent of the law-much like how the 14th amendment is often applied in ways not originally intended by the amendment. I don’t see a similar logic being applied to limit opportunity for women. 

This is a terrible interpretation of what Roberts and Gorsuch do. Every decision they make, regardless of the specific outcome of the case, makes the law more conservative. Read the Roberts opinion on the abortion clinic admitting privileges standard: he lists all of the ways he would gladly restrict abortion and strips out the important balancing test from the 2016 Texas case he claims to be supporting. Take a look at Bostock itself for Gorsuch's liberalism: he not makes clear that this is a statutory interpretation case - meaning it is not related to constitutional equal protection arguments, he also strongly implies that he will allow a religious exemption big enough to undo most of the rule. He also strongly implies that Alito's concerns (and Katie's wondering) that this will mean the end of sex-segregated activities of any kind are unfounded.

Neither of them are liberals in any modern, political sense of the word. 

11 hours ago, Katie said:

I only skimmed a few excerpts of the case, but my understanding is that the majority's underlying logic is that employers must treat both sexes the same way.

Now, turning to Title IX. Title IX prohibits discrimination on the basis of sex (including in college sports), but does not specifically provide for segregated sports programs on the basis of sex.

As a result, I think Bostock makes it inevitable that someone will challenge a segregated college sports team as illegal under Title IX. That being so, I believe that courts will reexamine the law. And I think it's possible that Congress might take a look at Title IX as well.

I thought I was clear about all that.

Your understanding of the case is wrong. Title IX has always been about "treating both sexes the same way" and the result of that is the current world, with men's and women's sports teams and all of that. Bostock only added anti-gay and anti-trans discrimination to the already existing scope of discrimination law. It does not and has never meant that men and women are the same for all purposes and Bostock doesn't change that at all.

I appreciate that you skimmed parts of the case but I actually read it, multiple times, and spent an hour talking to a civil rights litigator and a Vanderbilt law professor about it. I don't think it's a secret from my posts that I am very left - especially for a wrestling forum - but whether I think the current state of the law is good or bad I don't bull**** on what it actually is. I *want* women's sports to continue to exist. I have no interest in eliminating separate locker rooms. If I thought that Bostock suggested either of those things I wouldn't tell you otherwise.

11 hours ago, Katie said:

I agree that college sports teams will continue to be segregated on the basis of sex, even if Title IX is reexamined in light of Bostock. That's just common sense. To my mind, the questions are: Will the courts adjust their interpretation of Title IX in some way? Will Congress amend the law?

Courts are not going to change the interpretation of Title IX in a way that eliminates women's sports. If the GOP got both branches of Congress and the Presidency, I do think that Title IX would be amended to reverse Bostock. They could do it in one of two ways. First, Congress could explicitly exempt anti-gay or anti-trans discrimination from the law, but this is unlikely since specifically targeting gay or trans people like that would probably run into equal protection issues even under a less exacting standard than race discrimination gets ("strict scrutiny") or even that sex discrimination gets {"intermediate scrutiny"). The more likely way is to weaken the "because of sex" language. Gorsuch read "because of sex" to mean that mixed-motive cases were covered by Title IX but a different phrasing would allow an employer to defend a case where the dismissal was based on multiple reasons including but not predominantly because of sex.

Edited by ugarte

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2 hours ago, ugarte said:

This is a terrible interpretation of what Roberts and Gorsuch do. Every decision they make, regardless of the specific outcome of the case, makes the law more conservative. Read the Roberts opinion on the abortion clinic admitting privileges standard: he lists all of the ways he would gladly restrict abortion and strips out the important balancing test from the 2016 Texas case he claims to be supporting. Take a look at Bostock itself for Gorsuch's liberalism: he not makes clear that this is a statutory interpretation case - meaning it is not related to constitutional equal protection arguments, he also strongly implies that he will allow a religious exemption big enough to undo most of the rule. He also strongly implies that Alito's concerns (and Katie's wondering) that this will mean the end of sex-segregated activities of any kind are unfounded.

Neither of them are liberals in any modern, political sense of the word. 

Your understanding of the case is wrong. Title IX has always been about "treating both sexes the same way" and the result of that is the current world, with men's and women's sports teams and all of that. Bostock only added anti-gay and anti-trans discrimination to the already existing scope of discrimination law. It does not and has never meant that men and women are the same for all purposes and Bostock doesn't change that at all.

I appreciate that you skimmed parts of the case but I actually read it, multiple times, and spent an hour talking to a civil rights litigator and a Vanderbilt law professor about it. I don't think it's a secret from my posts that I am very left - especially for a wrestling forum - but whether I think the current state of the law is good or bad I don't bull**** on what it actually is. I *want* women's sports to continue to exist. I have no interest in eliminating separate locker rooms. If I thought that Bostock suggested either of those things I wouldn't tell you otherwise.

Courts are not going to change the interpretation of Title IX in a way that eliminates women's sports. If the GOP got both branches of Congress and the Presidency, I do think that Title IX would be amended to reverse Bostock. They could do it in one of two ways. First, Congress could explicitly exempt anti-gay or anti-trans discrimination from the law, but this is unlikely since specifically targeting gay or trans people like that would probably run into equal protection issues even under a less exacting standard than race discrimination gets ("strict scrutiny") or even that sex discrimination gets {"intermediate scrutiny"). The more likely way is to weaken the "because of sex" language. Gorsuch read "because of sex" to mean that mixed-motive cases were covered by Title IX but a different phrasing would allow an employer to defend a case where the dismissal was based on multiple reasons including but not predominantly because of sex.

Let me repeat again: I don’t believe that the courts will get rid of women’s college sports. I’m not sure where you even got that idea.

I’m merely saying that Bostock makes a challenge to Title IX inevitable. That challenge, in turn, invites courts to reconsider the language there. I’m also saying that it’s possible for Congress to respond to Bostock by amending Title IX. 

Hopefully you read Bostock more carefully than you read my posts. 

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On 6/29/2020 at 12:39 PM, Katie said:

There may soon be legal challenges to the existence of women-only college sports teams. Here’s why. 

As I understand it,...

So, here's where I guess it fell apart.

You merely pointed out that there might be legal challenges and I was foolish enough to think you were wondering if those suits would have any merit. You weren't though! You don't care about the answer to that question at all. You were merely pointing out that there may be some people who might bring lawsuits based on an entirely superficial misreading of Title IX or Bostock. I apologize completely.

Edited by ugarte

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19 hours ago, ugarte said:

To break this post up, into the two separate points. (1) The issue of transgenderism in sports is absolutely going to come up. Schools will likely be required to allow trans female athletes to compete on women's teams.

Don't they already do that?  But it requires one year of testosterone suppression treatment I think - https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf ?  Could that part be challenged due to this case?

 

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On 6/29/2020 at 3:46 PM, Katie said:

I'd add that if Congress responds to Bostock by amending Title IX to specifically allow for segregation in sports along the lines of sex, then there could potentially be a new debate about how to ensure women and men have an equal opportunity to participate in sports.

For example: Do expenditures for men's and women's teams have to be equal? Do the number of male and female athletes have to be equal? Are high school participation numbers relevant? Etc.

If there ever was an opportunity to refashion Title IX in a way that might help wrestling programs, that opportunity is now.

I’m truly stunned that you’re looking to help wrestling.   I clicked on this thread expecting You to be bemoaning the lack of enforcement of title IX to bludgeon men’s sports.

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8 hours ago, 1032004 said:

Don't they already do that?  But it requires one year of testosterone suppression treatment I think - https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf ?  Could that part be challenged due to this case?

 

I was thinking more generally than NCAA but i didn't know the NCAA had a policy manual for the issue. I don't know enough to say whether requiring hormone suppressants (rather than strictly relying on self-identification) is either (1) an infringement of a trans athlete's rights under Bostock or (2) would be considered unnecessarily intrusive to members of the trans community. The NCAA pretty clearly intends the year of hormone suppressants to remove any competitive advantage from men's higher testosterone levels to dissipate and I assume the NCAA's lawyers feel pretty good about that rule being on solid ground.

I would say that there may be grounds to challenge the NCAA policy but I only have questions, not answers. I think many would consider the NCAA policy be a good faith effort to provide opportunity for and respect the dignity of trans athletes even before Bostock was decided but whether that is enough, I don't know.

Edited by ugarte

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On 6/29/2020 at 1:10 PM, Scorenomore said:

Yes this is a slippery slope.  I have 2 sons and 2 daughters.  To deny that they are gifted with different talents and capabilities is beyond reason.  Although my daughters have outperformed the males in their classroom in some physical competitions, they are not close physically to my sons.  If we don’t allow for true DNA based segregation of women’s athletics I fear that women will not have an avenue to compete in athletics.  

The trans debate brings the issue into full relief. If we stipulate that both gender AND sex are social constructs, then the foundations of title IX protections start to collapse. So to does the "I was born this way" claim. How can one's sexuality be a feature of biological identity when there is no such thing as biological indentity? I understand that I have oversimplified things, but this stuff always tends to Manichean blindness.

Edited by jackwebster

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6 hours ago, ugarte said:

I was thinking more generally than NCAA but i didn't know the NCAA had a policy manual for the issue. I don't know enough to say whether requiring hormone suppressants (rather than strictly relying on self-identification) is either (1) an infringement of a trans athlete's rights under Bostock or (2) would be considered unnecessarily intrusive to members of the trans community. The NCAA pretty clearly intends the year of hormone suppressants to remove any competitive advantage from men's higher testosterone levels to dissipate and I assume the NCAA's lawyers feel pretty good about that rule being on solid ground.

I would say that there may be grounds to challenge the NCAA policy but I only have questions, not answers. I think many would consider the NCAA policy be a good faith effort to provide opportunity for and respect the dignity of trans athletes even before Bostock was decided but whether that is enough, I don't know.

I agree, I think the NCAA rule makes sense, but could certainly see some try to challenge it.  I followed the case of June Eastwood in XC/track a bit this year, which is the first instance that I'm aware of of a D1 male athlete transitioning to female and then competing on the female team.    She ended up winning her conference in the mile (but had taken 9th in 2016 as a freshman male, so I think it's not out of the question that he could have ultimately won as a male as well).   In reading some articles I believe her times did seem to be pretty much in line with what one would expect for a male to female comparison in terms of percentiles, although some claimed that she was tanking (and she did stick out quite a bit on the starting line).

High school is where it gets even trickier because you can't exactly require kids take certain medical treatments, hence the case of the 2 sprinters in CT that simply identified as female, which is a completely different situation than Eastwood IMO.  

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On 6/30/2020 at 4:20 PM, gowrestle said:

We should eliminate teams based on gender. Rather than having a men’s soccer team and a women’s soccer team, just have a soccer team. That will solve a lot of problems. 

We can't do that because too many snowflakes will have their feelings hurt. Plus it may be the first time that they have heard the word no, did not make the team, and did not get a trophy. 

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12 hours ago, TexRef said:

We can't do that because too many snowflakes will have their feelings hurt. Plus it may be the first time that they have heard the word no, did not make the team, and did not get a trophy. 

Exactly.  Life is competitive. The only sports should be the ones that can pay for themselves.  These are only sports and nobody has a 'right' to play a game! 

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