Title IX and Segregation by Sex

When we prohibit “discrimination” what do we usually mean? That is, the prohibited criteria (race, gender, religion, age) should not be taken into account. Two people applying for a job, one man and one woman; the decision should be made regardless of the gender of any person (assuming that gender is not a bona fide professional qualification or BFOQ).

BFOQ is an example where we make a special exception to the general rule that prohibited criteria should not be considered. Another (unwritten) exception would be the “enhanced scrutiny” applicable to certain types of presumed unconstitutional discrimination by state actors under the Equal Protection Clause of the Fourteenth Amendment. Thus, states may grant treaty benefits to certain racial groups if the benefits meet the requirements of “strict scrutiny.” These exceptions are permitted, not mandatory. A government agency may grant contracting privileges, but generally speaking, it is not required to do so.

As I pointed out yesterday, Title IX has some express exceptions (for example, for father-son and mother-daughter events). These exceptions are permissible. The statute allows for sex-segregated housing, but does not require it.

It could be argued that according to the principles the expression of one, we should not imply any unwritten exceptions. The Supreme Court has not ruled on the issue, but the consensus among lower courts is that Title IX also allows sexually conscious decisions subject to some form of “enhanced scrutiny.” (Interestingly, this consensus stems from the opinion of the Supreme Court back in Grandmothers that Title VI of the Civil Rights Act of 1964, generally considered the model for Title IX, prohibited only race-conscious decision-making in violation of the Equal Protection Clause. (I understand that at least one judge raised some questions about the propriety of that interpretation in college admissions cases argued last Halloween.)

One possible interpretation of Title IX is that schools receiving federal funds cannot limit sports teams to one gender or another. That is certainly the way we interpret Title VI, which prevents recipients of federal funds from discriminating on the basis of race. Schools cannot have separate sports teams for different races. But even after Title IX was passed, people seemed to agree that schools receiving federal funding should be able to have gender-segregated sports teams.

There have been two theories as to why this should be so, each with somewhat different consequences. One was that women were lagging behind in sports because of past discrimination and that they needed some time and training to catch up. (This, interestingly, was the position of the National Organization for Women, at least as conveyed in a letter from then-HEW Secretary Caspar Weinberger to President Ford.) The second was that men were bigger and stronger by nature and, accordingly, women could not directly compete with men. As time passed, and the consequences of past discrimination became harder to see (especially among young high school and university students), the second theory became more popular.

Separate sports teams for women are subject to increased scrutiny: allowing women to participate in sports is an important or compelling interest, and separate sports teams where men are not eligible are the only way to achieve this goal. This usually occurs in the context of a man suing to play on a women’s team in a sport (for example, field hockey) where no men’s team is available. More recently — just a few weeks ago, in fact — it came up in the case of a trans woman who wanted to play on women’s sports teams in violation of West Virginia law.

But, again, subjecting them to increased scrutiny only means that schools receive federal funding May provide separate sports teams that exclude men. By itself, this does not mean that open-to-all teams violate Title IX. More generally, non-discrimination norms are usually not considered violated simply because needed or useful talent is not evenly distributed between men and women. As I noted yesterday, a school can sponsor a tenor-bass choir without violating Title IX, although few, if any, women would qualify.

Note that when we allow segregation of men and women, it becomes more difficult to identify a case of individual discrimination. Rather, discrimination is the result of treating one gender as a whole as better or worse than the other, for examplewith fewer toilets for women.

If a federally funded school decided to require one person of each gender to use the opposite-sex restroom—perhaps as an attempt to sensitize those involved to the difficulties of being the opposite sex—it’s hard to name anyone who treated a victim of sex discrimination that way. Gender discrimination usually occurs when someone is treated differently because of their gender. According to this hypothesis, people who change toilets are not treated differently from people of the opposite sex; they are treated exactly the same as someone of the opposite sex. They use the toilet intended for the opposite sex. Although they are treated differently from members of their own sex, it is not gender discrimination any more than it is racial discrimination or paying one white employee more than another to do the same job.

I believe the same applies if the person changing the toilet is a trans man or woman. Let’s assume that Pat is a trans man and that the gender of the trans person is the same as the gender identity. Pat being forced to use the women’s restroom is treated no differently than most people whose gender identity is female; Pat is treated exactly the same as those people. Of course, if Pat’s “gender” is biological sex (female) and not gender identity, then Pat is treated differently from those whose biological sex is male. But also every other person whose biological sex is female.

Of course, there is discrimination when a trans man has to use the women’s restroom: discrimination based on transgender status. A trans man is treated differently than a cis man (whose gender was male at birth and who still identify as male). But for this to turn into “sex” discrimination, it would have to be shown that “sex” does not only include biological sex and gender identity, but also transgender status, and that could be a harder hill to climb. At least on the face of it, transgender status is as much a “gender” as a “convert” is a “religion.” Remember that in BostockThe Court assumed that “gender” in Title VII means only biological sex. He could do that because there was no segregation there. The court specifically declined to consider whether gender-segregated bathrooms or locker rooms violate Title VII.

Does Title IX prohibit schools receiving federal funding from asking trans women to compete on predominantly male teams? Not unless “gender” in Title IX is interpreted to include transgender status. If “gender” in Title IX is understood only as current biological sex or gender identity, then this is not the case. Of course, discrimination based on transgender status may violate the Equal Protection Clause for public schools, but that’s a separate issue.

So maybe Title IX precludes allowing trans women to compete on women’s teams, as some have argued. That argument depends on understanding Title IX not only as allowing separate sports teams for biological females but demanding them—that is, preventing biological males from competing with biological females. Tomorrow we’ll look at the administrative interpretations of Title IX that led to that conclusion.

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