The Case that Might Undermine Title IX

Oct 11, 2019

By Jordan Kobritz
Title IX, enacted by Congress in 1972, prohibits sex discrimination in education in programs that receive federal funding. While the statute’s specific intent was to provide equal opportunities in STEM education, courts have expanded the definition of education to include sports. That interpretation led to the requirement that schools provide equal athletic opportunities for male and female athletes.
Almost 50 years after the passage of Title IX, a case before the U.S. Supreme Court may inadvertently undermine the significant progress women have made in athletics.
The case, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, et al, is actually three cases, Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda and Harris. All three cases were brought under Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against an individual “because of such individual’s … sex.” The question presented in each of the cases is whether this language also prohibits discrimination based on “sexual orientation” or “gender identity.”
The interpretation of Title VII to date only addresses discrimination based on biological sex. It prohibits disparate treatment that favors men over women or women over men. The language of the statue doesn’t address sexual orientation or gender identity.
The issue is one that has generated considerable attention, not surprisingly in today’s climate. Approximately ninety amici curiae have been filed in Harris, many listing multiple parties. Oral arguments will be heard on October 8, the second day of the Court’s October term.
In the title case, Harris, Anthony Stephens had worked for six years as a funeral director for R.G. & G.R. Harris Funeral Homes. Prior to taking scheduled time off in 2013, Stephens informed the company’s owner that when he returned he wanted to be known as “Aimee” Stephens. Despite positive employment reviews, Stephens was fired two weeks later. Assisted by the ACLU, she sued, alleging her employer had violated Title VII.
The trial court said Stephens was not discriminated against based on “sex,” and ruled against her. On appeal, the U.S. Court of Appeals for the Sixth Circuit reversed. Stephens filed a writ of certiorari and the Supreme Court agreed to hear the case. A number of organizations committed to equal opportunities for women are concerned that a decision to affirm the Court of Appeals interpretation of sex under Title VII could potentially undermine Title IX.
The facts of the Stephens case may not suggest a connection to Title IX, but when lawmakers passed Titles VII and IX, they used the same language to define sex in both statutes. Because courts generally interpret similar language in the statutes the same way, a ruling that transgender status and/or gender identity applies to the employment statute (Title VII) is likely to apply to the education statute (Title IX) as well.
Title IX allows sex “segregation” in competitive sports so that women can compete at high levels and still be protected against competition from men. That protection could evaporate if “sex” includes gender identity; men who identify as women might be allowed to play on women’s teams, which would lead to a competitive disadvantage for women in most sports.
Taken to its logical conclusion, a decision by the Supreme Court to expand the definition of sex could lead to lawsuits by transgender males claiming discrimination if they aren’t allowed to participate on women’s athletic teams. Hence, supporters of Title IX believe a ruling for Stephens could potentially undermine the legal justification for maintaining any women-specific athletic teams.
Individuals born male are, at least on average, physiologically stronger, bigger and faster than those born female. If transgender athletes are allowed to play on women’s teams, it’s not a stretch to believe it could lead to a reduction in the number of opportunities for biological women and girls to participate in competitive sports.
Supporters of Stephens — as well as the plaintiffs in Bostock and Altitude – aren’t thinking that far ahead. Their goal is simply to convince the Supreme Court to expand the interpretation of sex under Title VII, even if such a determination may have the unintended consequences of undermining the decades-long progress women have made under Title IX.
Jordan Kobritz is a non-practicing attorney and CPA, former Minor League Baseball team owner and current investor in MiLB teams. He is a Professor in the Sport Management Department at SUNY Cortland.


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