West Virginia recently passed the “Save Girls Sports Act” that bans transgender women – biological men who identify as women – from competing against female athletes in high schools and colleges in the state. The American Civil Liberties Union (ACLU) quickly brought a lawsuit against the law on behalf of transgender women, and now the U.S. Department of Justice (DOJ) has taken their side and asked the court to strike down the law as unconstitutional.
“The United States respectfully submits this Statement of Interest, under 28 U.S.C. § 517, to advise the Court of its view that Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and the Equal Protection Clause of the Fourteenth Amendment do not permit West Virginia to categorically exclude transgender girls from participating in single-sex sports restricted to girls,” the DOJ statement begins.
The West Virginia law, passed by the state legislature on April 9 and signed into law by the governor, would go into effect on July 9 later if no court intervenes to block it.
The law’s preamble explains that women and men are not “similarly situated” when it comes to competing in sports, which creates the necessity for protecting the opportunities for young women to compete that would otherwise be lost if they were forced to compete against biological men. It then lays out the restriction that one’s biological sex, determined at birth, establishes which sports one can participate in.
“Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by any public secondary school or a state institution of higher education, including a state institution that is a member of the National Collegiate Athletic Association (NCAA), National Association of Intercollegiate Athletics (NAIA), or National Junior College Athletic Association (NJCAA), shall be expressly designated as one of the following based on biological sex:
(A) Males, men, or boys;
(B) Females, women, or girls; or
(C) Coed or mixed.”
It’s key to note that the legislature recognized that men and women are not “similarly situated.” That’s a legal term typically discussed in cases involving the 14th Amendment to the U.S. Constitution, and specifically with regard to the “equal protection clause” of that amendment.
The ACLU (now with the support of the DOJ) argues that the West Virginia law treats similarly situated persons – i.e., transgender women and biological women – differently and is therefore unconstitutional.
However, that claim is highly disputed. Transgender women are biological males, with all the physical advantages that come with that – strength, speed and endurance, to name a few important characteristics. The 14th Amendment allows differential treatment between men and women in areas where it is appropriate. And biology makes a difference – or at least has done so up to this point – in determining what “equal protection” of the law entails.
Title IX, the 1972 federal education law at issue in this case, although couched as a prohibition of discrimination based on “sex,” was actually intended to enhance and protect opportunities for girls and women in federally funded schools. Those opportunities included separate sports for women as well as equal funding. The law, which makes distinctions based on biological “sex,” does not violate the “equal protection clause” of the 14th Amendment and has stood for 50 years.
But with the advent of transgender ideology and its influence in the culture – which has now become a political and legal issue – biological males who claim a female gender identity are excelling at girls and women’s sports where they are permitted to participate. The resulting harm to girls and women is the antithesis of what Title IX was intended to accomplish.
Transgender activists argue that laws like West Virginia’s – and several other states have similar laws – prevent transgender women from competing. But that’s not true – they can still compete in boys and men’s competitions.
Of course, the legal push to allow biological males to compete in girls and women’s sports was given a big boost when the U.S. Supreme Court decided in Bostock v. Clayton County in 2020 that the word “sex” in federal employment law – Title VII of the 1964 Civil Rights Act – was broad enough to encompass sexual orientation and gender identity. Since that decision, the current administration is attempting to change the definition of “sex” in Title IX to include those categories as well.
But Bostock didn’t go that far, even though some lower federal courts have ruled that it did. This question will ultimately get back to the Supreme Court for resolution, as the author of Bostock, Justice Neil Gorsuch predicted in that opinion.
In fact, the justices have been prevented with that very question in a petition brought by a school board in Gloucester County, Virginia, in a long-running case involving Gavin Grimm, a biological female who identifies as a male. Grimm demanded the use of male restroom facilities at his high school, despite the school board’s protestations and offers of accommodation such as the use of private facilities. In that case, the 4th U.S. Circuit Court of Appeals concluded that Title IX’s definition of sex included gender identity.
The justices will be considering this week whether to accept the Grimm case for argument during its next term which begins in October. If it decides to take the case, we may get a decision by next June. That decision will be tremendously important in answering the question whether girls and women’s sports can indeed be saved.
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