“A prime part of the history of our Constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”
-Justice Ruth Bader Ginsburg, writing for the Supreme Court in United States v. Virginia,
the 1996 case that struck down the state’s exclusion of women from the Virginia Military Institute
Two landmark events this year related to the Supreme Court – one tragic and too soon, one a historic and long overdue victory for the LGBTQIA+ community – could combine to erase a number of Title IX protections for students.
On Sept. 18, Ruth Bader Ginsburg died, leaving a vacancy on the bench likely now to be filled by Amy Coney Barrett, who has previously ruled on a federal case that many fear will make reporting sexual assault on campus more arduous.
If you need any more proof that the patriarchy knows no gender, just take a look at Judge Barrett’s record:
Is it that she joined a dissent in 2018, suggesting that Mike Pence’s Indiana law requiring a funeral for fetuses was maybe constitutional and should be heard by the entire appellate court en banc? Is it that, in 2013, she didn’t include Roe v. Wade in a law review article list of super-precedents that she felt could never be overturned, no matter the personal and religious beliefs of the justices hearing the case? Is it that, in 2015, she joined Notre Dame’s “Faculty for Life” group, which sent a letter to U.S. Catholic bishops stating that they believed life began at conception and ended at natural death? Is it her affiliation with People of Praise, a hardcore religious organization that encourages speaking in tongues and which calls their women “handmaidens?”
In June, the Supreme Court ruled 6-3 that LGBTQIA+ employees have equal rights under Title VII, which covers workplace protections based on a protected class: race, sex, religion, etc. The Court ruled that sex includes gender and gender identity.
Even though that Title VII case was a victory for human rights, there is no guarantee that the same definition would be applied to Title IX if a related case came to the Court. A ruling against employing the same definition of sex under Title VII to Title IX could gut protections for students who do not identify with the sex they were assigned at birth and leave them at worse risk of harassment and discrimination.
Title IX is a federal civil rights law that protects equity “on the basis of sex,” harkening back to the groundbreaking 1972 Moritz v. Commissioner case argued by Ginsburg to the Supreme Court. Title IX doesn’t just deal with sports, although that is what many associate it with. Outside of sports and sexual assault, the law protects against issues like gender harassment, pregnant and parenting students, and cultures of sexual violence.
“Title IX covers a broad array in terms of gender-based discrimination,” said Jaslin Kaur, an organizer at Know Your IX, a survivor- and youth-led project that envisions a world in which all students can pursue their civil right to education free from violence. “In athletics, what’s been coming up a lot is, ‘Who is allowed to participate? How is sex and gender scrutinized in school so that we wind up having equal participation?’ ”
With the Court potentially sliding more to the right, it could now decide to take up a Title IX case, something it has declined to do in the recent past. The current political, policy, and judicial landscape combined makes it primed for SCOTUS to hear a case as to whether “on the basis of sex” includes gender identity in Title IX protections.
“In the most recent legislative session, we saw almost half of the states in the U.S. introduce some piece of proposed legislation to specifically discriminate against transgender athletes in high school and college, with all specifically targeting girls who are transgender,” said duathlete Chris Mosier, who in 2016 became the first transgender athlete to represent Team USA. “Until this year, state high school athletic associations — not state or local governments — have been responsible for creating guidance for the participation of youth athletes who are transgender and non-binary.”
The Supreme Court would be tasked with deciding if the Title VII protections for transgender folx also apply to Title IX student-athletes. Is a transgender woman playing a college sport entitled to the same protections as a cisgendered woman under Title IX? From a moral standpoint, of course she is. But from a legal standpoint, her rights remain unsettled. So how would that affect participation in the gendered sport of an athlete’s choosing?
“Be prepared for anything and everything,” said Nicole LaVoi, Director of The Tucker Center for Research on Girls & Women in Sport and Associate Professor School of kinesiology at the University of Minnesota. “Who knows what would happen? I’d like to think that [gender-based protections] wouldn’t go under attack, but who knows what will happen?”
That unknown factor of a Court that swings to the right with Barrett makes for legitimate concern regarding the future of Title IX. Protections are already being undone in other branches of the government, including lower judicial circuits, where we’ve gotten a preview of where many conservatives stand on gender and, more specifically, transgender students.
In May, Secretary Betsy DeVos and the Department of Education (DOE) overhauled Title IX regulations, nixing mandatory sexual misconduct reporting requirements for coaches and trainers and giving more due process rights to the accused, including that they now have the right to cross-examine their accuser in open court, contrary to the Obama administration’s “Dear Colleague” letter from 2011. That document, rescinded by the Trump administration, provided the previous guidance on Title IX sexual assault cases on campuses.
There was a backlog of open investigations during the Obama Administration, but it is unclear how the new requirements will result in a downward trend of Title IX violations and ultimately “protect the civil rights of all students,” as the DOE said in its announcement.
Piling onto this, the DOE had been threatening to pull a $3 million grant from the New Haven Public school district in Connecticut over transgender girls’ participation in sports before finally backing down last week.
If the rogue DOE is exhibit A of conservatives’ views on transgender participation in sports, Sen. Kelly Loeffler (R-GA) is exhibit B.
Loeffler co-sponsored a bill last week to ban transgender girls from competing in school sports with their identified gender. The bill threatens to pull federal funding from schools that support transgender students, stating “sex shall be recognized based solely on a person’s reproductive biology and genetics at birth” in girls, exuding ignorance at the fact that sex and gender and gender identiity are not synonymous.
The debate is similar to the one waged in 2016 on North Carolina’s House Bill 2, requiring transgender folx in government and public buildings to use the bathroom that corresponds with the gender on their birth certificate. That ruling was ultimately struck down in 2019 at the federal level, but it or another similar case from another state could land at the Supreme Court, where it could be reversed.
In another ruling just last month, an Idaho transgender high school female athlete was allowed to compete for her high school after a federal judge placed a preliminary injunction on a state law while the case is pending. House Bill 500, also known as the Fairness in Women’s Sports Act and signed by Gov. Brad Little in March, allows a coach or school administrator to challenge a student’s gender by forcing her to undergo DNA tests and “genital exam” before being allowed to compete.
The case even drew the attention of some pro athletes, like Martina Navratilova, who sent a letter to the NCAA in support of the legislation. It’s not the first time Navratilova weighed in on the issue, co-authoring an op-ed in The Washington Post in 2019 agreeing with including gender identity as part of Title VII but not under Title IX: “This is necessary because sex segregation is the only way to achieve equality for girls and women in competitive athletics.”
Meanwhile, another tennis legend, Billie Jean King, co-signed a letter with other pro athletes like Megan Rapinoe, Sue Bird and Jason Collins urging the NCAA to move all 2021 championship athletic events out of Idaho: “This is the time for the NCAA to stand with us on the right side of history, in support of the rights of all athletes in Idaho to compete in the sports they love. Since the beginning of competitive sport, we have become a better and stronger global athletic community by expanding access, not by withholding it.”
The injunction against Idaho House Bill 500 has been appealed to the 9th U.S. Circuit Court and could wind up in the laps of the nine SCOTUS justices down the road.
“The composition of the Supreme Court in case rulings around gender discrimination matters,” LaVoi says. “For decades it has been under scrutiny as a federal law. And the transgender case in Idaho is one example of that. Title IX might be revisited as being irrelevant and may be struck down.”
Cheryl Cooks, a professor of Women’s Gender and Sexuality Studies at Purdue University, says the natural evolution of Title IX would include transgender athlete protections. Cooks believes the Court will rule on the legal definition of a person’s sex and gender. Will it be defined based on genitalia? Sex at birth? Estrogen and testosterone levels? Chromosomes count? All of these issues were just debated in international athletics in the Caster Semenya case.
Semenya lost her appeal last month in the Court of Arbitration for Sport (CAS), which upheld the previous year’s ruling requiring athletes that have what they call “disorders of sex development” (DSD) — commonly known as “intersex” conditions – to lower her testosterone levels in order to be eligible to compete as a woman in professional races.
The two-time Olympic gold medalist was born a female, but reportedly has XY chromosomes. Her specific condition details have not been released, but it has been called “the genetic variant ’46 XY DSD.” The three options Semenya was given to bring down her testosterone levels were taking birth control pills, having testosterone-blocking injections, or undergoing surgery. She took birth control pills for over five years. The IAAF has since changed its requirements of what athletes can take to lower testosterone levels.
An unspoken parallel to that ruling is that Olympic athletes are often also NCAA student-athletes while training for and participating in the Games. That fact creates a direct connection from a ruling in France regarding a South African athlete to college athletics in the U.S. A more conservative SCOTUS could take up and rule on an NCAA athletics case using those same IAAF requirements, altering the landscape of participatory intercollegiate sports forever.
“We will be doing a real disservice to all of our athletes if we implement this problematic criteria,” Cooks said.
Sadly, the loss of a liberal justice like RBG could certainly take college athletics down that road. In 2005, Ginsburg joined the majority in Jackson v. Birmingham Board of Education that found that Title IX allowed claims for retaliation by someone who had complained about sex discrimination, in that case a high school basketball coach who had complained about unequal treatment of the girls’ team. That case was decided by a 5-4 margin.
With recently sworn-in Trump-appointed justices like Neil Gorsuch, Brett Kavanagh, and perhaps soon Amy Coney Barrett, that version of the Supreme Court is long gone. And so too may be Title IX protections across the board if a case winds up in their hall of justice.
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