Legal Docket: Reclaiming Title IX

MARY REICHARD, HOST: Hey, good morning, today we’re kicking off our June Giving Drive and I hope you’ll give prayerful thought this month to the value you place on this program each day.

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REICHARD: Hope you enjoy today’s program!

It’s The World and Everything in It for this 6th day of June, 2024. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

EICHER: And I’m Nick Eicher.

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REICHARD: Alright, time now for Legal Docket.

Today, Title IX. It’s been in the news lately because of the changes made by the Biden Administration.

Title IX goes back more than 50 years, to 1972 when President Richard Nixon made it federal law. It prohibits sex discrimination in any education program or activity that receives federal financial assistance.

That propelled girls and women into sports in a way they’d never before been allowed to do.

EICHER: To take just one example: Before Title IX, female participation in high school sports was only around 300,000 students. It’s grown more than ten-fold and today, more than 3 million female students have stepped off the sidelines and on to the field.

Except, now female athletes are being sidelined once again.

Former NCAA swimmer Riley Gaines knows all about that. In 2022 she swam for the University of Kentucky in the 200-yard freestyle championship.

But then along came a middling male swimmer named William Thomas who dropped the “will” and the “em,” took on the name Lia, began competing as a woman, and promptly tied Gaines’s performance.

REICHARD: That experience inspired Gaines to speak up against males in female sports. But her speech came at yet another cost: upon invitation to speak at San Francisco State University last April, trans activists shouted her down, and then some:

AUDIO: [Chanting]

The ordeal lasted for hours. Gaines explained what happened on the Megyn Kelly show last month:

GAINES: I was ambushed, I mean, I was being shoved. I was being pushed. I was punched in the face by these men wearing dresses…They held me for ransom throughout the night, I mean four hours, held me for ransom, demanding that if I wanted to make it home to see my family safely again, I had to pay them money.

Gaines was there to state the original purpose of Title IX, to uphold female sports, and speak up against males taking away opportunities meant for women:

GAINES: My message from the beginning has been that there are two sexes. You can't change your sex, and each sex is deserving of equal opportunity, privacy and safety. Nothing controversial, nothing hateful. I mean, it's really the bare minimum…

Here’s what the law says:

”No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

That’s the full 37 words of the relevant part of Title IX.

EICHER: Straightforward enough.

But four years ago, the U.S. Supreme Court decided a case called Harris Funeral Homes v EEOC. That 6-3 decision with the majority opinion by Justice Neil Gorsuch elevated the legal status of gender identity. With the Harris decision, gender identity acquired protected-class status under Title VII, a law that deals with employment discrimination. Another ruling elevated homosexuality to protected status on the job. That was Bostock v Clayton County.

And that’s in part how Lia Thomas winds up in the swim lane next to Riley Gaines.

Listen to Justice Gorsuch during oral arguments in Harris back in fall of 2019:

GORSUCH: When a case is really close … on the textual evidence and I—assume for the moment I'm with you on the textual evidence. It's close, okay? … A judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision …

REICHARD: Massive social upheaval aside, the Biden administration took that ruling and ran with it.

In April, the administration announced changes to Title IX that redefine sex in such a way that will lead to further male involvement in women’s sports. A Biden administration official has said that a more specific rule to require schools to allow so-called trans athletes to compete on their “preferred” teams is in the works.

That education official explained the rationale. This is Assistant Secretary for Civil Rights Catherine Lhaman, speaking at the Aspen Institute in 2022:

CATHERINE LHAMAN: …our view is that the rule against discriminating against on the basis of sex includes a prohibition on discriminating on the basis of sexual orientation or gender identity. …

EICHER: In other words, biology has no place in the legal analysis.

And so now, several groups are suing the administration, saying it’s unlawfully rewritten Title IX.

One of those groups is Alliance Defending Freedom. It’s filed five federal lawsuits so far.

And today is an important day in the courts. ADF lawyer Rachel Rouleau:

RACHEL ROULEAU: This is the first hearing we have in any of our Title IX cases, and right now we're arguing that the court should not let this law go into effect on August 1. So we're asking the court to stay the rule during this litigation, and so while this case precedes, women and girls can be protected.

This first hearing is in a case against the government by six states along with the Christian Educators Association International.

A young athlete from West Virginia named Adaleia Cross and her mother have also intervened.

REICHARD: I spoke to the mom Abby Cross last week. She told me what happened:

ABBY CROSS: My daughter Adeleia made her middle school track team in the 2021- 2022 season her seventh grade year. At the same time, a male student joined the girls track team. And by her eighth grade year, things had kind of progressed and she not only lost her competition spot to this male student, but he was also regularly sexually harassing her.

Court documents reveal that harassment included lewd requests for sex acts and threats to carry those out against her will. This happened several times per week, including in the locker room she was forced to share with that male student.

CROSS: Our daughter had told us these things, but the school, the coaches, no one told parents that this was going on. So our daughter came home and told us. And she would actually go change in the bathrooms before track so she didn't have to change in the locker room.

ADF lawyer Rouleau elaborates on the current Supreme Court precedent:

ROULEAU: Even in that court opinion, Justice Gorsuch says that it doesn't apply to Title IX, it won't apply to those areas, and we're specifically saying that in Title IX you need to have sex distinctions, which is why Title IX was passed— to show that males and females cannot compete equally in sports. Males have a 10 to 50% athletic advantage over females, and we've seen that play out. And we've seen the danger of what happens when males are allowed to compete on women's sports teams. There's been a girl in North Carolina who received a concussion playing volleyball against a biological male, and then also in Massachusetts, a high school girl had her teeth knocked out by playing against a male in field hockey. And we do not want that to go across the country.

As these lawsuits proceed, other female athletes are raising alarms.

A bus tour going coast to coast throughout the summer has more than 7,000 female athletes demanding protection for women’s sports. It’s called Our Bodies, Our Sports, Take Back Title IX.

This is bipartisan. Former Democrat U.S. Congresswoman Tulsi Gabbard is part of it, as is tennis great Martina Navratilova who identifies as lesbian, and many other young athletes like Riley Gaines and former University of Pennsylvania swimmer Paula Scanlan.

Penn was Lia Thomas’s school, and Scanlan swam with him as a teammate. So I called her up and she explained that swimming is a limited roster sport, so that every time he competed, a girl was left behind, and lost her chance to compete.

PAULA SCANLAN: And I watched this go on the entire season, and through the whole process, the administration at the University of Pennsylvania, the NCAA, all of these different organizations that I expected to stand up for us chose not to, and they told us that him being on the team was a non negotiable, and that if we ever spoke out against it, we would regret it, and that we would never be able to find a job, and our lives would forever be tainted by this. And finally, they told us, if we continue to object, they told us to seek therapy, and they gave us the contact for Psychological Services at school. This is something we have to fight back against…because the adults in the room did not do these things, the NCAA, University of Pennsylvania, all these different organizations that had the power to stop this did not.

EICHER: Some female athletes support the idea of what they call transwomen in female sports. Former U.S. women’s soccer star Meghan Rapinoe for one. But Scanlan points out that for Rapinoe, it’s purely theory. She never had to face male competition.

REICHARD: So we’ll end where we began, with swimmer Riley Gaines. She says the ongoing chaos is no surprise —when even a prospective Supreme Court justice refused to answer the question of “what is a woman?” A reminder from Ketanji Brown Jackson’s confirmation hearing, Senator Marsha Blackburn asks the questions.

SENATOR BLACKBURN: Can you provide a definition for the word woman?

JUSTICE JACKSON: Can I provide a definition? Mm-hmm. I can't.

SEN. BLACKBURN: You can't?

JUSTICE JACKSON: Not in this context. I’m not a biologist.

SEN. BLACKBURN: The word woman is so unclear and controversial that you can't give me a definition?

JUSTICE JACKSON: Senator, in my work as a judge, what I do is I address disputes. If there's a dispute about a definition, people make arguments and I look at the law and I decide. So I'm not …

SEN. BLACKBURN: The fact that you can't give me a straight answer about something as fundamental as what a woman is underscores the dangers.

That moment is forever etched in the mind of Gaines:

GAINES: Well, guess what, Ketanji Brown Jackson? I'm not a biologist…Thinking of an analogy here, I'm not a veterinarian either, but I know what a dog is. That's the stupidest thing I've ever heard.

And that’s this week’s Legal Docket!

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