Going to court to protect women’s spaces

Beth Stelzer, a Minnesota mother and amateur powerlifter, has traveled to eight states and testified at more than a dozen hearings, sometimes online, in support of bills introduced this year to protect girls and women’s sports.

Stelzer, founder of Save Women’s Sports, is one of many female athletes and women’s rights advocates whose testimonies have helped fuel legislative efforts in dozens of states to protect single-sex sports for women and girls. So far, eight states have passed laws preventing men who identify as women from competing in girls and women’s sports in public schools and colleges.

The Biden administration has taken aim at those laws. Biden, the U.S. Department of Education, and the Equal Employment Opportunity Commission (EEOC) have leveraged the Supreme Court’s 2020 Bostock v. Clayton County decision to issue directives that threaten single-sex restrooms, locker rooms, and athletic teams.

In a lawsuit filed last week, attorneys general from 20 states sought to halt those directives. One of those officials, Tennessee Attorney General Herbert Slatery, said the administration’s interpretation of Bostock is unlawful and Biden’s Jan. 20 executive order and federal agencies’ subsequent guidance excluded public input and put states at risk of losing federal educational funding.

“It was such a cavalier approach to changing the law,” Slatery said. “We disagree with the policy and the procedure and believe it needs to be corrected.”

Along with Tennessee, the lawsuit includes attorneys general from Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.

The Supreme Court in its Bostock decision defined “sex” to include gender identity in a narrow case about Title VII, a federal law barring employers from discrimination against employees and potential new hires. The court declined to answer questions about whether public restrooms and locker rooms had to accommodate transgender people. Still, in his dissent, Justice Samuel Alito warned that “sex” could be similarly redefined for purposes of Title IX, a federal law that requires equal opportunities for women in educational settings, including sports.

Months later, Biden’s executive order stated that the Bostock analysis changed the meaning of Title IX. The Biden administration in March ordered a review of Title IX and established a Gender Policy Council with the stated intention of expanding the federal law.

The Department of Education subsequently issued new guidance this summer, stating, among other things, it could initiate an investigation if a school prohibited a transgender student from joining a sports team or using a restroom incongruent with his or her biological sex or if a student’s peers declined to use his or her preferred pronouns. Schools found in violation of the policy could face federal sanctions.

Tennessee enacted its law protecting girls and women’s sports in March. Under the Department of Education’s guidance, it could lose $1.5 billion in federal education funding and $88 million in public higher education dollars, according to the lawsuit.

The EEOC similarly updated its guidance stating it could punish companies for prohibiting transgender employees from using showers, locker rooms, or restrooms based on their gender identity.

The state attorneys general argue the authority to expand federal discrimination policies “properly belongs to Congress, the states, and the people.”

The Equality Act, a federal bill that would expand discrimination protections to LGBT individuals in numerous areas, is currently stalled in the U.S. Senate.

Meanwhile, Stelzer, a survivor of sexual abuse, welcomed the legal challenge to stop the Biden administration from erasing sex-based rights: “If federal agencies choose to abandon women in the name of wokeness, the rights, privacy, and safety of females will disappear.”