States and educators battle to protect women in athletics

On Wednesday, a panel of three judges from the 6th U.S. Circuit Court of Appeals heard arguments in a case on whether males can compete in women’s athletics in schools across six states. Tennessee, Indiana, Ohio, West Virginia, Kentucky, and Virginia are challenging Title IX regulations from the U.S. Department of Education that expand the definition of “sex” to include “gender identity,” a move the states say hurts the rights of women.

Title IX is a federal law originally enacted in 1972 to protect equal educational opportunities for women in education and athletics. But in April, the Department of Education released updated regulations that blur the line between male and female, allowing men who identify as women to access female locker rooms, bathrooms, changing facilities, and more.

If states don’t comply, they could lose billions of dollars in federal educational funding, according to the states’ lawsuit.

“The department has used rulemaking power to convert a law designed to equalize opportunities for both sexes into a far broader regime of its own making,” contends the lawsuit, which was filed one day after the regulations were published. “The resulting regime is cold comfort to the teachers and students who now must toe the line of gender-identity directives or risk Title IX sanctions.”

In May, two more parties joined the suit: a West Virginia high-school female athlete and Christian Educators, a membership organization for Christian teachers and educators.

The athlete, identified in the lawsuit by the initials A.C., joined the suit after competing against a male athlete who identified as a female. The male played on A.C.’s middle school track-and-field team and allegedly took A.C.’s spot in a conference championship. The male student also finished ahead of nearly 300 female competitors over three years of competition on the girls’ track team.

Christian Educators joined the suit with concerns that the new regulations threaten educators’ free and religious speech rights.

In the last seven months, this case has had a whirlwind journey through the court system. In June, a district court temporarily blocked the Biden administration’s regulations from going into effect in August.

The Biden administration fought back and asked the Supreme Court for an emergency stay allowing the government to partially reinstate the updated regulations, allowing the unchallenged provisions of the rule to go into effect.

Ultimately, the Supreme Court denied the request in both this case and the similar case of State of Louisiana v. U.S. Department of Education, which remains pending in the 5th U.S. Circuit Court of Appeals. The high court’s ruling effectively upheld temporary pauses on the regulations in 26 states across the country.

The Biden administration appealed the district court’s ruling to the 6th Circuit, which led to last Wednesday’s oral arguments.

David Peters, an attorney representing the Biden administration, opened arguments by claiming the district court “fundamentally erred in issuing a sweeping preliminary injunction.”

He claimed it was legal for the regulations to update “sex” to include “gender identity” based on the Supreme Court’s 2020 ruling in Bostock v. Clayton County. There, the court found that sexual orientation and gender identity fall under Title VII rights protecting employees from discrimination.

Judges repeatedly questioned Peters on how a ruling for Title VII applied to this case involving Title IX and education rights. Peters argued that the wording and language of Title IX clearly show that its bar on sex discrimination includes gender identity, just like Bostock.

Judges pointed out that the government has had an inconsistent, shifting perspective on the wording of Title IX over the years. Peters said that judges need only to look at the plain text of Title IX to see how the Biden administration has made legal and reasonable updates.

Representing the states, attorney Whitney Hermandorfer described for the judges how the Title IX updates hurt women.

“Title IX does not require that girls shower and undress with boys, compete against boys with physical advantages, and room with boys on overnight school trips, but the rule imposes these and other unprecedented mandates that gut Title IX’s protections for women and privacy,” she said.

Hermandorfer argued that the Supreme Court’s refusal to grant an emergency stay partially reinstating the regulations makes the states’ 6th Circuit case attempting to fully halt the regulations “highly persuasive.”

Hermandorfer added that the judges should fully halt the Biden administration’s regulations, and not partially stop them. Half rules would be confusing for schools and students to try and navigate, she said.

The Biden administration faced a “withering attack” at the oral arguments, said John Bursch, an attorney with Alliance Defending Freedom, which represents the student athlete and Christian Educators.

The Biden administration is arguing for a “radical” redefinition of sex with its regulations, Bursch added. The updates strip women of equal opportunities and take away their privacy protections.

“[It’s] absolutely ludicrous when it comes to privacy and safety,” Bursch said. “The administration has rejected reality and chosen ideology over students’ best interests, and students and their parents deserve better than this.”

The judges could issue an opinion at any time on either the merits or scope of the district court’s temporary injunction, or they might wait to see if the district court gives an ultimate ruling on the case, Bursch said.

Or, the case could completely change in light of the presidential elections this week. “Depending on who wins the presidential election, it’s entirely possible that these Title IX regulations will be rescinded anyway,” Bursch said.