Equality on What Basis? Evaluating Title IX’s Requirements in the Transgender Context

Category: Print Issues

Equality on What Basis? Evaluating Title IX’s Requirements in the Transgender Context

Seth Lucas

Volume 31

, Issue 1

31 GEO. MASON L. REV. 389 (2023)

Introduction

Of the many federal statutes prohibiting sex discrimination,¹ two have profoundly impacted women’s educational and career opportunities.² The first, Title VII of the Civil Rights Act of 1964, prohibits, among other things, sex discrimination in certain employment decisions.³ The second, Title IX of the Education Amendments of 1972, prohibits sex discrimination in federally funded education programs.⁴ But like the sexes, these two statutes are fundamentally different.⁵ Title VII bars covered employers from taking certain employment actions because an employee has particular traits, such as having the male or female sex.⁶ In contrast, Title IX, a condition for receiving federal aid, requires covered aid recipients to give each person equal educational opportunities regardless of the person’s sex.⁷ But Title IX does not require sex-blind treatment. Title IX instead explicitly recognizes a person’s sex as relevant to participation in certain activities and access to certain physical spaces—such as with separate sports teams and locker rooms for boys and girls;⁸ fraternities and sororities;⁹ and father-son or mother-daughter activities.¹⁰

When Congress enacted Title VII and Title IX, Americans generally understood that “sex” refers to how a person’s body is organized for reproduction and that sex defines whether a person is male or female.¹¹ But in recent years, the transgender movement challenged that understanding.¹² The transgender movement claims that what a person is depends not on biology but instead on gender—a person’s inner “sense of being male, female, or something else.”¹³ It thus views biological traits like reproductive organs, chromosomes, or gamete production as having no ultimate bearing on whether a person is in fact male or female.¹⁴

In the transgender context, Title VII’s and Title IX’s protections consequently turn in part on the meaning of one three-letter word—”sex”—and its relationship to gender identity and transgender status.¹⁵ In 2020, for example, the Supreme Court concluded in Bostock v. Clayton County¹⁶140 S. Ct. 1731 (2020). that Title VII prohibits discrimination because of transgender status, even assuming that “sex” in Title VII refers to whether a person is biologically male or female.¹⁷ The Court explained that transgender status arises from an incongruence between the person’s sex and gender identity, so an employer could not help but consider sex (albeit abstractly) by considering transgender status.¹⁸

But Title VII’s and Title IX’s protections also depend on what each statute says about sex.¹⁹ Bostock declined to decide whether its reasoning applies to other statutes such as Title IX,²⁰ and rightly so. The text of Title IX, contemporary understandings, and subsequent early interpretations of Title IX by the executive branch and Congress all demonstrate that sex discrimination under Title IX means something very different than under Title VII. Like “[t]he two sexes,” Title VII and Title IX are simply “not fungible.”²¹

Although the Supreme Court has yet to interpret Title IX’s requirements in the transgender context,²² three federal courts of appeals have.²³ Two of these courts concluded that Title IX requires federal funding recipients to treat a person consistent with that person’s gender identity.²⁴ Put another way, they determined that where sex and gender identity conflict, Title IX prohibits treating a person in a manner consistent with that person’s sex. Thus, if a student who has a male sex identifies as female, under these two decisions, Title IX requires treating that student as a female.

Those decisions misunderstood Title IX. Title IX does not impose such a requirement. And even if Bostock’s reasoning, which cannot be applied to Title IX, were applied, Title IX would still permit a federal aid recipient to treat a person in a manner consistent with that person’s sex regardless of whether the person has transgender status.²⁵ Part I of this Comment outlines the development and early interpretations of Title IX. Part II outlines Title VII’s and Title IX’s respective disparate treatment standards, the Supreme Court’s reasoning in Bostock interpreting Title VII, and the three federal courts of appeals’ reasoning in interpreting Title IX in the transgender context. Part III then explains that Title IX, as originally understood, permits treating a person as male or female based on that person’s immutable sex. Part IV explains that Bostock’s reasoning cannot be applied to Title IX because of the fundamental differences between Title VII and Title IX. Part IV also explains that even if the but-for test in Bostock were applied, Title IX would still permit treating a person as male or female based on that person’s sex. Because Congress in 2010 extended Title IX’s requirements to cover federally funded medical programs,²⁶ Part V examines the implications of an original understanding of Title IX for insurance coverage and medical treatments in the transgender context.

As an initial matter, this Comment does not address the proper policy approach to questions surrounding gender identity and transgender status. It recognizes, however, that such questions are sensitive and controversial,²⁷ and that the use of certain terms or definitions over others may appear to be a statement on those questions. Where this Comment uses such terms or definitions, it does so solely for clarity. That said, two terms can and should be defined. “Gender identity” refers to a person’s “internal sense of being male, female, or something else,” such as genderqueer, agender, or nonconforming.²⁸ “Transgender status,” in turn, indicates that a person has a gender identity that differs from that person’s sex.²⁹ Thus, for instance, a transgender female is a person whose sex is male but who identifies as a female.³⁰

I. Development and Early Interpretations of Title IX

The early twentieth century was marked by increasing women’s activism, resulting in the Nineteenth Amendment and greater numbers of women entering both the workforce and higher education.³¹ Although this activism ignited debates on everything from the vote to hemlines, women’s social roles did not change significantly for most of the century.³² Indeed, even as women’s participation in the workforce rose significantly during the Second World War, American society largely retained longstanding views on women’s roles.³³ But by the middle of the century, the feminist movement that brought about the Nineteenth Amendment was evolving.³⁴ As the United States plunged into the second half of the twentieth century, a new wave of feminism began to challenge the idea that a woman’s body defined her role in society.³⁵ A more ambitious wing of the movement went further, however, and argued that physical distinctions between men and women should be completely irrelevant.³⁶

Although this unlinking of the body from social roles would later have implications for social views on sex and gender,³⁷ in the 1960s and 1970s, biological distinctions were still viewed as fixed and defining whether a person is male or female. For instance, one 1966 article explained that “[t]he standard outcome in the biological development of the individual is a predominance of anatomical and physiological structures and functions that are the basis of either maleness or femaleness.”³⁸ Numerous dictionaries from that time echoed a similar understanding of sex as either male or female and defined by how a person’s body is reproductively organized.³⁹ Even Leo Kanowitz in his influential 1969 text, Women and the Law: The Unfinished Revolution, recognized “basic anatomical differences between male and female.”⁴⁰

Indeed, the feminist movement did not challenge the idea that men and women are biologically different.⁴¹ It instead challenged the perception of womanhood as understood in relation to social and domestic roles.⁴² Feminist Betty Friedan, for example, argued in 1963 that a woman’s “biological function” should not be interpreted to require a woman to be a mother and thus stifle any “goal,” “purpose,” or “ambition.”⁴³ And Shulamith Firestone, arguing that “the end goal” is a world where sex distinctions “would no longer matter culturally,” implicitly acknowledged that biological distinctions exist and define whether a person is male or female.⁴⁴

In 1970, these social currents converged with greater federal involvement in education to spark conversations about sex discrimination in higher education.⁴⁵ That year, a special subcommittee of the House of Representatives’ Committee on Education held hearings on legislation that would make “sex” a protected classification in Title VI.⁴⁶ Title VI made nondiscrimination regarding race, color, and national origin a condition for receiving federal funds.⁴⁷ The bill sought to bar federal funding recipients from also engaging in sex discrimination.⁴⁸ During the hearings, “it became clear that educational institutions were the primary focus of complaints concerning sex discrimination.”⁴⁹ But witnesses from the United States Justice Department and the Civil Rights Commission, while supporting the legislation’s general goal, raised concerns about its “significant public policy consequences.”⁵⁰ Such consequences included denial of funding to single-sex institutions, elimination of sex-specific housing, denial of funding and government surplus to the Boy and Girl Scouts, and a dismantling of “bona fide distinctions” between men and women.⁵¹ These and other witnesses proposed that Congress should instead adopt separate legislation that would “achieve . . . sexual equality without eradicating bona fide distinctions based on sex.”⁵²

Sec. 2. (a) No person in the United States shall, on the ground of sex, be excluded from participation in, denied the benefits of, or subjected to discrimination under, any education program or activity receiving Federal financial assistance, except where sex is a bona fide ground for differential treatment.

. . . .

Sec. 6. For the purposes of this act, the term “education” includes pre-school, elementary, secondary and post-secondary education.

Id. at 690–91 (statement of Jerris Leonard). The language would have barred sex discrimination in, for instance, “availability of scholarships and fellowships; admission to graduate programs; and hiring, compensation, and promotion of faculty and staff members.” Id. at 678. It would have also exempted single-sex institutions as they “could satisfy the exception regarding bona fide distinctions.” 1970 Hearings, Part 2, supra note 49, at 678. And it would have permitted “separate dormitories and separate gymnasiums for men and women” while allowing regulating agencies to otherwise define the extent of the proviso “on the basis of particular situations which arise.” Id. The proposal “would not reach federally assisted programs outside the area of education.” Id.

The proposed legislation failed.⁵³ But much of the language proposed in the hearings resurfaced in the House version of the Education Amendments of 1972.⁵⁴ Like the original proposals, the new proposal was also framed as an amendment to Title VI.⁵⁵ When the legislation emerged from the House Committee and then the Joint Committee, however, the language was moved into its own separate title, Title IX.⁵⁶ Unlike the original proposals in 1970, the language did not include a general exemption for bona fide distinctions.⁵⁷

Title IX, in its advocates’ eyes, had two reciprocal goals.⁵⁸ First, Title IX aimed to increase opportunities for women to access and participate in higher education.⁵⁹ Second, it sought to prevent federal funding recipients from using tax dollars to bar women from educational opportunities.⁶⁰ Advocates emphasized that Title IX would do for sex what Title VI did for race in the context of federal funding.⁶¹ But unlike with the treatment of race, no one disputed that bona fide differences existed between the two sexes,⁶² even if debate did exist at the time over the extent and implications of those differences.⁶³ No one, for instance, contested that the housing exemption undermined Title IX’s objectives.⁶⁴ In 1974 and then again in 1976, Congress amended Title IX to clearly exempt various single-sex associations and programs from its nondiscrimination provision.⁶⁵

Moreover, shortly after Title IX’s adoption, Congress permitted the then-Department of Health, Education, and Welfare (“HEW”) to promulgate regulations that explicitly allowed separate sports programs for males and females.⁶⁶ Congress did not create a statutory exception from the nondiscrimination requirement for sports, however. When HEW began developing regulations addressing sports at Congress’s direction, it grappled with two conflicting policy positions.⁶⁷ Some stakeholders urged the full integration of sports, even if gradually accomplished by temporarily allowing sex-specific teams.⁶⁸ Other stakeholders, however, argued that separate but equal programs were necessary for women to develop and pursue their own opportunities.⁶⁹ HEW chose the latter approach.⁷⁰ And despite attempts in Congress to reject the final regulations, Congress allowed them to go into effect.⁷¹

Under the final 1975 HEW athletic regulations, equal opportunity did not mean that women and men must be treated identically. Rather, equal opportunity required that “male and female athletes should receive equivalent treatment, benefits, and opportunities” and that “athletic interests and abilities of male and female students must be equally effectively accommodated.”⁷² The regulations required, for instance, housing and locker rooms provided on a sex-specific basis to be “comparable” in quality.⁷³ Scholarships had to be available “substantially proportionate” to men’s and women’s “participation rates.”⁷⁴ As HEW acknowledged in its 1979 interpretation, the regulations countenanced that “[s]ome aspects of athletic programs may not be equivalent for men and women because of unique aspects of particular sports or athletic activities.”⁷⁵ As long as the unique needs of male and female students in each program were “met equivalently,” however, such differences were justifiable.⁷⁶ Again, “identical benefits, opportunities, or treatment [were] not required, provided the overall effect of any differences is negligible.”⁷⁷ Under the regulations, equality did not require ignoring biological differences.⁷⁸

Title IX and its early implementing regulations thus incorporated some feminist views while rejecting others.⁷⁹ The statute and implementing regulations effectively made a woman’s body irrelevant to the educational opportunities that a woman could pursue. But it did not make physical distinctions between men and women entirely irrelevant as some feminists and groups urged.⁸⁰ Title IX and its implementing regulations affirmed distinctions between the two sexes while ensuring that such distinctions are not the basis for unequal treatment that could limit opportunities for either sex. As HEW stated regarding athletics, Title IX requires “equal”—not “identical”—treatment.⁸¹

II. Title IX, Title VII, and Interpretations in the Transgender Context

A. Title IX’s Disparate Treatment Standard

Shortly after Title IX’s adoption, the U.S. Supreme Court recognized a private right of action to enforce Title IX’s nondiscrimination requirements.⁸² To establish a Title IX cause of action, a plaintiff must demonstrate exclusion from, denial of benefits of, or discrimination under an educational program that receives federal financial assistance, and that the discrimination occurred on the basis of the plaintiff’s sex.⁸³ That a person was merely treated differently on the basis of sex is insufficient in itself to establish Title IX liability.⁸⁴ Liability can arise either from intentional discrimination or deliberate indifference to discrimination.⁸⁵ For liability to arise from deliberate indifference, a plaintiff must also show that the defendant had “actual knowledge” of the discrimination and chose to not act.⁸⁶

Generally, courts agree that Title IX prohibits only intentional discrimination—disparate treatment—but not disparate impact.⁸⁷ Although Title IX did not replicate Title VI, because Title IX was modeled on Title VI, courts have looked to how Title VI operates as informative when interpreting Title IX.⁸⁸ Initially, federal courts of appeals split over whether Title IX permitted disparate impact claims because of disagreement over whether Title VI prohibited only intentional discrimination.⁸⁹ Disparate impact discrimination occurs when a facially neutral policy or practice causes unequal outcomes for a protected class, but it does not require a showing of discriminatory intent.⁹⁰ That said, courts required plaintiffs to prove intent to obtain money damages.⁹¹ But in 2001, the Supreme Court held in Alexander v. Sandoval⁹²532 U.S. 275 (2001). that Title VI prohibits only intentional discrimination and that a right of action therefore did not exist under Title VI for disparate impact discrimination.⁹³ Although the Court of Appeals for the Seventh Circuit indicated that Title IX might provide non-monetary relief for unintentional discrimination,⁹⁴ since Sandoval, courts have generally viewed Title IX as prohibiting only intentional forms of discrimination.⁹⁵

In Poloceno v. Dallas Independent School District,⁹⁶ for example, a parent sued the school district after her daughter was hospitalized due to punishment for not wearing appropriate gym attire.⁹⁷ The Court of Appeals for the Fifth Circuit held that the punishment—increasing numbers of “ceiling jumps” for repeat violations—was not intentional discrimination because it was equally applied to boys and girls.⁹⁸ The court rejected the parent’s disparate impact claim, that girls were disproportionately affected, because “only intentional discrimination, not disparate impact, is actionable under Title IX.”⁹⁹

B. Title VII’s Disparate Treatment Standard

The disparate treatment analysis under Title VII is markedly different than under Title IX. Under Title VII, to establish prima facie disparate treatment, an employee must generally show that the employee (1) “is a member of [a] protected class,” (2) “was qualified for [the] position,” (3) “experienced an adverse employment action,” and (4) was treated worse than “similarly situated individuals outside [the] protected class.”¹⁰⁰ A plaintiff can meet the fourth prong of the test by showing that “other circumstances surrounding the adverse employment action give rise to an inference of discrimination.”¹⁰¹ The employer must then give a nondiscriminatory reason for the action, which the plaintiff can overcome “by a preponderance of the evidence” that the proffered basis was “a pretext.”¹⁰²

Because Title VII prohibits discrimination “because of” sex, sex stereotyping can evidence sex discrimination under Title VII.¹⁰³ In Price Waterhouse v. Hopkins,¹⁰⁴ a plurality of the Supreme Court resolved a circuit split on the burdens of proof required for each party in a Title VII suit.¹⁰⁵ In doing so, the plurality explained that sex stereotyping can be evidence of sex discrimination, even though engaging in stereotyping is not always itself Title VII sex discrimination.¹⁰⁶ It reached this conclusion because an employer who acts based on a sex stereotype considers the person’s sex, which Title VII prohibits.¹⁰⁷ Even with evidence of sex stereotyping, however, a plaintiff still must prove that the employer would not have made the employment decision in question but for the employee’s sex.¹⁰⁸ And an employer can show through a preponderance of the evidence that even if sex were a but-for cause, the employer is not liable because it would have arrived at the same decision without considering the employee’s sex.¹⁰⁹

C. Courts’ Interpretations of Title VII and Title IX

1. Bostock and Title VII

In 2020, the Supreme Court held in Bostock v. Clayton County, Georgia that Title VII prohibits “fir[ing] an individual for being . . . transgender.”¹¹⁰ Such firing violates Title VII, the Court explained, because the employer “fire[d] that person for traits or actions it would not have questioned in members of a different sex.”¹¹¹ Thus, sex impermissibly “play[ed] a necessary and undisguisable role in the decision.”¹¹²

Bostock began by outlining a framework to determine whether a basis for an adverse employment action is intentional sex discrimination under Title VII.¹¹³ Title VII prohibits “taking certain actions ‘because of’ sex.”¹¹⁴ In prior decisions, the Court, defined “because of” as “by reason of” or “on account of.”¹¹⁵ Put simply, Title VII bars an employer from making certain employment decisions because an employee has a particular sex.¹¹⁶ Thus, Title VII incorporates a “but-for causation” test, which examines whether “a particular outcome would not have happened ‘but for’ the purported cause.”¹¹⁷ To determine whether “sex” was the “but-for” cause, the test “directs . . . chang[ing] one thing at a time and see[ing] if the outcome changes.”¹¹⁸ Even if multiple but-for causes are found, if the outcome changes when the only difference is sex, sex is one but-for cause in violation of Title VII.¹¹⁹

The but-for test led the Court to conclude that firing an employee because of the employee’s transgender status constitutes sex discrimination.¹²⁰ The Court did not explicitly define “sex” in Title VII. Rather, it “proceed[ed] on the assumption that ‘sex’ . . . referr[ed] only to biological distinctions between male and female.”¹²¹ Applying the but-for test, the Court explained that when an employer discriminates against an employee for having transgender status, “two causal factors may be in play—both the individual’s sex and something else (the sex . . . with which the individual identifies).”¹²² To illustrate why, the Court gave the example of two employees, one “who was identified as male at birth but now identifies as a female” and “an otherwise identical employee who was identified as female at birth.”¹²³ If the employer fires the employee who was male at birth, the employer fired that employee “for traits or actions that it tolerates in an employee identified as female at birth.”¹²⁴

The Court viewed the discrimination in dispute as against an employee for having a transgender status.¹²⁵ Transgender status, as the Bostock Court understood it, arises from an incongruence between sex and gender identity.¹²⁶ Thus, transgender status is a signal that a person has a particular combination of sex and “something else”—a particular gender identity. The question, in the Court’s eyes, is thus whether the trait is problematic alone or whether the trait is only a problem because it occurs in combination with a particular sex.¹²⁷ Comparing two employees with the same trait—identifying as a female—but with different sexes produces different outcomes.¹²⁸ Thus, in the Court’s analysis, the adverse action turned on the employees’ sex.¹²⁹

The Court did not reach this conclusion by finding that transgender status is “related to sex in some vague sense or because discrimination on [the basis of transgender status] has some disparate impact on one sex or another.”¹³⁰ The Court reached this conclusion because discrimination “on [this] ground[ ] requires an employer to intentionally treat individual employees differently because of their sex.”¹³¹ Put another way, firing a person for having transgender status treats that person worse “for traits or actions [the employer] would not have questioned in members of a different sex.”¹³² The tolerance of the traits thus depends on sex.¹³³

The Court further presumed, however, that considering “sex” in the abstract is sufficient to trigger Title VII liability. As the dissent observed, merely stating that a person has transgender status says nothing about the person’s specific sex or specific gender identity.¹³⁴ The majority recognized as much, explaining that Title VII liability is triggered if an employer merely considers that the employee’s identity and sex do not align—even if the employee’s exact sex is otherwise unknown.¹³⁵

In sum, the Court reached its conclusion by assuming a binary, biologically rooted understanding of “sex” as used in the statute.¹³⁶ Bostock neither redefined “sex” to encompass gender identity¹³⁷ nor held that discrimination because of gender identity is sex discrimination. On the contrary, it explicitly treated gender identity and sex as concepts that exist independent of each other.¹³⁸ Whether a person is transgender, in the Court’s eyes, turns on the relationship between sex and gender identity. If the two don’t align, the person has transgender status. If they do align, the person does not.

2. Title IX in the Transgender Context

Although the Supreme Court declined to address Title IX in the transgender context,¹³⁹ three federal courts of appeals have directly addressed whether Title IX permits treating a person consistent with that person’s biological sex when the person has transgender status.¹⁴⁰ The Courts of Appeals for the Fourth and Seventh Circuits, on different legal theories, concluded Title IX does not permit such treatment.¹⁴¹ In contrast, the Court of Appeals for the Eleventh Circuit, sitting en banc, held Title IX does allow such treatment.¹⁴² Although the precise details vary, the overarching facts of the first three of these cases are similar.¹⁴³ Each plaintiff—Whitaker, Grimm, and Adams—was born female but identified as male.¹⁴⁴ When the plaintiffs sought to use the male restrooms in their respective schools, however, they were ultimately denied access.¹⁴⁵ Each school instead offered the alternative of using a unisex restroom in addition to the female restroom.¹⁴⁶

a. Whitaker v. Kenosha Unified School District

The Court of Appeals for the Seventh Circuit was the first of the three courts to decide whether Title IX compels a school to treat a student consistent with that student’s gender identity.¹⁴⁷ Applying Title VII sex-stereotyping precedents, the court explained that by barring Whitaker, a transgender male, from the male bathroom, Kenosha’s actions constituted a penalty for “gender non-conformance.”¹⁴⁸ The court therefore held that the school violated Title IX under a sex-stereotyping theory.¹⁴⁹

The court began its Title IX analysis by explaining that a plaintiff can bring a claim under Title VII under a sex-stereotyping theory.¹⁵⁰ The dispute, the court observed, was whether a “student who alleges discrimination on the basis of . . . transgender status can state a claim of sex discrimination” under Title IX.¹⁵¹ Title IX neither defined “sex” nor used the modifier “biological.”¹⁵² Although the court had previously read “sex” in Title VII narrowly to “exclude transsexuals,” the court explained that Price Waterhouse afterwards embraced “a broad view” that Title VII prohibits “disparate treatment . . . resulting from sex stereotypes.”¹⁵³ And the Court of Appeals for the Seventh Circuit, as well as other courts, since then “have recognized a cause of action . . . when an adverse action is taken because of [a] . . . failure to conform to sex stereotypes.”¹⁵⁴

Next, the court observed that transgender status arose from a person’s non-conformity with “sex-based stereotypes of the sex that he or she was assigned at birth.”¹⁵⁵ Thus, as other courts have concluded, Title VII allows claims of discrimination based on transgender status.¹⁵⁶ The school district contended that “this reasoning flies in the face of Title IX” because Congress failed to make transgender status a protected classification under Title IX, but the court disagreed.¹⁵⁷ Congressional inaction, the court explained, could also indicate that the law already included the proposed change.¹⁵⁸

Whitaker was thus likely to prevail under Title IX because his complaint alleged that the district “denied him access . . . because he is transgender.”¹⁵⁹ In the court’s eyes, requiring a student “to use a bathroom that does not conform with his or her gender identity punishes that [student] for his or her gender non-conformance.”¹⁶⁰ In other words, Kenosha subjected Whitaker “to different rules, sanctions, and treatment than non-transgender students.”¹⁶¹ And by making Whitaker the only student to use the single-user bathrooms, the district further extended this differential treatment.¹⁶²

b. Grimm v. Gloucester County School Board

The Court of Appeals for the Fourth Circuit reached the same conclusion in Grimm¹⁶³Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 593 (4th Cir. 2020). as the court did in Whitaker¹⁶⁴858 F.3d at 1039. but on a disparate treatment theory.¹⁶⁵ Relying on Bostock, the majority determined that the school board discriminated on the basis of sex.¹⁶⁶ Bostock, the court observed, held that discrimination because of transgender status “is discrimination ‘on the basis of sex.’”¹⁶⁷ That follows, the court explained, because the discriminator must “necessarily refer[ ] to the individual’s sex to determine incongruence between sex and gender.”¹⁶⁸ Because the school board had to refer to Grimm’s sex to determine that Grimm could not use the male bathroom, Grimm’s sex was the “but-for cause” of the exclusion.¹⁶⁹ Moreover, although Bostock did not address Title IX,¹⁷⁰ discrimination under Title IX “mean[s] treating that individual worse than others who are similarly situated.”¹⁷¹ Grimm, the court stated, was treated worse than “other boys” because Grimm “could not use the restroom corresponding with his gender.”¹⁷²

Although Title IX permitted sex-separate bathrooms, the court further noted, the regulation cannot override the statute’s prohibition on sex discrimination.¹⁷³ That said, Grimm challenged “discriminatory exclusion” from sex-separate restrooms, not those restrooms’ existence.¹⁷⁴ And so the board could maintain sex-separate restrooms but could not “rely on its own discriminatory notions of what ‘sex’ means.”¹⁷⁵ Put simply, the court explained, the board invented its own classification (“biological gender”), defined it as the sex marker on a birth certificate, and then refused to recognize an updated birth certificate.¹⁷⁶ The court therefore affirmed the district court’s grant of summary judgment on Grimm’s Title IX claim.¹⁷⁷

Judge Paul Niemeyer, dissenting, countered that Title IX in fact allowed separate restrooms on the basis of biological sex.¹⁷⁸ The term “sex” in Title IX, he argued, “must be understood as referring to the traditional biological indicators that distinguish a male from a female,” not a person’s gender identity or gender expression.¹⁷⁹ First, he argued, dictionaries uniformly defined sex in that manner.¹⁸⁰ Even Bostock, he noted, assumed that “sex” in Title VII—which was adopted about the same time as Title IX—referred to such biological distinctions.¹⁸¹ Second, Title IX allows sex-separate facilities to protect individuals’ privacy interest in shielding their undressed bodies from members of the opposite sex.¹⁸² Indeed, the Supreme Court recognized that “‘physical differences between men and women’ are ‘enduring’ and render ‘the two sexes . . . not fungible.’”¹⁸³ Third, Grimm was born a biological female and thus was not similarly situated to students born biologically male.¹⁸⁴ Because Title IX expressly authorized separate bathrooms based on sex, Judge Niemeyer concluded, the majority’s opinion was a statement on how transgender students should be treated, not what Title IX requires.¹⁸⁵

c. Adams v. School Board of St. Johns County

Echoing Judge Niemeyer’s argument in Grimm, the Court of Appeals for the Eleventh Circuit held in December 2022 that the “unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex” did not violate Title IX.¹⁸⁶ Beginning with the text of Title IX and its implementing regulations, the court explained that the appeal required interpretation of the term “sex.”¹⁸⁷ Because Title IX included statutory and regulatory “carve-outs for differentiating between the sexes,” the court could not simply determine whether discrimination on the basis of transgender status is sex discrimination.¹⁸⁸ After all, the court noted, if “sex” refers to “biological sex,” then the carve-out for separate bathrooms “on the basis of sex” permits the Board’s policy.¹⁸⁹

Title IX is not ambiguous, the court concluded.¹⁹⁰ As “[r]eputable dictionary definitions” demonstrate, including the dictionary relied on by the district court, “sex” when Title IX was adopted referred to “biological sex.”¹⁹¹ And because ambiguity arises from a statute’s context rather than possible definitions, Title IX’s lack of a definition of “sex” does not evidence ambiguity.¹⁹² On the contrary, the court explained, Title IX’s carve-outs reveal that sex must refer to biology.¹⁹³ Title IX, for instance, permits sex-separate living facilities.¹⁹⁴ If sex were ambiguous or included gender identity, the court reasoned, then a transgender student could live in housing corresponding with the student’s sex and housing corresponding with the student’s gender identity.¹⁹⁵ The carve-out for sex-separate housing would make no sense.¹⁹⁶

The court then rejected the argument that prior cases had read “gender identity” or “transgender status” into the meaning of “sex.”¹⁹⁷ Bostock, the court explained, proceeded on the assumption that “sex” in Title VII referred to “biological distinctions” and did not define sex to include transgender status.¹⁹⁸ Price Waterhouse and the Court of Appeals for the Eleventh Circuit’s own precedent only dealt with sex stereotypes in the workplace and did not “depart[ ] from the plain meaning of ‘sex.’”¹⁹⁹ And “‘sex’ is not a stereotype,” the court added.²⁰⁰ Contrary to the district court’s assumption, “sex” does not mean one thing for a transgender person and another for a non-transgender person.²⁰¹ Because Title IX expressly allows bathrooms separated on the basis of sex, the majority further observed, a non-transgender biological female would fail legally in a demand to use the male restroom.²⁰² Adams’ claim, therefore, failed as well.²⁰³

The court further noted that the district court’s interpretation would create a “dual protection” that elevates protections for transgender status over protections for sex.²⁰⁴ Under the district court’s reading, “an entity would be prohibited from installing or enforcing the otherwise permissible sex-based carve-outs when the carve-outs come into conflict with a transgender person’s gender identity.”²⁰⁵ This, the majority charged, does not align with Title IX’s purpose or the plain meaning of “sex” when Title IX was adopted.²⁰⁶

Even if Title IX was ambiguous, the majority concluded, the Spending Clause compelled ruling in the school’s favor on Adams’s Title IX claim.²⁰⁷ Congress is expected to speak clearly when it places a condition on federal funds.²⁰⁸ The widespread practice of separating bathrooms and living facilities based on biological sex, the majority argued, belies the notion that the School Board should have been on notice that its policy violated Title IX.²⁰⁹ Moreover, Adams’s interpretation would impact not only bathrooms but also living facilities, locker rooms, and sports.²¹⁰ “Absent a clear statement from Congress,” the majority concluded, “such a reading . . . would offend first principles of statutory interpretation and judicial restraint.”²¹¹

The opinion was accompanied by a brief concurrence and four dissents. Judge Barbara Lagoa, concurring, argued that redefining sex would adversely impact women’s sports.²¹² Judge Charles Wilson, dissenting, charged that sex is “not static” based on intersex conditions.²¹³ Because intersex students might change their respective sexes or have genitalia that do not align with their sex, Judge Wilson argued, the Board’s policy discriminates on the basis of biological sex and does not solve privacy concerns.²¹⁴ Judges Adalberto Jordan and Robin Rosenbaum, also dissenting, only focused on Adams’s equal protection claim.²¹⁵ Judge Jill Pryor, however, offered a substantive critique of the majority’s Title IX analysis.²¹⁶

First, Judge Pryor argued, the majority reframed the case.²¹⁷ The school board, she stated, defined “biological sex” as “anatomical” or “physiological” sex but declined to define either term.²¹⁸ The board’s definition of biological sex, she wrote, was “the sex a doctor assigns an infant in the moments after birth by examining the infant’s external genitalia.”²¹⁹ This definition, she proceeded to argue, broke with the scientific communities’ understanding of sex, which she asserted encompassed physical traits as well as gender identity.²²⁰ And it ignored that biological components might diverge and that gender identity is the primary determinant of sex.²²¹ By defining “biological sex” as “sex based on chromosomal structure and anatomy at birth,” Judge Pryor charged, the majority ignored the record, including the School Board’s definition of sex.²²² Moreover, the case was about discrimination against transgender students, she contested, not “the legality of sex-separated bathrooms.”²²³

Judge Pryor proceeded to determine that the exclusion was discriminatory.²²⁴ Cisgender students, she explained, could use the restroom corresponding with their gender identities, but transgender students could not.²²⁵ Assuming that sex in Title IX refers unambiguously to biological sex, she then explained that sex includes gender identity.²²⁶ Thus, a person “can be male if some biological components of sex, including gender identity, align with maleness.”²²⁷

Next, Judge Pryor argued that “on the basis of” imposed the but-for causation test.²²⁸ Applying Bostock, she explained that “Adams was excluded from the boys’ bathroom under the policy . . . because he had one specific biological marker traditionally associated with females, genital anatomy (or, put differently, because he lacked that one specific biological marker traditionally associated with males).”²²⁹ Thus, Judge Pryor concluded, Adams was excluded on the basis of sex.²³⁰

Judge Pryor further argued that the carve-outs did not rescue the policy.²³¹ The carveouts do not address, she stated, what facility a person should use when the person’s “biological markers of . . . sex point in different directions.”²³² Adams, she observed, has both male and female biological markers as a transgender boy.²³³ Thus, Adams’s claim “is not foreclosed by the Title IX carveouts.”²³⁴

Judge Pryor concluded by asserting that allowing transgender students to use the bathroom corresponding with their respective gender identities would not turn private facilities or sports teams “into sex-neutral areas and activities.”²³⁵ Adams’ case, she explained, did not address “how to assign gender fluid individuals”—individuals “whose gender changes between male and female.”²³⁶ Moreover, she argued, that “sex is a but-for cause of differential treatment does not necessarily mean that actionable discrimination exists.”²³⁷ But “[w]here exclusion implies inferiority, as it does here, principles of equality prevail.”²³⁸ By excluding Adams from the boys’ bathroom, she emphasized, the school placed on Adams “a ‘badge of inferiority.’”²³⁹

III. The Original Understanding of Title IX

Title IX permits treating a person as male or female based on that person’s sex, even if that person has transgender status. As originally understood, “sex” in Title IX refers to whether a person is male or female based on how the person’s body is reproductively organized. And as the text, contemporary understandings, and subsequent early interpretations of Title IX by the executive branch and Congress demonstrate, Title IX’s requirement is one of equal opportunity, not sex blindness. Title IX’s disparate treatment test thus looks at whether students are given equal opportunities and access to benefits or are subject to the same standards—not whether sex was ever considered.

A. The Meaning of “Sex”

1. Historical Understandings of “Sex”

The Adams majority rightly understood Adams’s sex as female because the sex of a claimant in the Title IX context must be understood as it would have been when Title IX was adopted. After all, Title IX prohibits discrimination “on the basis of sex.” What that means, however, depends on what “sex” is.²⁴⁰ And as the majority and Judge Pryor’s disagreement in Adams illustrates, in the transgender context, the definition of “sex” matters.²⁴¹

But “sex” is not whatever anyone says it is. Once a term is embedded in a statute, its definition is static rather than evolving over time.²⁴² Terms and phrases bear the ordinary public meaning they bore when Congress placed them into the statute.²⁴³ What a statute means is the same as what it meant when enacted, regardless of what the same words or terms mean today.²⁴⁴ By prohibiting discrimination on the basis of sex, Title IX prohibits discrimination on the basis of sex as sex was understood when Title IX was adopted.

“Sex” at the time of Title IX’s enactment—and for years afterwards—referred to a male-female binary determined by the wholistic organization of a person’s body for reproductive function.²⁴⁵ Societal views at the time of Title IX’s enactment also reflected this understanding.²⁴⁶ By arguing that a woman’s social roles should not be defined by her body, for instance, the feminists of the mid-twentieth century reaffirmed that a woman is a woman because of how her body is reproductively organized. Witnesses in the 1970 hearings repeatedly recognized the existence of bona fide sex distinctions. And the policy debates following Title IX’s adoption reflected the view that the fundamental difference between males and females is physical.²⁴⁷ Title IX’s adoption sent a clear message: one’s body should not determine one’s opportunities. Unlike in the Title VII context, where the Court recognized debate over whether “sex” includes societal norms,²⁴⁸ in the Title IX context, “sex” unequivocally does not refer to such norms.

Moreover, as the Adams majority observed, the context of Title IX further demonstrates that the ordinary meaning of sex referred to a male-female binary, not gender identity.²⁴⁹ Today, far more than two gender identities are recognized.²⁵⁰ But Title IX speaks in terms of a binary.²⁵¹ For instance, the 1979 HEW Interpretation repeatedly referred to “the other sex” and “male and female” in outlining standards for treating both sexes equally.²⁵² Even today, the Department of Education’s regulations require that “toilet, locker room, and shower facilities” that are provided “on the basis of sex . . . for students of one sex” are “comparable to such facilities provided for students of the other sex.”²⁵³

Bostock does not compel a contrary understanding of sex in Title IX. Even if its reasoning did apply in the Title IX context, it would not require finding that the term “sex” encompasses gender identity or transgender status. Bostock stated that “transgender status [is] inextricably bound up with sex,” but not because transgender status and sex are related.²⁵⁴ The Court of Appeals for the Fourth Circuit in Grimm explained why:

As the Supreme Court noted, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” That is because the discriminator is necessarily referring to the individual’s sex to determine incongruence between sex and gender, making sex a but-for cause for the discriminator’s actions.²⁵⁵

The court in Grimm correctly understood what Bostock said about the relationship between sex, gender identity, and transgender status. Under Bostock, transgender status arises from an incongruence between a person’s sex and gender identity.²⁵⁶ Moreover, Bostock treats gender identity as an independent trait distinct from sex.²⁵⁷ After all, the Court in Bostock “proceed[ed] on the assumption that ‘sex’ signified . . . only to biological distinctions between male and female.”²⁵⁸ Bostock did not weave gender identity or transgender status into any definition of sex or make gender identity and sex even somewhat conceptually related.²⁵⁹

In sum, contrary to the definition proposed by the Adams dissent, “sex” was not defined by gender identity at the time of Title IX’s adoption. Nor was it understood as determined by gender identity in the years following when Title IX’s implementing regulations were promulgated.²⁶⁰ Rather, “sex” was defined solely by the wholistic organization of the body for reproductive function.²⁶¹ This definition of sex has endured and continues to be used today.²⁶² Because of that historical understanding of “sex,” the Courts of Appeals for the Fourth and Seventh Circuits erred when they treated students having the female sex but who identified as male as boys.²⁶³ Those cases were not about two classes of boys, one transgender and one not. Regardless of how the students identified, through the lens of Title IX, those cases were about girls who wanted to be treated identically to boys. That should have been the courts’ starting point, as it was in Adams. No matter a person’s gender identity, in a Title IX disparate treatment analysis, that person must be viewed as male or female based solely on that person’s sex.

2. Intersex Conditions

Moreover, contrary to the Adams dissent’s claims, intersex conditions do not demonstrate that a person’s sex can change and thus do not prove that a person with transgender status could in fact become a different sex for the purposes of Title IX. Judge Wilson’s dissent in Adams makes much of intersex conditions to argue that sex is fungible, but his argument misses the point of the evidence he relies on. As he recognizes, intersex conditions are “conditions of physiological development.”²⁶⁴ In other words, the body deviated from a biological norm in development.²⁶⁵ When a person has 5-alpha reductase, for instance, the person might physically appear as female until puberty or later, when testosterone triggers the development of male genitalia.²⁶⁶ In that circumstance, the dissent explains, the discovery of underlying male physiological traits “would most certainly” cause medical professionals to “recategorize” the individual as male.²⁶⁷ Contrary to the dissent’s inference, the changing of a sex marker as more becomes known about a person’s body does not demonstrate that the person’s sex changes. It only demonstrates that the recognition of sex changes. The underlying attributes that define what sex is recognized remain constant.

Put simply, having an intersex condition is very different from having transgender status.²⁶⁸ Attempts to change the sex marker or physical attributes of an individual with an intersex condition are attempts to bring the body and recognition of sex into wholistic alignment with the underlying physical determinant of reproductive function.²⁶⁹ And while such a change reduces disharmony with gamete production and other biological traits determinative of reproductive function, aligning a person’s body with a gender identity increases disharmony.²⁷⁰ The implication is that under Title IX’s understanding of sex, changes to the body or sex marker of an intersex person means something very different than the same changes for a transgender individual. Perhaps, under the Adams dissent’s understanding of sex,²⁷¹ such changes might mean the same thing for both, but that is not the definition of sex that Title IX employs. Sex is simply “not fungible.”²⁷² Under Title IX, a biological male who identifies as a female and undergoes surgical and hormonal treatments to appear as female does not become a biological female.

B. What Title IX Says About “Sex”

All that said, “[t]he question isn’t just what ‘sex’ meant, but what Title [IX] says about it.”²⁷³ As explained above, courts have traditionally interpreted Title IX as employing a disparate treatment test focused on equal opportunity.²⁷⁴ And that is correct. The text and original understandings of Title IX demonstrate that Title IX mandates equal opportunity, not sex-blind treatment.

Turning to the text, Title IX states, “No person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under” a federally funded education program or activity.²⁷⁵ This language resembles Title VI’s, which simply states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”²⁷⁶ The resemblance is unsurprising considering that Title IX was modeled on Title VI.²⁷⁷ But unlike Title VI, which applies to “any” federally funded program or activity, Title IX applies only to federally funded education programs or activities.²⁷⁸ And while Title VI contains no exceptions, Title IX is riddled with them.²⁷⁹

Moreover, unlike Title VI, which bans any consideration of race,²⁸⁰ Title IX does not mandate sex blindness. Within the context of education programs and activities, Title IX prohibits exclusion, the denial of benefits, and discrimination on the basis of sex. “Discrimination” at the time of Title IX’s adoption referred to “improper distinctions,”²⁸¹ such as not treating people “alike according to the standards and rule of action prescribed.”²⁸² Put another way, it referred to treating a person “worse than others . . . similarly situated.”²⁸³ But as contemporaneously understood, “inherent differences” exist between the sexes; “[p]hysical differences between men and women . . . are enduring.”²⁸⁴ Consequently, as witnesses from the Department of Justice and the Civil Rights Commission in the 1970 hearings, members of Congress at the time of Title IX’s adoption, and HEW shortly thereafter all recognized, men and women are not similarly situated in all circumstances.²⁸⁵

In promulgating regulations to implement Title IX, the Department expressly acknowledged physiological differences between the male and female sexes. For example, the Department’s justification for not allowing schools to use “a single standard of measuring skill or progress in physical education classes . . . [if doing so] has an adverse effect on members of one sex” was that “if progress is measured by determining whether an individual can perform twenty-five push-ups, the standard may be virtually out-of-reach for many more women than men because of the difference in strength between average persons of each sex.”

Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026, 30178 (May 19, 2020) (quoting Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving or Benefiting from Federal Financial Assistance , 40 Fed. Reg. at 24132). In those circumstances, Title IX’s plain language permits differentiating between the sexes so long as neither is denied equal access to an education program, activity, or benefit.

This perhaps explains why Title IX lacked an exemption for bona fide distinctions between the sexes.²⁸⁶ An explicit exemption was unnecessary. And it also explains why, despite Title IX’s lack of an express exemption for athletics, Congress permitted the 1975 HEW regulations to take effect—and then in 1988 expressly reaffirmed without qualification that the executive branch’s understanding of Title IX was correct.²⁸⁷ As Congress’s approval of both those rules and the later 1979 interpretation illustrates, under Title IX, the physical differences between the sexes may be considered as long as each sex is not denied equal educational opportunities.²⁸⁸ In sum, Title IX requires equal treatment, not identical treatment.

Of course, this all begs the question of what an “improper” distinction or “worse” treatment—discrimination—is in the context of education programs and activities. After all, Title IX doesn’t simply bar federal-funding recipients who maintain such programs from ever engaging in sex discrimination; on the contrary, it bars subjecting someone to such discrimination “under” those programs. Under the canon of noscitur a sociis—”it is known by its associates”—when terms are used “in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.”²⁸⁹ Title IX’s requirements collectively focus on access to education programs, activities, and benefits.²⁹⁰ Immediately before prohibiting subjecting a person to discrimination, Title IX prohibits both exclusion from and denial of benefits.²⁹¹ And Title IX prohibits specifically subjecting a person to discrimination “under” a federally funded education program or activity.²⁹² In sum, looking to the associates of “discrimination,” “discrimination” cannot refer to mere differential treatment. Instead, it refers to disparate treatment that denies a person equal educational opportunities because that person is either male or female.

IV. (Mis)Applying Bostock to Title IX

Despite Title IX’s unique structure and operation, courts disagree on whether Title VII’s principles regarding sex discrimination in the employment context apply under Title IX. Some courts of appeals look to Title VII as an informative analogue for defining Title IX standards.²⁹³ This reliance appears to arise from the Supreme Court’s reference to Title VII standards when interpreting Title IX in the sexual harassment context even though the Court did not explicitly hold or state that Title VII standards apply.²⁹⁴ That said, the Supreme Court has recognized that Title VII and Title IX are not the same in all respects.²⁹⁵ Other courts of appeals, while acknowledging that some Title VII standards might apply in the Title IX context, assert that Title VII principles do not always apply. For instance, the Court of Appeals for the Fifth Circuit has treated Title VII’s and Title IX’s employment principles the same but declined to otherwise import Title VII standards into the Title IX context.²⁹⁶ The Court of Appeals for the Sixth Circuit also affirmed that Title VII principles do not “automatically apply.”²⁹⁷ And the Courts of Appeals for the First and Ninth Circuits both have observed that a different analysis is required in athletics than in employment.²⁹⁸

Declining to apply Title VII’s standards when interpreting Title IX makes sense. The statutory schemes are fundamentally different. Title VII states in part, “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”²⁹⁹ Unlike Title VII, which looks at the grounds for an employment decision, Title IX looks at the effect of treating a person differently on the basis of that person’s sex. And while Title IX permits distinguishing between the sexes in education programs and activities, Title VII never permits consideration of sex in employment decisions. Although both prohibit sex discrimination, each does so in a unique manner.

Title VII and Title IX also differ in another way. Although no court appears to have resolved the issue directly, courts implicitly recognize that Title IX prohibits denying a person equal opportunity because the person has a particular sex.³⁰⁰ In contrast, the Court in Bostock concluded that Title VII liability is triggered if sex is considered even abstractly and without knowledge of a person’s exact sex.³⁰¹ If a person is treated differently for having transgender status, under Bostock, that treatment constitutes sex discrimination under Title VII. But it does not under Title IX because transgender status only explains the relationship between a person’s gender identity and sex (that they differ). It does not say what the person’s sex is. Unlike in the Title VII context under Bostock, where a person can discriminate against someone on the basis of sex without knowing the person’s exact sex, in the Title IX context, such discrimination is not possible.

Bostock’s reasoning and holding cannot be unmoored from Title VII and attached to Title IX. To do so would be to fundamentally change how Title IX operates. If Title VII’s standards, as understood by Bostock, were fully imported, Title IX would prohibit any differential treatment except where expressly permitted—an effect which clashes directly with the text and early understandings.³⁰² Indeed, the 1975 HEW regulations—which permit separating boys and girls into separate sports teams—would be upended, as they were adopted under only a congressional directive to issue rules concerning athletics and without explicit statutory exemptions for sex-based athletic programs. But as previously explained, Congress twice approved of those requirements—demonstrating that equal treatment, not sex blindness—is Title IX’s mandate. Applying Bostock to Title IX would change that.

Even the Grimm majority and Adams dissent did not go so far as to import Bostock wholesale into Title IX. They didn’t ask if sex was abstractly considered. Instead, they viewed the exclusion of Grimm and Adams from the bathroom each wanted to use as relevant to whether the schools violated Title IX. And both relied on Bostock’s but-for test solely to argue that sex was a but-for cause of the exclusion, and thus that the schools engaged in sex discrimination.

But therein lies the Grimm majority’s and Adams dissent’s error in relying upon Bostock. Not only did both fail to properly understand whether Grimm and Adams were similarly situated to students having a male sex, but they also imported a standard for when sex may never be considered into a circumstance in which no one disputed that it may be considered.³⁰³ After all, Grimm and Adams were asking to be treated the same as biological males—not to abolish separate bathrooms.³⁰⁴ And as the Adams majority points out, Title IX’s implementing regulations explicitly allow consideration of sex in the context of bathrooms.³⁰⁵

Even employing the but-for test as used in Bostock, however, to determine whether sex discrimination occurs when a school requires a student to use a restroom corresponding with the student’s sex, Adams remains correctly decided, and Grimm wrongly decided. When Title IX recognizes that sex is relevant for access to a physical space like a restroom, the question is whether the standard is applied equally to boys and girls—not whether sex is ever considered.³⁰⁶

In the transgender context, any request for a federal-funding recipient to treat a person consistent with that person’s gender identity assumes that Title IX permits differential treatment in that circumstance. After all, a person with a female gender identity would likely not want to be treated like a male. Treating a person consistent with a gender identity of “female” means to treat that person as that person believes a female should be treated—such as referring to that person by female rather than male pronouns.³⁰⁷ If a request for such treatment arises in the Title IX context, the request is an implicit assumption that Title IX permits such differential treatment. After all, if Title IX did not permit such treatment, the past five decades of teachers using different pronouns in accord with English grammar to refer to male and female students was illegal.

To set up the but-for test as the Court used it in Bostock, imagine that two students are similar in every respect except their sexes. One is a biological male who identifies as a female (like Whitaker, Grimm, and Adams), the other is a biological female who identifies as a female. Again, Title IX concerns itself with whether the person experienced discrimination on the basis of sex as understood when Title IX was adopted—not on the basis of sex and gender as understood today. And even Bostock set up the test under Title VII by comparing two individuals with different sexes. Unlike in Bostock, where one suffers an adverse employment action and the other does not, here, both are given access to a restroom corresponding with their respective biological sexes (and maybe also are given access to unisex bathrooms). No matter the sex, the rule applies the same.

As an additional matter, Bostock and Adams reveal why Whitaker’s sex-stereotype theory also fails. Neither Bostock nor Price Waterhouse made sex stereotypes anything more than evidence of disparate treatment. Indeed, Bostock focused on whether discrimination on the basis of a given trait involved consideration of sex.³⁰⁸ And Price Waterhouse emphasized that a stereotype is a view that certain traits should or should not exist in conjunction with a given sex. Treating “sex” as a stereotype inverts the analysis.³⁰⁹ After all, the purpose of examining acts based on stereotypes is to determine whether the act was really based on sex—not whether discrimination on the basis of sex veils discrimination on the basis of something else. Contrary to what Whitaker held, doing what Title IX explicitly says is permitted—separating private facilities on the basis of sex—is far from acting on stereotypes. The separation is based on sex itself without regard to any other traits, and it treats each sex equally by imposing the same standard on both sexes.

V. Title IX, the Affordable Care Act, and Federally Funded Medical Programs

A. Title IX’s Incorporation into Section 1557 of the Affordable Care Act and Subsequent Interpretations

In 2010, Congress passed the Patient Protection and Affordable Care Act (“Affordable Care Act” or “ACA”), which extended Title IX’s requirements to cover federally funded medical programs.³¹⁰ Section 1557 of the Act prohibits discrimination “on the ground prohibited under” several federal statutes, including Title IX, in “any health program or activity.”³¹¹ The ACA further incorporated Title IX’s nondiscrimination requirements by providing “[t]he enforcement mechanisms provided for and available under . . . title IX” for addressing violations of Section 1557.³¹² Section 1557 also delegated authority to the Secretary of Health and Human Services (“HHS”) to create implementing regulations.³¹³

Each of HHS’s attempts to interpret Section 1557 in the transgender context were struck down, however.³¹⁴ In 2016, HHS issued a series of rules (“2016 Rules”) explaining Section 1557’s nondiscrimination requirement. The rules restated that the ACA prohibits discrimination “on the basis of . . . sex,” among other classifications.³¹⁵ The rules then explained that “on the basis of sex” includes “on the basis of . . . sex stereotyping[ ] or gender identity.”³¹⁶ HHS defined “sex stereotyping” as “stereotypical notions of gender, including expectations of how any individual represents or communicates gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics.”³¹⁷ And it defined “gender identity” as “an individual’s internal sense of gender, which may be different from that individual’s sex assigned at birth.”³¹⁸ HHS argued that its reading of Title IX was consistent with existing nondiscrimination law as well as “agencies’ and courts’ interpretations that discrimination on the basis of sex includes discrimination on the basis of gender identity.”³¹⁹

This interpretation was enjoined in December 2016.³²⁰ In June 2019, HHS gave notice that it was withdrawing the 2016 Rules’ “novel definition of ‘sex’” to make the regulation “more consistent” with other agencies’ Title IX regulations.³²¹ And a year later, HHS issued revised rules (“2020 Rules”).³²² Unlike the 2016 Rules, the 2020 Rules did not define “sex” and instead merely referenced Title IX.³²³ The preamble went further, declaring that the withdrawal was based on a different reading of Title IX.³²⁴ It emphasized that “sex” should be understood to refer to a “biological binary of male and female”; that Title IX adopted this understanding; that distinctions based on sex—a biological binary—are permissible and sometimes necessary; and that no agency had previously accepted the 2016 Rules’ understanding of sex and gender identity.³²⁵ Recognizing pending litigation and that the Supreme Court had not yet interpreted “sex” in Title VII, HHS noted that its elimination of the definition of “sex” “would not preclude application of” judicial construction.³²⁶ The 2020 Rules, like the prior 2016 Rules, were subsequently enjoined in legal challenges.³²⁷

HHS reversed its stance yet again in May 2021.³²⁸ In its “Notification of Interpretation and Enforcement” (“2021 Notification”), HHS stated its intent to apply Bostock v. Clayton County to Section 1557.³²⁹ HHS would read Section 1557 to prohibit discrimination “on the basis of gender identity.”³³⁰ This interpretation was struck down, too.³³¹ But in July 2023, again citing Bostock, HHS issued a notice of proposed rulemaking which would interpret “13 HHS authorities that prohibit discrimination on the basis of sex”—including Section 1557—to also prohibit discrimination on the basis of gender identity.³³²

B. Applying the Original Understanding of Title IX to Section 1557

Section 1557 uses almost identical language as Title IX, stating that “an individual shall not, on the ground prohibited under . . . title IX . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity.”³³³ HHS’s 2020 Rules correctly understood that by incorporating Title IX, Section 1557 incorporated the original understanding of “sex” in Title IX. Indeed, as explained above, Bostock does not compel reading “sex” in Title IX to mean anything different than what it originally meant. HHS’s attempts to rely on Bostock to add gender identity to the traits protected by Section 1557 is thus unfounded.

But more than that, Section 1557 incorporated what Title IX said about sex.³³⁴ Consequently, Section 1557 mandates equal treatment, not sex blindness or identical treatment. Indeed, if it did require sex blindness, the statute would ignore the numerous circumstances when medical treatment should account for whether a person is male or female.³³⁵ And just like under Title IX, if no disparate treatment occurs on the basis of sex, no discrimination occurs. After all, because Section 1557 incorporates the standard from Title IX’s statutory language, it only prohibits disparate treatment, not disparate impact.

To illustrate the effect of this understanding of Section 1557, consider an insurance provider that offers coverage for mastectomies. With an advance apology for the candor necessary for the analysis, insurance coverage for mastectomies provides a unique test case because both men and women can undergo the procedure.³³⁶ And unlike in Adams, where an explicit carve-out permitted separate bathrooms on the basis of sex, here, no carve-out exists for mastectomies. Returning to the hypothetical, one mastectomy the insurance provider covers is for gynecomastia, a condition where a biological male develops excess breast tissue.³³⁷ But it refuses coverage if the purpose of the surgery is to make a biological female appear physically like a male, and the breast tissue is otherwise physically healthy and naturally developing (or has naturally developed). These two surgeries are not identical—one is to remove tissue that developed because of an abnormality, the other to remove tissue that developed naturally but is now undesirable because of how the biological female identifies.³³⁸ Even if the biological male wants the breast tissue removed because of psychological discomfort, his discomfort arises from fact that the male body does not naturally develop this excess tissue.³³⁹ In contrast, a woman who now identifies as male—or something else—and wants the tissue removed no longer desires to have naturally developed female breasts. The denial of coverage is rooted in whether the breast tissue developed in the course of normal biological development and is physically healthy. Coverage depends solely on the reason for the surgery.

At least one court, however, has concluded that a denial of coverage for surgeries to make a person’s physical traits align with that person’s gender identity violates Section 1557.³⁴⁰ Applying Bostock, it reasoned that Section 1557 prohibits sex discrimination based on transgender status.³⁴¹ Moreover, the court reasoned, considering that a person has gender dysphoria requires referring to sex.³⁴² And a person who has gender dysphoria “cannot” but identify as transgender.³⁴³ Thus, the court held, the denial of coverage is on the basis of transgender status and is unlawful sex discrimination under Section 1557.³⁴⁴

That is incorrect, as well as confusing. As explained above, Bostock cannot be applied to Title IX. And so it cannot be applied to Section 1557 either. Even if Bostock were applied, the insurance provider in the hypothetical would not violate Section 1557. Two things are in play—sex and the nature of the surgery. And a male who has abnormally enlarged breasts, identifies as a male, and seeks surgical removal of his excess breast tissue and a woman who has naturally developed breasts, identifies as a male, and seeks surgical removal of her breast tissue are dissimilar in three ways: their sexes, the conditions of their breasts (natural versus abnormal development), and their reasons for seeking a mastectomy. For that reason, the Bostock framework is inapplicable here.

Even if the hypothetical is reframed and squeezed into Bostock’s framework, the outcome remains the same. Imagine that the provider provides coverage for all surgeries except for what it deems as “transition surgeries”—surgeries that alter a person’s physical traits to align with that person’s gender identity. A biological man wants a transition surgery to appear as a woman, and a biological woman wants a transition surgery to appear as a man. The surgeries for each would be different—after all, the biological man wants to look like a woman while the biological woman wants to look like a man. Each seeks to remove or add different organs and body parts. And so there are still three differences in the comparison analysis: (1) the purpose of the surgery, (2) the type of surgery involved, and (3) the person’s sex. But assuming for the sake of argument that the reason for and nature of the surgery are classified the same (alignment of one’s physical traits with one’s gender identity), coverage is denied regardless of sex. The denial turns on the reason for the procedure, not the person’s sex. Because both sexes are denied coverage, no sex discrimination occurs under Section 1557—even if Bostock’s but-for test is applied. ³⁴⁵

It could be argued that the real basis for the denial of coverage is the view that a person’s physical traits must correspond with a person’s sex. And so, the argument might conclude, the insurance provider is impermissibly denying coverage based on sex. Again, however, Title IX is concerned with equal opportunity. Unlike Title VII, Title IX does not forbid ever accounting for a person’s sex. When a rule is applied equally to the sexes, no violation of Title IX occurs—even if the rule involves consideration of a person’s sex. That’s why, after all, the 1975 HEW sports regulations and 1979 interpretation were acceptable under Title IX without a statutory exemption to Title IX’s nondiscrimination requirement. Here, if the insurance provider offers coverage unless the treatment or surgery reduces the alignment of the person’s body with that person’s sex, the rule applies regardless of whether a person has a male or female sex. To be sure, sex is not entirely out of the picture. But, again, the test under Title IX and thus under Section 1557 is not whether sex was considered at all. Under Bostock’s but-for test, no sex discrimination has occured.

In sum, Section 1557 permits treating a person as a male or female based on that person’s biological sex. And it does not compel providing insurance coverage for medical treatments that reshape a person’s body away from alignment with that person’s sex and into conformity with how a person seeks to express a particular gender. Under that same reasoning, it does not require providing the actual surgeries or treatments either. An interpretation to the contrary—such as in HHS’s 2016 Rules, 2021 Notification, or 2023 proposed changes to its grants regulation—is without basis in law.

Conclusion

Title IX was adopted to ensure that women receive equal educational opportunities as men. It embodied the view that although women and men have immutable, biological differences, those differences should not disqualify a woman from pursuing her dreams. And it reflects the common understanding at the time of its adoption that a woman is a woman because of her sex, which is immutable. Consequently, equality based on gender identity is not the equality that Title IX promises or was created to deliver. Title IX forbids only discrimination based on sex, not discrimination based on gender identity or transgender status. Treating a person as male or female based on that person’s sex does not run afoul of that protection.

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Equality on What Basis? Evaluating Title IX’s Requirements in the Transgender Context

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