OP-ED: Banning trans girls from sports is unconstitutional

Noah Feldman
Bloomberg Opinion (TNS)
The Bostock v. Clayton County decision, issued by the U.S. Supreme Court in June 2020, was authored by Justice Neil Gorsuch with the support of the court’s liberals and, crucially, Chief Justice John Roberts. (Kirk McKoy/Los Angeles Times/TNS)

Across the country, a series of laws are being proposed that would restrict transgender girls from participating in girls’ sports. The proposals are part of a concerted effort by a number of conservative organizations to turn transgender rights into a wedge political issue. The laws are cruel and alarming — and would almost certainly be found unconstitutional, even at a very conservative Supreme Court.

That’s because less than a year ago, the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII anti-discrimination law protects transgender employees from workplace discrimination. Under the logic of that precedent, the proposed restrictions on girls’ sports may well violate an analogous federal law, Title IX, that prohibits discrimination on the basis of sex in schools.

The Bostock decision, issued by the Supreme Court in June 2020, was authored by Justice Neil Gorsuch with the support of the court’s liberals and, crucially, Chief Justice John Roberts. Even now that Justice Ruth Bader Ginsburg has been replaced by Justice Amy Coney Barrett, Bostock won’t be overturned anytime soon.

More:Keefer bill would ban trans girls, women from competing in sports based on gender identity

More:A first: US Senate confirms transgender doctor for key post

That ruling hinged on language in Title VII prohibiting workplace discrimination “because of sex.” Gorsuch acknowledged that the authors of the law weren’t thinking about transphobic discrimination when they wrote the words. But that didn’t matter, according to Gorsuch’s theory of statutory interpretation, known as textualism. For a textualist, only the words matter. And in Gorsuch’s view, the words of a statute incorporate their own logical implications, regardless of whether the statute’s authors would have accepted that interpretation.

Building on this theory, Gorsuch reasoned that to discriminate against somebody because his or her gender differs from his or her biological sex at birth counts as discriminating “because of sex.” If Alexander is fired because he was born female and is now male, then that is discrimination because of sex because Alexander would not have been fired had he been born male. The reasoning is simple and formalistic — and extremely far-reaching.

Now consider Title IX, which says that “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 educational program or activity receiving Federal financial assistance.” Sounds quite similar to Title VII, no?

And, because schools receive federal funding, Title IX covers school sports just about everywhere in the U.S. Indeed, the broad reach of Title IX is often credited with the remarkable, and remarkably impressive, rise in girls’ and women’s sports since 1972. Title IX could not have had this broad effect if it did not apply to school sports throughout the country.

Under Gorsuch’s interpretation of Title VII, differential treatment of transgender people counts as discrimination because of sex. That same idea would seem to apply to Title IX. And Title IX is a federal law designed by Congress to preempt any state laws that contradict it; it’s the supreme law of the land.

To be sure, any states that pass these laws will try to get around Title IX. They will likely say, for example, that trans girls aren’t barred from competing in sports — they are simply barred competing in girls’ sports. Or they could argue that Title IX was written to protect girls’ sports, and that a literal reading would allow any boy to participate in girls’ sports, regardless of gender identification.

These arguments will not convince a true-believing textualist who is uninterested in a law’s intent. Moreover, Title IX is usually understood to allow girls to participate in boys’ sports where there is no girls’ equivalent, so the law shouldn’t be read to bar participation by either boys or transgender girls in girls’ sports.

The last fallback of the laws’ supporters would presumably be to argue that Title IX permits a separate but equal regime for school sports divided by sex — and always has. If such a regime is constitutional, they would suggest, then the states that administer it ought to have the authority to define who falls into the girls’ bucket and who into the boys’ bucket.

If that argument is taken seriously, it would require the courts to confront the weirdness of the double standard that allows differentiation based on sex or gender (as in single-gender bathrooms) but not race. Maybe it’s time for that confrontation — even if the consequences take us to unexplored places in constitutional thought.

— Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.