Commentary

Supreme Court Should Look to Transgender Sports Case in Harris v. EEOC

By Doreen Denny | April 21, 2020 | 2:41pm EDT
Pictured is the Supreme Court in Washington, D.C. (Photo credit: DANIEL SLIM/AFP via Getty Images)
Pictured is the Supreme Court in Washington, D.C. (Photo credit: DANIEL SLIM/AFP via Getty Images)

The Supreme Court announced it will resume oral arguments by teleconference in May. Several high-profile cases are being decided and opinions in these cases are sure to break through the latest news of the coronavirus pandemic.

Among them is Harris Funeral Homes v. EEOC, arguing the definition of sex in federal civil rights law in the context of employment. If the Court rules sex under Title VII includes “gender identity,” it would effectively rewrite federal law and invalidate policies and practices which treat men as male and women as female.

The Justices would do well to consider DOJ’s recent conclusions about the impact of gender identity-based claims on women in a Connecticut sports case in their deliberations in Harris.

Late last month, Attorney General William Barr signed a Statement of Interest in the federal case about the meaning of sex and equal opportunities in women’s sports. Three Connecticut high school female track athletes have been forced under state athletic association policy to compete against male runners identifying as girls. 

Connecticut officials have rejected the concerns of female athletes, claiming federal law compels them to allow students to compete according to the gender with which they identify. Racing against males with built-in physical advantage, the female plaintiffs have lost opportunities to excel in their sport, including state and regional titles.   

But, in a 13-page statement, the Department of Justice (DOJ) flatly rejects the Connecticut Interscholastic Athletic Conference (CIAC) claim that Title IX requires classifying transgender students according to their perceived gender, not their biological sex: 

“Title IX and its implementing regulations prohibit discrimination solely 'on the basis of sex,' not on the basis of transgender status, and therefore neither require nor authorize CIAC's transgender policy. To the contrary, CIAC's construction of Title IX as requiring the participation of students on athletic teams that reflect their gender identity would turn the statute on its head.”

Barr’s statement offers multiple reasons why dismissing “on the basis of sex” as binary and immutable would be fallacy and should move us a step closer to protecting an equal playing field for every female student athlete in America:

  • Physiological differences between the sexes matter in protecting equal opportunity.   

“CIAC deprives those women of the single-sex athletic competitions that are one of the marquee accomplishments of Title IX.… Requiring students to participate on the athletic team associated with their biological sex accounts for the real physiological differences between the sexes in a manner that burdens each sex equally…."

  • Sex cannot coexist with “gender identity” when protecting women’s rights to privacy, safety, and equal opportunity.   

“If the law were otherwise, countless sex-specific policies would be per se unlawful…. Indeed, many of Title IX’s implementing regulations—which permit sex-specific athletic teams, bathrooms, locker rooms, or shower facilities—would be in jeopardy if CIAC’s view of sex discrimination were to carry the day.”

  • Precedent proves why binary biological sex distinctions are necessary in society.  

“Nothing in Title IX or Supreme Court precedent requires such radical upheaval. To the contrary, the Supreme Court has recognized that sex-based classifications sometimes are permissible because certain ‘differences between men and women’ are ‘enduring.’ …”

With these arguments, DOJ has spoken forcefully for the rights of women in the raging cultural debate being ignored by political correctness. Title IX’s very purpose, mirroring any federal law prohibiting sex discrimination, is to protect women. But activism promoting transgender rights has become a new kind of battle threatening female status. Very recently, Idaho became the first state to pass and sign into law a bill banning male athletes identifying as girls from competing in women’s sports. Getting that bill across the finish line, even in a conservative state like Idaho, was not easy.  

How the Supreme Court rules in Harris could have ramifications well beyond the facts of the case. Female athletes, vulnerable women in violence shelters and prisons, and young girls in bathrooms and locker rooms face new and growing risks never conceived in history. We hope every Supreme Court justice, male and female, is listening. 

Doreen Denny is Vice President of Government Relations for Concerned Women for America Legislative Action Committee

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