We take for granted that most sports are all female or all male. On average, men are stronger, faster, and more powerful than women. Segregating sports by sex has helped women come closer to equality and parity in athletics. But a recent Supreme Court opinion brings the legality sex-segregated sports into question.
In Bostock v. Clayton County, the Supreme Court tackled Title VII of the Civil Rights Act of 1964, which prohibits discrimination "because of sex." See 590 U.S. ___ (2020) (slip op.). In the Bostock case, the Supreme Court ruled that Title VII also prohibits discrimination against transgender employees. Writing for the majority, Justice Neil Gorsuch noted that Title VII only refers to biological sex, not gender identity or transgender status. But the court held that discrimination based on gender identity is a type of "sex discrimination" prohibited by Title VII because one can only determine a person's status as transgender in relation to that person's biological sex at birth.
The Bostock decision is a landmark victory for transgender people and the LGBTQ+ community. But some critics worry that extension of the ruling will upset hard-won equality for women and girls in the worlds of high school and college athletics.
Will Bostock apply to women's athletics?
Title IX is a federal civil rights law that prohibits sex discrimination in federally funded K-12 schools and colleges and universities. It became law as part of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §1681 et seq. It states:
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 education program or activity receiving Federal financial assistance.
In part, Title IX prohibits discrimination in hiring and admissions, as well as athletics in federally funded schools, giving female athletes the right to equal opportunities in sports. According to the World Economic Forum, girls' participation in high school sports increased by 990% since 1972. Women's participation in college sports increased by 545%. Since its passage in 1972, Title IX has dramatically increased women's and girls' participation in sports in K-12 schools and colleges.
Writing for The Hill, opinion contributor Jennifer C. Braceras argues that the Bostock case will extend to Title IX cases. No court has ever ruled that having sex-segregated sporting activities is discriminatory under Title IX. However, the author worries that the Supreme Court's recent ruling will tie school administrators' hands if a male student fails to make the men's team and then tries out for the women's team, performing well.
Braceras argues that the Bostock ruling now means that the coach can only deny a male student a spot on the team by considering his sex. She states, "[…] just as an employer cannot fire a transgender employee without considering that employee's biological sex, neither can a school separate the sexes in athletic competition without considering the sex of the participants." While it may be a leap from a transgender employee's discriminatory firing to a cis man trying out for a women's soccer team, the consequences of the Bostock decision will undoubtedly change how we define sex discrimination, gender, and gender identity for years to come.