Title Seven Ate Nine? Extending Bostock's Meaning of "Sex" from Title VII to Title IX

Authors

Julia L. Shea

Document Type

Note

Abstract

(Excerpt)

When JayCee Cooper walked out onto the platform at a women’s powerlifting competition for the first time, “everything else fell away: her years-long internal struggle over her gender identity, her decision to leave men’s sports when she began transitioning, her doubts that she would ever feel safe if she returned to competitions.” Powerlifting was JayCee’s way of feeling empowered in her own life, but after signing up for more competitions, she was told she could no longer compete because of a discriminatory policy that barred transgender women. Transgender athletes play sports for the same reasons as anyone else, including improvements to physical and mental health. Yet, they face additional obstacles of hostility and exclusion that their cisgender counterparts have never dealt with. While discrimination happens in all areas of a transgender person’s life, there has been recent legal progress barring such discrimination in the workplace. In June 2020, the Supreme Court of the United States decided Bostock v. Clayton County, which broadened Title VII of the Civil Rights Act of 1964’s prohibition of employment discrimination on the basis of “sex” to include sexual orientation and gender identity. Thus, the Court broadened Title VII’s interpretation of the phrase “on the basis of . . . sex” to protect transgender individuals. However, the Court expressly stated that its decision was limited to employment discrimination and declined to address whether this definition of “sex” would apply to other areas, such as student-athletics.

This Note argues that Bostock’s interpretation of “sex” should be extended to Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in any education program receiving federal funding. Additionally, this Note sets forth the constitutionality of various exclusionary policies, under different levels of scrutiny, by balancing the inclusion of transgender student-athletes with the underlying purpose of Title IX.