On the Basis of Gender Identity? The Implications of Title IX’s Ambiguity on Transgender Rights in Soule v. Connecticut Association of Schools, Inc.

“No person in the United States shall, based on 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.”[1]

Such reads Title IX of the Education Amendments of 1972. While the statute makes no direct reference to sports, it is often credited with paving the way for generations of female athletes, forcing federally funded athletics programs to provide equal opportunities for females as they do for their male counterparts.

However, the rapid evolution of the concept of sex in contemporary society has made the federal civil rights law subject to vast interpretive differences. Ironically, nowhere is this more salient than in the very world where Title IX is seen as the great equalizer: the world of athletics.

 The plaintiffs, four cisgender female high school track athletes, filed a complaint and a separate federal lawsuit against their respective schools and the Connecticut High School Athletic Association. They accused said entities of engaging in discrimination against them under Title IX by allowing transgender female athletes, whom they consistently refer to as “biological males,” to compete in female athletics.[2] The plaintiffs claimed that the inclusion of transgender female athletes in women’s sporting competition precludes cisgender athletes, such as themselves, from winning events, attracting college coach attention, obtaining scholarships, and generally hinders progress in their athletic careers, thereby violating the rights Title IX bestows upon them. [3]

 Title IX complaints are investigated and enforced by the US Department of Education’s Office for Civil Rights (OCR). This complaint, straddling two OCRs under two very different administrations, has been subject to two significantly different interpretations of the term "sex." They initially filed the suit in February 2020, and in May 2020, the Trump administration’s Education Department issued a Letter of Impending Enforcement Action siding with the plaintiffs. The OCR deemed that the Connecticut Interscholastic Athletic Conference’s (CIAC) Transgender Participation Policy, which enables transgender athletes to compete for teams corresponding with their gender identity, results in the “loss of athletic benefits and opportunities” for cisgender female athletes, effectively infringing upon their Title IX rights.[4] The OCR subsequently threatened to withdraw federal funding from six Connecticut public high schools and the CIAC.[5]

However, by the end of the Trump presidency, the complaint had not been resolved, and on the day of his inauguration, President Biden signed an executive order pledging to ensure that government agencies, such as the OCR, apply federal sex-discrimination protections to gender identity.[6] His newly appointed education secretary, Miguel Cardona, publicly announced at his confirmation hearing that he stands by the right of transgender females to compete in girls’ sports and that excluding them from doing so would constitute a Title IX violation.

This case provides a striking example of the dangers posed by ambiguity in the law. Fundamentally, the question lies in whether the term “sex” in Title IX applies to biological sex or gender identity, as the chosen interpretation would completely change the law’s enforcement. The Trump Administration identified biological sex as the determining factor and thus viewed cisgender female athlete’s Title IX rights infringed upon by transgender female participation in sports given their status as biological males. Conversely, the Biden administration interprets gender identity as the determining factor, combatting the idea that precluding transgender women from competing as their identified gender would constitute an infringement on their Title IX rights. Ambiguity thus leaves the law open to interpretation, which generates inconsistency in the enforcement of the law. Such inconsistency threatens the rule of law itself. If, like Title IX, the government can enforce a single statute with diametrically opposite results, then there exists no means to ensure those tried under it are equal under the law, thus undermining a pillar upon which our judicial system is constructed.

The issues posed by ambiguity are further exacerbated in Title IX cases given the highly politicized and divisive nature of gender identity arguments. Title IX’s interpretation and enforcement, and the populations it protects, vary drastically based on the social and political views of those in power. Throughout the course of the Trump Administration, the former president passed numerous regulations aimed at rolling back transgender rights which included passing a transgender ban on the military and assigning transgender prisoners to facilities based on biological sex.[7] The freedom of interpretation granted by the vagueness of Title IX allowed him to use the statute as a further means to revoke transgender rights. Thus, ambiguity in laws concerning politicized issues enables administrations to enforce said laws to progress their political agenda and prioritize the rights and protections of favorable groups, going against the very concept of justice.

Thus, as necessitated by the significant threats its ambiguity poses, the term “sex” in Title IX urgently requires amendment through a clear and unequivocal definition that removes any ambiguity.

In terms of coming to a concrete decision on the appropriate definition, consistency should serve as the guiding principle. The term “sex” should be defined to follow the precedent established by its interpretation in other federal anti-discrimination statutes, that interpretation being gender identity. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on an “individual’s race, color, religion, sex, or national origin.”, containing the same ambiguity in “sex” as Title IX.[8] In the landmark case of Bostock V. Clayton County, three individuals sued their respective employers for firing them for being gay or for being transgender. The Supreme Court ruled that employers who fire an individual merely by virtue of their gay or transgender status violate Title VII, effectively establishing that the term “sex” in the statute applies to gender identity.[9] Just as consistent enforcement of a single statute is of utmost importance, so is consistency in federal legislation overall. If Title VII is enforced based on the gender identity interpretation of sex, so should Title IX.

Therefore, Title VII rulings establish the gender identity interpretation of “sex” as the precedent by which we should interpret other federal anti-discriminatory statutes, including Title IX. Despite the fact that the Biden administration’s actions thus far are firmly aligned with said gender identity interpretation, the language in Title IX should be explicitly amended to reflect this. Only by removing any and all ambiguity is it possible to prevent future administrations from interpreting the statute to favor their political views, ensuring the law consistently protects those it means to protect. The finish line is near, but this is the final hurdle we must leap.

[1] https://en.wikipedia.org/wiki/Title_IX

[2] “Soule v. Connecticut Association of Schools, Inc. | Civil Rights Litigation Clearinghouse.”

[3] Ibid.

[4] Blanchard and U.S. Department of Education, Office for Civil Rights (OCR), “Revised Letter of Impending Enforcement Action,” May 15, 2020.

[5] Broadwater and Green, “DeVos Vows to Withhold Desegregation Aid to Schools Over Transgender Athletes.”

[6] “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”

[7] Fadulu and Flanagan, “Trump’s Rollback of Transgender Rights Extends Through Entire Government.”

[8] “Title VII of the Civil Rights Act of 1964 (Title VII) | Practical Law.”

[9] “17-1618 Bostock v. Clayton County (06/15/2020).”