Is Title IX Kaput? Or Was it Always Incomprehensible?

Transgender athletes in Connecticut and their advocates secured a victory yesterday when an appeals court ruled that the Connecticut Interscholastic Athletic Conference (CIAC) can advance its plan to allow males who identify as transgender girls to compete on female sports teams. (See Transgender athletes score legal victory in Connecticut case.)

Bloomfield High School athletes Terry Miller, second from left, and Andraya Yearwood, far left, compete in the 55-meter dash at the Connecticut girls Class S indoor track meet in New Haven, February 2019. (AP Photo)

A three-judge panel of the 2nd US Circuit Court of Appeals affirmed that discrimination against transgender students violates Title IX. Passed in 1972, Title IX prohibits educational institutions receiving federal funding from discriminating on the basis of sex.

“Today’s ruling is a critical victory for fairness, equality, and inclusion,” said Joshua Block, a senior staff attorney with the American Civil Liberties Union (ACLU) who represented the CIAC, five Connecticut school boards, and two former athletes in the case. “This critical victory strikes at the heart of political attacks against transgender youth while helping ensure every young person has the right to play.”

How is this not it for Title IX? If the court interprets the law to mean that it prevents educational institutions that receive federal funding from discriminating based on sex, and therefore males can compete in female sports, then how have we allowed sex-segregated sports all these years? How does this ruling not renders the law incomprehensible? Or effectively nullify it?

Surely this is not what the framers of title IX intended. Wasn’t the law designed to protect girls and women’s rights as girls and women’s right were understood when the law was written, i.e., the rights of human females? Sports are not segregated on the basis of gender identity (a new and problematic construct) but on the basis of genotype, which enjoys the confidence of biological reality.

So let’s reconsider. Title IX bans sex discrimination in higher education. The law states that colleges cannot exclude females from any school activity, including sports. Schools that only offer male teams are therefore out of compliance. So let’s eliminate male-only teams and try out everybody regardless of sex. Those who make the team make the team. Those who don’t don’t. That way, everybody is treated equally and only the best athletes participate.

Let’s make it about the individual. Like we do with race. We don’t have white-only sports teams (anymore). That would be racist. So why do we have male-only teams? Why didn’t Title IX address the obvious problem that sex-exclusive sports teams discriminates on the basis of sex when the law was drafted? Why isn’t that sexism? As civil rights law did on the basis of race, let’s require all sports teams to try out females.

It seems there’s a hidden assumption in all of this. I can’t quite put my finger on it. Sex is only a social construct, right? But I’m not a biologist.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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