A Collision Course of Its Own Making Awaits the Supreme Court on What Words Mean Under Title IX

December 19, 2022

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On December 16, a 3-judge panel of the US Court of Appeals for the Second Circuit issued a ruling in Soule v. CIAC. That decision affirms the lower court’s ruling that the original complaint must be dismissed. Some readers may recall that this is a case in which four female athletes (then high school students) sued their state’s athletic association in 2020 because of the association’s policy of allowing so-called “female athletes who are transgender”* to compete on the girls’ track team. They argued that the association’s policy violates Title IX - a federal law that prohibits discrimination on basis of sex in the educational arena.

*In case you find this language confusing, what this panel of the Second Circuit means by “female athletes who are transgender” is the category of human beings who are, and always have been, popularly known as boys.

The ruling is a terrible outcome for female athletes because this panel of the Second Circuit is of the view that some boys are girls and thinks that boys should be permitted to compete in girls’ sports. However, it is also in conflict with several other recent federal court decisions, most notably Neese v. Beccara, that draw distinctions between boys and girls, women and men, and sex and gender, including for Title IX purposes.

The US Supreme Court created this particular legal monster in 2020 when it issued its ruling in Bostock v. Clayton County. The chickens will soon come home to roost and at some point the Court is going to have to reckon with the damage wrought in Bostock’s aftermath, at least as pertains to Title IX.