Kobritz: The case that may undermine Title IX
BEYOND THE LINES
Title IX, which was enacted by Congress in 1972, prohibits sex discrimination in education. While the statute’s specific intent was to provide equal opportunities in STEM education, courts expanded the definition of education to include sports. That interpretation led to the requirement that schools provide equal athletic opportunities for male and female athletes.
Almost 50 years after the passage of Title IX, a case before the U.S. Supreme Court may inadvertently undermine the significant progress women have made in athletics.
After working for six years as a funeral director for R.G. & G.R. Harris Funeral Homes, Anthony Stephens informed the company’s owner in 2013 that when he returned from vacation he wanted to be known as “Aimee.” Despite positive employment reviews, Stephens was fired two weeks later. Assisted by the ACLU, she sued, alleging her employer had violated Title VII.
Title VII, a statute passed in 1964, prohibits discrimination in employment based on sex. It bans employers from treating an individual less favorably than similarly situated individuals of the opposite biological sex. However, the statute said nothing of discrimination because of an individual’s gender identity or transgender status.
The lower court said Stephens was not discriminated against based on “sex,” and ruled against her. On appeal, the U.S. Court of Appeals for the Sixth Circuit reversed. The Supreme Court agreed to hear the case, along with a companion case involving a deceased skydiving instructor who was also fired for being transgender. A number of organizations committed to equal opportunities for women are concerned that a decision to affirm the Court of Appeals interpretation of sex under Title VII could potentially undermine Title IX.
The facts of the Stephens case may not suggest a connection to Title IX, but lawmakers used the same language to define sex in Title VII and Title IX. Because courts generally interpret similar language in both statutes the same way, a ruling that transgender status and/or gender identity applies to the employment statute (Title VII) is likely to apply to the education statute (Title IX) as well. That could lead to lawsuits by transgender males claiming discrimination if they aren’t allowed to participate on women’s athletic teams. Therefore, supporters of Title IX believe a ruling for Stephens could potentially undermine the legal justification for maintaining any sex-specific athletic teams.
Individuals born male are, at least on average, physiologically stronger, bigger and faster than those born female. If transgender athletes are allowed to play on women’s teams, it’s not a stretch to believe it could lead to a reduction in the number of opportunities for biological women and girls to participate in competitive sports. Taken to the extreme, some women’s organizations envision the possibility of a world without women-specific sports.
Supporters of Stephens aren’t thinking that far ahead. Their goal is simply to convince the Supreme Court to affirm the Court of Appeals’ interpretation of Title VII prohibiting discrimination based on transgender status; even if such a determination may have the unintended consequences of undermining the decades-long progress women have made under Title IX.
Jordan Kobritz is a non-practicing attorney and CPA, former Minor League Baseball team owner and current investor in MiLB teams. He is a professor in the Sport Management Department at SUNY Cortland and maintains the blog, sportsbeyondthelines.com. The opinions contained in this column are the author’s. Kobritz can be reached by email at email@example.com.