9th Circuit Again Drops Ball on Title IX, Males in Women’s Sports
Sarah Parshall Perry /
Women and girls seeking equal opportunity in scholastic athletics have notched a few significant wins this year against the Department of Education over its massive rewrite of Title IX of the Education Amendments of 1972.
Title IX is the brief, 50-plus-year-old civil rights law that prevents sex discrimination in any publicly funded education program. The Biden-Harris administration, however, has expanded the meaning of “sex” in Title IX to include “gender identity or expression.” But based on a plain reading of the text of Title IX, and with an eye toward the congressional history of the law as geared toward ensuring women’s equality in education, the rewrite is more than a little illegal.
At least three federal appellate courts have agreed.
Not so, the U.S. Court of Appeals for the 9th Circuit, however. It brought that streak of victories to a halt recently when it determined that the state of Arizona’s Save Women’s Sports Act was both unconstitutional and a violation of Title IX.
This isn’t the first time that the 9th Circuit has botched its analysis on “gender identity.” And once again, its reasoning left court-watchers scratching their heads.
Last year, the 9th Circuit reached an identical conclusion in striking down Idaho’s women’s sports fairness law in Hecox v. Little. Legal scholars have called the court’s opinion in that case “full of deceptions and irrelevancies.”
Perhaps not surprisingly, that case is now pending on a petition for review at the U.S. Supreme Court.
In Doe v. Horne, the court followed its flawed reasoning in Hecox to affirm the trial court’s finding that two biological boys (referenced in the court’s opinion as “transgender girls”) were entitled to a preliminary injunction against the state of Arizona—something that prevented the state from enforcing its Save Women’s Sport Act.
While the underlying litigation proceeds, the court ruled that both boys must be allowed to play on girls’ sports teams at their respective Arizona schools.
So, how did the court reach such a hackneyed conclusion? Its twisted reasoning went something like this: It began with blind acceptance of the Left’s talking points on “gender identity” as something distinct from sex “assigned” at birth, including the fact that there is “a consensus among medical organizations that gender identity is innate and cannot be changed through psychological or medical treatments.”
That ignores the increasing body of clinical evidence that most prepubescent and pubescent children will—if left alone to experience normal pubertal development—grow out of any purported expression of a “transgender” identity.
The court continued that the state law, which separated scholastic sports teams by males, females, and coed or mixed teams, was discriminatory. That was so because the classifications based on biological sex discriminated against students who were biologically of one sex but expressed a different gender identity, by preventing them from playing on sports teams in accordance with that gender identity.
In the words of Judge Morgan Christen, an appointee of President Barack Obama, who wrote the opinion for the unanimous three-judge panel that included Judges Mary Margaret McKeown and David A. Ezra, appointees of Presidents Bill Clinton and Ronald Reagan, respectively: “[T]he ban turns entirely on a student’s transgender or cisgender status.”
Not so. The ban turns entirely on a student’s sex—regardless of whether that student’s sex is male or female.
The court’s opinion ignored one very glaring weakness in its own arguments: the U.S. Supreme Court has never held that “sex” and “transgender status” are one in the same.
Classifications based on sex are just that. And in Arizona’s case, whether the students were transgender “girls” or “boys” resulted in the same outcome: All students, regardless of gender identity, were required to compete on teams that matched their underlying biological sex.
The court’s opinion also clung to the fact that, in its view (and the view of the trial court):
[t]ransgender girls who receive puberty-blocking medication do not have an athletic advantage over other girls because they do not undergo male puberty and do not experience the physiological changes caused by the increased production of testosterone associated with male puberty.
However, medical evidence now indicates that regardless of the use of puberty blockers or cross-sex hormones, males begin to distinguish themselves athletically from their female counterparts around the age of 11.
Hormones have limited or no impact on wingspan, muscle mass, height, or bone density—all critical physiological advantages in competitive sports.
The court went on to rationalize that laws that discriminate based on “transgender status” are subject to heightened scrutiny under the equal protection clause of the Constitution.
That meant that the state of Arizona bore the burden of proving that its law served an important government objective, and that the law was substantially related to achieving the objective.
The appellate court wrote that the state had not met its burden. In the court’s view, the act had been adopted for the sole purpose of excluding “transgender girls” from playing on girls’ sports team. This was not, the court wrote, a law substantially related to achieving an “important government objective,” nor could the state bear the burden of demonstrating an “exceedingly persuasive justification” for what it viewed as a discriminatory classification.
Turning to the Title IX discrimination claims, the 9th Circuit panel was influenced mightily by the Department of Education’s expansive rewrite of Title IX to include “gender identity or expression” as commensurate with biological sex.
Christen wrote that the law “does not afford transgender women and girls equal athletic opportunities … [and] the record does not demonstrate that transgender females would displace cisgender females to a substantial extent if transgender females were allowed to play on female teams.”
In the end, the court determined that in addition to the foregoing, the “public interest” was served by preventing “the violation of a party’s [i.e., the transgender student’s] constitutional rights.”
Despite the court’s ongoing delirium about transgender discrimination, Arizona’s then-governor, Doug Ducey, when signing the women’s sports bill into law, noted perhaps the simplest and clearest aim of the legislation:
This legislation simply ensures that the girls and young women who have dedicated themselves to their sport do not miss out on hard-earned opportunities, including their titles, standings, and scholarships due to unfair competition.
This bill strikes the right balance of respecting all students while still acknowledging that there are inherent biological distinctions that merit separate categories to ensure fairness for all.
The simple, nondiscriminatory mission of the Save Women’s Sports Act, however, was utterly lost on the 9th Circuit.
Perhaps, in time, sanity will prevail at the U.S. Supreme Court.