The Education Exchange: Supreme Court United in Belief that Transgender Athlete Bans Do Not Violate Title IX

PAUL PETERSON, HOST:

This is the Education Exchange with Paul Peterson. I am the Director of the Program on Education Policy and Governance at Harvard University. Thank you for joining us. In a just-released court decision, the court found no constitutional violation when states ban students from participating in sex-specific sports. That is, if they participate in those sports and they don’t have a sex that’s consistent with the defined sport, a sex so defined at birth. A three-justice minority dissents on the grounds that such policies deny students who declare themselves of another gender are denied their constitutional right to equal educational opportunity. To discuss the latest chapter in this ongoing controversy over the constitutional rights of transgender students, I’m pleased to have Professor Shep Melnick with me on the Education Exchange. He is a professor of political science at Boston College, and he’s the author of The Crucible of Desegregation, The Uncertain Search for Education and Equality, an authoritative, up-to-date account of civil rights law and politics. So, thank you, Shep, for joining me on the Education Exchange.

SHEP MELNICK: I’m glad to be here.

PETERSON: So Shep, this is a complicated decision in some ways, but what exactly did the court decide?

MELNICK: The bottom line is the court said that if a state or a school determines that the assignment of students to single-sex sports will be on the basis of biology only, that is both constitutional and legal under Title IX, that they don’t need to assign students on the basis of gender identity. So, if there is a biological male who identifies as female, then states and schools can basically say that person has to play only for men’s team, not for women’s team. And I just want to emphasize that was both under the Constitution and under Title IX.

PETERSON: So, they make that both on the basis of the U.S. Constitution. I imagine it’s the Equal Protection Clause, isn’t it?

MELNICK: Right. And one thing that’s remarkable about the decision is that all nine members of the court, even the three liberals, agreed that the states that had this ban, which is Idaho and West Virginia before the court and their other states, did not violate Title IX. And under the Obama administration, the Biden administration, they had regulations indicating that those bans would violate Title IX, but all members of the court said Title IX allows schools to assign students to sports teams on the basis of biology chromosomes alone, not gender identity. And the only dissent, the three dissenters, raised a constitutional issue. And even then, they did not say that this policy violates the Constitution. They just said that the court should have looked into that question in greater detail.

PETERSON: Okay, so you’re emphasizing the extent to which the court was united. That in fact … How does that vary from the position that was taken by the Democratic candidate for president in the last election, Kamala Harris?

MELNICK: Yeah, it differs quite dramatically. The Biden administration was quite adamant about assigning students to sports teams on the basis of gender identity. They had … The Biden administration was about to issue guidelines saying that but waited until after the election. And then when they lost the election, they basically put the whole thing on hold. But the Democratic Party has been… fairly strongly committed to this understanding that you need to treat people on the basis of gender identity, even when there are segregated facilities for sports, for bathrooms, for locker rooms in the sort. Now, if I just add one other thing, what the court studiously avoided saying, and it said explicitly we’re not going to decide, is whether states and schools can assign on the basis of gender identity rather than biological sex. They left the states that option so far.

PETERSON: All right, but they’re saying there’s no constitutional requirement to do what the Biden administration had said, or was planning to say, was required by the Constitution in a regulation that they had prepared.

MELNICK: Absolutely. And the decision, I think, made a very strong argument for a more restrained understanding of the Equal Protection Clause. We can go into what the dissenters’ view was about the Equal Protection Clause, but it’s relatively convoluted. It’ll take a while to explain what that is.

PETERSON: Okay, well, let’s try that a little later on, but I’m just sort of… Thinking here for a minute that this is … you don’t find many instances where the liberal minority on the Supreme Court sort of departs from what is the expected party line. And this is an example of something honorable that you really have to say. They looked at the law and it wasn’t just politics for them.

MELNICK: That’s absolutely right. And there were legal arguments that were made on behalf of the transgender students. The dissenters said Title IX just does not support those arguments. And they might, I’m not sure they do, but they might support the argument on a constitutional basis. But I would say that one of the things, not only were they in agreement about the interpretation of Title IX, but I was startled to see that they never looked at any of the dear colleague letters, any of the guidelines that Department of Education has issued since 1975. They looked at regulations since 1975, ignored everything else, ignored the Trump administration’s interpretation, ignored the Biden and Obama administrations’ interpretation. And they basically said, we’re going to do this ourselves. And we don’t really trust the interpretations of the administrative agency.

PETERSON: Well, let’s put that to one side for a second and talk about the majority. This was a 6–3 decision, I believe. The majority were all the Republican or conservative members of the court, or some people would say the original intent members of the court. But Brett Kavanaugh wrote the decision, and he was a law clerk for Justice Kennedy, who had found a constitutional right to marriage between two people of the same sex. So has Kavanaugh departed from the grounds for thinking about the Constitution and gay rights? Is this a departure from the old Kennedy position?

MELNICK: I don’t think so necessarily. And I would point to Justice Gorsuch, who wrote the Bostock decision, saying that employers who discriminate against transgender applicants violate Title VII. And Gorsuch wrote an opinion saying, I continue to support that position, but this is different because here we’re dealing with sex-segregated facilities that are segregated by statute and no one thinks that’s unconstitutional. As a matter of fact, everyone agrees that it is necessary to have fairness for female athletes. that they don’t have to compete against men. So the context is significantly different. And Gorsuch … not Gorsuch, but rather Kavanaugh emphasized—and I thought this was a strategically good thing to do—that sports is also different because it’s zero sum. You have winners and losers. You have people who make the team and you have people that don’t make the team. And if a biological male competes with women, they’re going to have this great edge. And I point out that in the West Virginia case, the transgender student who brought the case won the state championship for the shot put. So, this was not…you know, it shows that there’s a great advantage of being born male and having testosterone for a number of years. So, I think he could emphasize the fact that this would be greatly unfair to women who would lose, who would not make the team, who would be discouraged from participating. So, he made something of a feminist argument for protecting women’s sports.

PETERSON: Well, there’s a distinction that’s being drawn here between race discrimination and discrimination on the basis of sex or gender. And, you know, in the race cases, the court has always said that you have to have strict scrutiny to make sure there’s no discrimination. But this gender discrimination, sex discrimination only requires intermediate scrutiny. So where does that distinction come from, and how important is it?

MELNICK: That was really the crux of the disagreement between the majority and the dissent on the constitutional issue. The problem that the court has faced in making this analogy between race and sex is that we often think that it’s quite rational to have separate facilities for men and women. I mean, we don’t have separate Black and white basketball teams. That would be unthinkable. It would be horrible. Separate but equal in race is abhorrent. But for sports, we think it’s only fair.

PETERSON: You can have Black and white … you can have male and female baseball teams, but you can’t have Black and white baseball teams anymore.

MELNICK: Right. So how do you adapt the strict scrutiny suspect classification to sex? And the court has done so by saying it’s semi-suspect. So we will apply, as you said, intermediate scrutiny. So, you don’t have to have a compelling state interest. All you need is an important state interest. And you don’t have to have an exact fit between the classification and the goal. You can have a reasonable classification. So the problem with all of that is so subjective. The advantage of strict scrutiny for race is very strong presumptions. For here, it’s wishy-washy. You know, it’s we’re going to decide every case on its individual basis. And so the dissenters said that because there is sex involved, we are going to require a much stronger determination of the importance of the state interest here and a much more exact fit between the people who are excluded and the purpose being…

PETERSON: In other words, shot puts are not the same thing as golfing.

MELNICK: Right. And not only do you have to figure out the activity, you have to look at the individual. Is this an individual who has been on puberty blockers for their entire life? Or like the guy from Idaho who just started puberty blockers when he was in college. So you have so many variables here that the dissenters thought should be determined on an individual basis. And the majority said because this semi-suspect classification doesn’t mean that we have to have a perfect fit and you have to determine everything on an individual basis. And this is well beyond the capacity of the courts to make these fine-grained decisions.

PETERSON: Well, yeah, you almost would think that if everything gets down to that, you should just leave it up to the states or the school districts to decide using their own good judgment.

MELNICK: And I think in some ways that’s what the court is doing. They could, of course, say it always has to be on the basis of biological sex, but I don’t think there’s any basis either in Title IX or in the Constitution for saying that there’s no state or school discretion. That strikes me as what the courts saying and the most reasonable position.

PETERSON: So then, what is the practical effect of this at the national level? Is it going to mean that there’s going to something happen in the states that allow transgender students to participate in female sports?

MELNICK: My guess is that this is going to give an impetus to those in blue states who want to ban transgender males from women’s teams. It’s going to give them impetus to say this policy makes no sense. The alternative policy is constitutional. It’s legal, therefore, we should preserve women’s sports for biological women. In some places, that I think will work. In other places, not. But I think that the trend is in that direction, especially, I’d say … The other big transgender issue, which I think is much more important than this, is on medical treatment. And in that area, I think that the medical evidence is trending fairly strongly against early transition. So I think that will be part of the momentum. But there’ll be some places that will continue to… uh say that this should be on the base of gender identity not biological sex and if if the school and the state is comfortable with that, it’s not gonna be the end of the republic or the end of education or the end of equality if a very small number of transgender students participate. If they win championships, then a lot of parents are going to be very upset. And I’ll just mention one other thing if you look at the tea leaves, which is the NCAA now has accepted the position that this should be done on the basis of biological sex. And the NCAA I think has a lot of clout on these things.

PETERSON: Well, that applies nationwide then. That’s not just talking about the states that want to do this. This is something that’s going to happen everywhere.

MELNICK: That’s right, because the NCAA sets the rules for all intercollegiate activities. Of course, it doesn’t affect what high schools do, but it does affect what state universities do.

PETERSON: Now, how about the U.S. Department of Education or the Civil Rights Division of the Justice Department? Are they going to take this decision and run with it and start demanding of the blue states … I think of the state of California or the state of Massachusetts, which is probably going to resist making any changes. But will they become under pressure from the federal government to do that?

MELNICK: I’m sure that the Department of Justice will put pressure on states, will threaten the suits. I think that they might be hesitant to actually pursue the suits in the same way that both in the Skrmetti case of a couple of terms ago, and in this case, there was a lot of people in the trans-rights community were saying, don’t bring this to the Supreme Court. As a matter of fact, the Idaho plaintiff when he saw it was going to the Supreme Court, tried to say, oh, this is moot, so I don’t want to participate anymore. They wanted to try to not get it to the Supreme Court. And I think, conversely, the Trump administration might be hesitant to bring this to the Supreme Court because I think that they would probably lose in the Supreme Court if they tried to mandate this everywhere. But, of course, the Trump administration often litigates things for their publicity value rather than for actually winning the case. So, we’ll see whether prudence or publicity dominates their decision.

PETERSON: Well, I sort of looked at this as another case of Mr. Dooley being right. He was the bartender who once said that the Supreme Court follows the election returns. So you agree with that? Is this going to be a popular decision?

MELNICK: Probably. It’s probably a little bit too complicated to get a lot of attention. But I think, as I said before, I think it will spur people who are opposed to having transgender students play on girls’ teams to say, we have the law behind us. You can’t claim this is unconstitutional. You can’t claim it’s a violation of Title IX. It has been endorsed by the Supreme Court. So it’s good law and good policy. So I think it will definitely give a boost to them.

PETERSON: Well, Thomas Edsall wrote in the New York Times just over … last Sunday or so, that a third of the members of the Socialist Democrats of America, that SDA party that’s doing pretty well in Democratic primaries, are actually not orthodox in their sexual identity. So gays, lesbians, transgender, they’re the core constituency of the progressive wing of the Democratic Party, it might be argued. Is this going to be a divisive issue within the Democratic Party?

MELNICK: I assume it probably will be, among many other divisive issues. We have a very active minority within my party, and they are… not particularly interested in what is popular. And if there’s an issue that is not popular, it is transgender rights. It helped to defeat Kamala Harris, but they seem to be not too concerned about that. But I will say one complicating figure here, which is that there is a big dispute within the gay and lesbian community about these issues. Because if you’re a feminist, including if you’re a lesbian, you don’t necessarily want these biological men competing against you in sports. And if you are a gay man who has gay pride, you can be a little concerned about the fact that some people, that if you… that people who are…there are a lot of people who are considering themselves to be trans, who really are gay. And they somehow think, in a way I don’t quite understand, that it’s more kind of publicly acceptable to be trans than to be gay. That strikes me … I don’t quite understand that. But there are many people within the gay and lesbian community who are very disturbed about these transgender rights claims.

PETERSON: Well, listen, Shep, this has been a great conversation, and you have illuminated the complexity of this decision in ways that I hadn’t quite anticipated. So thank you very much for joining me on the Education Exchange.

MELNICK: Well, I’m always happy to complicate things. Thanks for having me on.

PETERSON: Thanks, Shep. I’m Paul Peterson. This is the Education Exchange. Please join me for a new podcast released on the Education Next website every Monday at noon Eastern Time.