In the words of the U.S. Department of Education, “The Department of Education is committed to expanding and protecting opportunities for students to learn. Title IX of the Higher Education Act promises equal access to education for all students and it protects them against discrimination on the basis of sex.
Title IX was enacted to ensure: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”[1]
“On March 26, 2021, the Principal Deputy Assistant Attorney General for the Civil Rights Division issued a memorandum to federal civil rights offices and general counsels addressing the application of Bostock[2] to Title IX, determining that Title IX’s prohibition on discrimination “on the basis of sex” includes discrimination on the basis of gender identity and sexual orientation. See Letter from Pamela S. Karlan, Principal Deputy Assistant Attorney General for the Civil Rights Division, to Federal Civil Rights Directors and General Counsels (Mar. 26, 2021).
On June 22, 2021, the U.S. Department of Education issued a notice of interpretation clarifying that “[c]onsistent with the Supreme Court’s ruling and analysis in Bostock, the Department [of Education] interprets Title IX’s prohibition on discrimination ‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity.” Enforcement of Title IX of the Education Amendments of 1972. With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32,637 (June 22, 2021”[3]
Don’t get me wrong, I’m all for equal access to education (including sports) my question is simply if we are to reach the true goals of gender equity, why do we need a law outlining what we can and can’t do? Why not simply say, a college or university receiving federal funds can only have one team in each sport and all interested players must be included on the roster?
That way everyone gets to play and get their participation trophy based on how well they do against everyone else, sex and gender choices become irrelevant. Of course, there are those "Deplorables" who believe women should participate equally against their own sex, and men should participate against their own sex, but clearly, the courts and our Federal Government feel this is an outdated concept.
Let’s take the current controversy over Lia Thomas, who previously identified as a male swimmer, but now identifies as a female. (Insert preferred pronoun here) began swimming and competing early in her life and was, at one time ranked 6th in Texas. After arriving at Penn State he began his transition and choice for a new identity. If Penn State had a single swim team, competing in non-gender specific races there would be no issue. But like all things nowadays conservatives take one side and liberals take the other.
My Governor, Ron DeSantis, has declared “for Florida” we will only recognize the second-place winner of the Woman’s 500-meter freestyle as the National Champion, while NBC sports has celebrated this momentous (?) moment in women’s sports as a giant step forward for the rights of the transgendered.
Of course, we could separate sports and education as some would want by going back to colleges that only admitted certain races, or have courses that only were open to certain sexes, but I think we all agree that would be a giant step back. Rather than have all these financially strapped colleges and universities who are barely able to get by with their billion-dollar endowments, why don’t we let them cut the number of athletic teams in half or more by only fielding one team where the fastest is on top and the lowest on the bottom? That way sex and gender are no longer a concern and all get to compete equally. After all, isn’t that what inclusion and equity are all about?
[2] Bostock was actually a case regarding Title VII of the 1964 Civil Rights act where the court held in a 6-3 vote an employee could not be fired for being gay or transgendered. DOJ has issued its opinion based on what it views as an applicable cross-linkage.
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