“The Court expressly declined to decide questions about how its interpretation … would affect other statutes,” the Office for Civil Rights letter said.
At issue in the Connecticut case is Title IX, a 1972 law prohibiting discrimination based on sex in education programs and activities. The Supreme Court’s June ruling involved a different law, Title VII of the Civil Rights Act of 1964. The high court said Title VII makes it unlawful to fail to hire or fire someone on the basis of their LGBT identity.
The Office for Civil Rights issued its initial letter to CIAC in May, prior to the high court’s decision.
Two biological boys who identify as girls won 15 Connecticut girls’ state track titles. Connecticut does not require transgender girls to take testosterone-suppressing hormones, as is required on the NCAA and international levels.
The Office for Civil Rights letter quoted the Supreme Court’s majority decision, in which the justices said they did not “prejudge” how their opinion would impact other laws.
“None of these other laws are before us,” the Supreme Court’s decision said.
Title IX was passed to protect opportunities for females, the letter said.
“Significantly, unlike Title VII, one of Title IX’s crucial purposes is protecting women’s and girls’ athletic opportunities. Indeed, Title IX was passed, and implemented by regulations, to prohibit discrimination on the basis of sex in education programs and activities and to protect equal athletic opportunity for students who are biological females, including providing for sex-segregated athletics,” the letter said.
Men and women, the letter added, are not “similarly situated because of their physiological differences, and separating them based on sex is accordingly not prohibited by Title IX.”
“Thus, schools may offer separate-sex teams. Indeed, such separate-sex teams have long ensured that female student athletes are afforded an equal opportunity to participate,” the letter said.
The Office for Civil Rights was responding to a complaint filed by three Connecticut female track athletes. Female athletes, the office ruled, faced discrimination due to the Connecticut policy.
“Female student-athletes were denied the opportunity to compete in events that were exclusively female, whereas male student-athletes were able to compete in events that were exclusively male,” the Aug. 31 letter said.
Alliance Defending Freedom, which filed the complaint on behalf of the female athletes, applauded the Office for Civil Rights’ stance.
“The U.S. Supreme Court’s recent decision concerning a completely separate law cannot be manipulated to mean that girls should be reduced to spectators in their own sport,” said ADF legal counsel Christiana Holcomb. “The OCR’s revised letter … rightly recognizes this. Among other things, the Supreme Court expressly stated that it was not ruling on any law outside of Title VII and the questions surrounding it, which are entirely different than the questions involved in this situation, where physiological differences between athletes remain clearly relevant.
“If anything, that ruling only reinforces the binding nature of Title IX, as the OCR revised letter explains,” Holcomb said. “In short, no credible legal argument can be made to push girls off of the winners’ podium in their own sports. Males will always have inherent physical advantages over comparably talented and trained girls; that’s the reason we have girls’ sports in the first place.”
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