Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022)/Opinion of Judge Lagoa
Lagoa, Circuit Judge, Specially Concurring:
I concur fully in the majority opinion’s determination that the School Board of St. Johns County’s unremarkable bathroom policy neither violates the Equal Protection Clause nor Title IX. I write separately to discuss the effect that a departure from a biological understanding of “sex” under Title IX—i.e., equating “sex” to “gender identity” or “transgender status”—would have on girls’ and women’s rights and sports.
As discussed in the majority opinion, Title IX does not explicitly define “sex” within its statutory scheme and corresponding implementing regulations. And Title IX’s statutory language says nothing specifically about sports. But the Title IX regulations that apply to sports do, and those regulations mirror the blanket-rule-with-specific-exception framework that Title IX statutorily applies to living facilities. Indeed, notwithstanding the broad prohibition against discrimination “on the basis of sex” in athletics, 34 C.F.R. § 106.41(a), the implementing regulations also allow a recipient of federal funds to “operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport,” id. § 106.41(b). As with all of Title IX’s regulatory carve-outs allowing certain sex-separated activities, the interpretation of “sex” in the sex-separated sports carve-out flows from the meaning of “sex” within Title IX itself. And the interpretation of “sex” in the statute “would of course take precedence” when interpreting “sex” in the regulatory sports carve-out. Bostock v. Clayton County, 140 S. Ct. 1731, 1779 n.48 (2020) (Alito, J., dissenting).
Affirming the district court’s order and adopting Adams’s definition of “sex” under Title IX to include “gender identity” or “transgender status” would have had repercussions far beyond the bathroom door. There simply is no limiting principle to cabin that definition of “sex” to the regulatory carve-out for bathrooms under Title IX, as opposed to the regulatory carve-out for sports or, for that matter, to the statutory and regulatory carve-outs for living facilities, showers, and locker rooms. And a definition of “sex” beyond “biological sex” would not only cut against the vast weight of drafting-era dictionary definitions and the Spending Clause’s clear-statement rule but would also force female student athletes “to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female.” Id. at 1779–80. Such a proposition—i.e., commingling both biological sexes in the realm of female athletics—would “threaten[] to undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.” Id. at 1779.
To understand why such a judicially-imposed proposition would be deleterious, one need not look further than the neighborhood park or local college campus to see the remarkable impact Title IX has had on girls and women in sports. At nearly every park in the country, young girls chase each other up and down soccer fields, volley back and forth on tennis courts, and shoot balls into hoops. And at colleges, it is now commonplace to see young women training in state-of-the-art athletic facilities, from swimming pools to basketball arenas, with the records of their accolades hung from the rafters.
The implementation of Title IX and its regulations is the reason such scenes are now commonplace because Title IX “precipitated a virtual revolution for girls and women in sports.” Deborah Brake, The Struggle for Sex Equality in Sport and the Theory Behind Title IX, 34 U. Mich. J.L. Reform 13, 15 (2000). Indeed, “Title IX has paved the way for significant increases in athletic participation for girls and women at all levels of education.” Id. Its effects in this regard have been noteworthy:
Fewer than 300,000 female students participated in interscholastic athletics in 1971. By 1998–99, that number exceed 2.6 million, with significant increases in each intervening year. To put these numbers in perspective, since Title IX was enacted, the number of girls playing high school sports has gone from one in twenty-seven, to one in three.
Id. (footnotes omitted).
And, as courts and commentators have noted, “Title IX shapes women’s interest [in sports], rather than merely requiring equality based on a preexisting level of interest.” See David S. Cohen, Title IX: Beyond Equal Protection, 28 Harv. J.L. & Gender 217, 263 (2005) (emphasis added) (citing Cohen v. Brown Univ., 101 F.3d 155, 188 (1st Cir. 1996)). “What stimulated [the] remarkable change in the quality of women’s athletic competition was not a sudden, anomalous upsurge in women’s interest in sports, but the enforcement of Title IX’s mandate of gender equity in sports.” Cohen, 101 F.3d at 188 (citing Robert Kuttner, Vicious Circle of Exclusion, Wash. Post, Sept. 4, 1996, at A15). In short, “[t]here can be no doubt that Title IX has changed the face of women’s sports as well as our society’s interest in and attitude toward women athletes and women’s sports.” Id.
But had the majority opinion adopted Adams’s argument that “sex,” as used in Title IX, includes the concept of “gender identity” or “transgender status,” then it would have become the law of this Circuit for all aspects of the statute. Under such a precedent, a transgender athlete, who is born a biological male, could demand the ability to try out for and compete on a sports team comprised of biological females. Such a commingling of the biological sexes in the female athletics arena would significantly undermine the benefits afforded to female student athletes under Title IX’s allowance for sex-separated sports teams.
This is because it is neither myth nor outdated stereotype that there are inherent differences between those born male and those born female and that those born male, including transgender women and girls, have physiological advantages in many sports. Doriane Lambelet Coleman, et al., Re-affirming the Value of the Sports Exception to Title IX’s General Non-Discrimination Rule, 27 Duke J. Gender L. & Pol’y 69, 87–88 (2020). While pre-puberty physical differences that affect athletic performance are “not unequivocally negligible” between males and females, measurable physical differences between males and females develop during puberty that significantly impact athletic performance. Emma N. Hilton & Tommy R. Lundberg, Transgender Women in The Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage, 51 Sports Medicine 200–01 (2021). Indeed, during puberty, “testosterone levels increase 20-fold in males, but remain low in females, resulting in circulating testosterone concentrations at least 15 times higher in males than in females of any age.” Id. at 201. And “the biological effects of elevated pubertal testosterone are primarily responsible for driving the divergence of athletic performances between males and females.” Id.
For example, in comparison to biological females, biological males have: “greater lean body mass,” i.e., “more skeletal muscle and less fat”; “larger hearts,” “both in absolute terms and scaled to lean body mass”; “higher cardiac outputs”; “larger hemoglobin mass”; larger maximal oxygen consumption (VO2 max), “both in absolute terms and scaled to lean body mass”; “greater glycogen utilization”; “higher anaerobic capacity”; and “different economy of motion.” The Role of Testosterone in Athletic Performance, Duke Ctr. for Sports L. & Pol’y 1 (Jan. 2019). These physical differences cut directly to the “main physical attributes that contribute to elite athletic performance,” as recognized by sports science and sports medicine experts. Id. In tangible performance terms, studies have shown that these physical differences allow post-pubescent males to “jump (25%) higher than females, throw (25%) further than females, run (11%) faster than females, and accelerate (20%) faster than females” on average. Jennifer C. Braceras, et al., Competition: Title IX, Male-Bodied Athletes, and the Threat to Women’s Sports, Indep. Women’s F. & Indep. Women’s L. Ctr. 20 (2021) (footnotes omitted). The largest performance gap may be seen “in the area of strength.” Id. Studies also have shown that males “are able to lift 30% more than females of equivalent stature and mass,” as well as punch with significantly greater force than females. Id.
Importantly, scientific studies indicate that transgender females, even those who have undergone testosterone suppression to lower their testosterone levels to within that of an average biological female, retain most of the puberty-related advantages of muscle mass and strength seen in biological males. See generally, e.g., Hilton & Lundberg, supra. As such, “trans women and girls remain fully male-bodied in the respects that matter for sport; [and] because of this, their inclusion effectively de-segregates the teams and events they join.” Coleman et al., supra, at 108. This is because:
[F]emale sport is by design and for good reasons, a reproductive sex classification. These reasons have nothing to do with transphobia and everything to do with the performance gap that emerges from the onset of male puberty. Whether one is trans or not, if one is in sport and cares about sex equality, this physical phenomenon is undeniably relevant. Changing how we define “female” so that it includes individuals of both sexes, and then disallowing any distinctions among them on the basis of sex, is by definition and in effect a rejection of Title IX’s equality goals.
Id. at 133.
As particularly relevant to this appeal, such physiological differences exist in high school sports. See id. at 89–90. While most studies look at the differences between the best or “elite class” females in sport as compared to their male counterparts, “[i]t is perhaps more important … that those girls who are only average high school athletes … would fare even worse.” Id. at 90. Looking to these young women and girls, “if sport were not sex segregated, most school-aged females would be eliminated from competition in the earliest rounds.” Id. For that matter, many biological girls may not even make the team, missing out on the key skills learned from participation in sports and missing out on key opportunities to further their education through higher education scholarships. See id. at 72.
But why does it matter if women and girls are given the equal opportunity to compete in sports? The answer cuts to the heart of why Title IX is seen as such a success story for women’s rights and why this case presents significant questions of general public concern. “Girls who play sports stay in school longer, suffer fewer health problems, enter the labor force at higher rates, and are more likely to land better jobs. They are also more likely to lead.” Beth A. Brooke-Marciniak & Donna de Varona, Amazing Things Happen When You Give Female Athletes the Same Funding as Men, World Econ. F. (Aug. 25, 2016), https://www.weforum.org/agenda/2016/08/sustaining-the-olympic-legacy-women-in-sports-and-public-policy/. “[R]esearch shows stunningly that 94[] percent of women C-Suite executives today played sport, and over half played at a university level.” Id.; Coleman et al., supra, at 106. Being engaged in sports “inculcate[s] the values of fitness and athleticism for lifelong health and wellness” and “impart[s] additional socially valuable traits including teamwork, sportsmanship, and leadership, as well as individually valuable traits including goal setting, time management, perseverance, discipline, and grit.” Coleman et al., supra, at 104. To open up competition to transgender women and girls hinders biological women and girls—over half of the United States population—from experiencing these invaluable benefits and learning these traits. Indeed:
[T]he sports exception to Title IX’s general nondiscrimination rule has long been one of the statute’s most popular features. This affirmative approach is understood to be necessary to ensure that the sex-linked differences that emerge from the onset of male puberty do not stand as obstacles to sex equality in the athletic arena. From the beginning, it was understood that any different, sex neutral measures would ensure precisely the opposite—that spaces on selective teams and spots in finals and podiums would all go to boys and men. The sports exception makes it possible for women and girls also to benefit from the multiple positive effects of these experiences, and for their communities and the broader society to reap the benefits of their empowerment.
Id. at 132 (footnote omitted).
Affirming the district court’s conclusion that “the meaning of ‘sex’ in Title IX includes ‘gender identity’” would open the door to eroding Title IX’s beneficial legacy for girls and women in sports. And removing distinctions based on biological sex from sports, particularly for girls in middle school and high school, harms not only girls’ and women’s prospects in sports, but also hinders their development and opportunities beyond the realm of sports—a significant harm to society as a whole. **** To summarize, as a matter of principled statutory interpretation, there can only be one definition of “sex” under Title IX and its implementing regulations. Departing from a biological and reproductive understanding of such a definition, as supported by the overwhelming majority of drafting-era dictionaries, would have vast societal consequences and significantly impact girls’ and women’s rights and sports. The majority opinion is correct not to depart from such an understanding absent a clear statement from Congress. Whether “sex,” as set forth in a statute enacted in 1972, should be updated to include “gender identity” or “transgender status” is best left for Congress and the democratic and legislative processes—not to unelected members of the Judiciary.