Alito, J., dissenting
The logic of the Court’s decision could even affect professional sports. Under the Court’s holding that Title VII prohibits employment discrimination because of transgender status, an athlete who has the physique of a man but identifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qualification (BFOQ) under 42 U. S. C. §2000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson, 433 U. S. 321, 334 (1977).
Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX, 20 U. S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies.[1] Similar claims may be brought under the Fair Housing Act. See 42 U. S. C. §3604.
Employment by religious organizations. Briefs filed by a wide range of religious groups—Christian, Jewish, and Muslim—express deep concern that the position now adopted by the Court “will trigger open conflict with faith-
- ↑ Indeed, the 2016 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4.
year before, the student won the women’s competition by over a second and a half—a time that had garnered tenth place in the men’s conference meet just three years before.” Id., at 15.
A transgender male—i.e., a biological female who was in the process of transitioning to male and actively taking testosterone injections—won the Texas girls’ state championship in high school wrestling in 2017. Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 26, 2017, p. A1, col. 1.
