Wait, Can He Actually Do That? Part 5: Transgender Athletes Under Title IX

Last week, Donald Trump signed an Executive Order with the provocative title "Keeping Men Out Of Women's Sports." It aims to bar transgender girls and women from participating in girls' and women's sports at federally funded educational institutions (which is to say just about every school in the country). Here's a summary of the main provisions of what I'll call the Anti-Trans Executive Order or ATEO:

(1) The ATEO  uses a backdoor mechanism to rescind a Biden Administration regulation that had construed Title IX to, among other things, forbid covered institutions from discriminating (or permitting harassment) based on gender identity. It does so by asserting that the government will comply with a  ruling by a federal district judge in Kentucky in a case brought by the states of Tennessee, Ohio, Indiana, Kentucky, Virginia, and West Virginia. That ruling vacated the Biden Administration reg under a somewhat controversial vacatur power in cases brought under the Administrative Procedure Act (APA). (I discussed how the differing views on vacatur may have played a role in a SCOTUS shadow docket decision in an earlier version of this same case in this essay last August.)

(2) The ATEO directs the Secretary of Education to develop policies and promulgate new regulations barring transgender girls and women from participating in girls' and women's sports in funded institutions. Presumably this would have to occur before the completion of Trump's plan to terminate the Department of Education (DOE).

(3) The ATEO prioritizes DOE enforcement of Title IX against funded institutions that permit transgender girls and women to participate in girls' and women's sports.

(4) The ATEO directs federal agencies to "review grants to educational programs and, where appropriate, rescind funding to programs that fail to comply with the" ATEO.

(5) The ATEO contains various other directives to end U.S. government support for participation of transgender girls and women in girls' and women's sports both in the U.S. and internationally, including "measures to see that the International Olympic Committee amends the standards governing Olympic sporting events to [ensure] that eligibility for participation in women’s sporting events is determined according to sex [assigned at birth] and not gender identity or testosterone reduction."

All of the foregoing raises the question: Can Trump actually do that?

Part of the answer, here and with respect to other dubious EOs, is this: whether or not it's legal, he might be able to get away with it. Just one day after the issuance of the ATEO, the NCAA announced that it was immediately banning trans women from competing in intercollegiate women's sports. Previously, the NCAA had left to each sport's governing body the determination whether transgender women could participate, based, in principle at least, on judgments about the extent to which there were relevant biological differences that provided unfair advantages in each particular sport.

The NCAA's action renders it unlikely that individual colleges or universities that wish to permit transgender women to continue to participate in women's sports will have occasion to challenge the ATEO. In any event, even in the absence of the NCAA action, such a challenge would have been daunting. The risk of a funding cutoff would be high, and we have seen that on issues of DOE funding, colleges and universities have tended to comply with demands by DOE in "Dear colleague" letters rather than resist, lose funding, and take their chances in after-the-fact litigation.

However, there is a different means by which the ATEO could be challenged. In the 1999 case of Davis v. Monroe County Bd. of Educ., the Supreme Court recognized a private right of action under Title IX. Say a transgender woman wishes to try out for her college's intercollegiate team in some sport and would have been eligible to do so (perhaps because she takes approved testosterone-suppressive hormones) for the particular sport prior to the ATEO and new NCAA policy. The college tells her she is ineligible. Per Davis, she can now sue. Would she win?

Maybe. In describing the ATEO above in (1), I said that it uses a backdoor to rescind the Biden Administration's trans-friendly reg. Absent one of a limited number of exceptions that appear inapplicable, if a reg is adopted through notice-and-comment rulemaking, it can be rescinded (or modified) only by notice-and-comment rulemaking. Here, the Trump Administration short-circuited that process by acquiescing in the district court's vacatur without full appeal. This practice is problematic. It allows one administration to circumvent the APA's procedural requirements and strike the work of a prior administration by waiting for a lawsuit from a simpatico plaintiff in a favorable forum and then deliberately falling on its sword.

While that development is troubling in many settings, however, here it probably makes little difference. That's because, following the SCOTUS decision last summer in Loper Bright, the Biden Administration reg would not receive judicial deference. Neither will the Trump ATEO. Rather, in evaluating the lawsuit I'm imagining by a trans athlete, the courts will ask whether, in their own judicial judgment, exclusion of trans female athletes from women's sports violates Title IX.

The answer under current law is unclear. Bostock v. Clayton County held that discrimination on the basis of sexual orientation or transgender identity is sex discrimination in violation of Title VII. Justice Gorsuch wrote Bostock, and Chief Justice Roberts joined. There is no reason to think either of them has wavered in their view of what Title VII's prohibition on sex discrimination means. Thus, we can assume that there are at least five votes on the current Court to retain Bostock: Roberts; Sotomayor; Kagan; Gorsuch; and Jackson. Maybe Barrett too; the case was decided before she joined the Court.

But to say that Bostock remains good law does not necessarily mean that SCOTUS will follow it in a Title IX case involving women's sports. En route to its decision in Bostock, the Court said this:

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “ ‘discriminate against’ ” refers to “distinctions or differences in treatment that injure protected individuals.”  . . . Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.

The ATEO invokes not only an interest in fair athletic competition but also an interest in protecting cisgender girls and women from being required to "appear unclothed before males" (which is how the Trump administration refers to transgender girls and women). Whether that aspect of the ATEO is valid is thus a question that Bostock does not resolve. Meanwhile, although Justice Alito's dissent (joined by Justice Thomas) in Bostock went on at length about women's sports, the majority said nothing about the subject, suggesting that it saw that issue as well as potentially distinguishable.

Because of the risk that lower courts and SCOTUS will distinguish Bostock in cases like the one I'm imagining, lawyers seeking to challenge the ATEO would do well to find additional kinds of challenges that do not depend on the courts applying Bostock to Title IX athletics cases. For example, in an appropriate case, it might be possible to challenge the ATEO as an impermissible interpretation of Title IX. After all, even if SCOTUS were to conclude that Title IX doesn't forbid exclusion of transgender girls and women from girls' and women's sports, that would not by itself mean that Title IX requires their exclusion. If it doesn't, then the ATEO could be deemed ultra vires or arbitrary and capricious, and individual schools and the NCAA could adopt more trans-friendly policies.

We might also see a challenge to the ATEO on the ground that it's the sort of action that cannot be undertaken by a mere executive order but must instead be accomplished through notice-and-comment rulemaking. Although I'd like to see such a challenge succeed, in recent years the DOE has often acted through "Dear Colleague" letters that also don't go through notice and comment. That practice has long been criticized by conservatives. Perhaps their critiques can be repurposed.