The Biden Justice Department says in a new memo that federal law and Supreme Court precedent requires schools to allow biological boys who identify as girls to play on girls’ sports teams.
The memo was issued March 26 and directed to “Federal Agency Civil Rights Directors and General Counsels.” It was written by Pamela S. Karlan of the Justice Department’s Civil Rights Division.
A federal law known as Title IX, the memo notes, provides that “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.” The definition of “activity” encompasses sports.
Historically, the definition of sex in Title IX meant “male” and “female.” The Biden administration wants to broaden the definition to include gender identity and sexual orientation.
“After considering the text of Title IX, Supreme Court case law, and developing jurisprudence in this area, the Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation,” the memo reads.
The memo relies heavily on the Supreme Court’s recent decision in Bostock v. Clayton County, in which the justices ruled that employers cannot fire someone for being gay or transgender under federal law.
Biden signed an executive order in January stating that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” The executive order further declared: “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”
In Connecticut in recent years, two biological boys who identify as girls won 15 girls’ state track titles.
“The same reasoning” that supports Bostock “supports the interpretation that Title IX’s prohibition of discrimination ‘on the basis of’ sex would prohibit recipients from discriminating against an individual based on that person’s sexual orientation or transgender status,” the memo says.
The memo is a reversal of a policy under the Trump administration, which ruled precisely the opposite. Under the Trump Justice Department, high schools violated Title IX if they allowed biological boys who identify as girls to compete in girls-only sports.
Alliance Defending Freedom filed a federal lawsuit on behalf of four biological girls who run track in Connecticut and say the state’s policy deprived them of medals and opportunities, such as scholarship offers.
“Female athletes deserve fair competition – an equal opportunity to compete, achieve and win. But competition is no longer fair when males are allowed to compete in girls’ sports,” said ADF legal counsel Christiana Holcomb. “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.
Our clients have already had the demoralizing experience of losing to male runners; this should not be allowed to continue. These committed female athletes and young women across the country – deserve an opportunity that’s truly equal, without being sidelined by males dominating their sport.”