Amicus Curiae Brief — Metropolitan School District of Martinsville, Petitioner v. A. C., a Minor Child by His Next Friend, Mother and Legal Guardian, M. C.

Supreme Court briefNov 13, 2023

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No. 23-392

In the Supreme Court of the United States

METROPOLITAN SCHOOL DISTRICT OF MARTINSVILLE,

Petitioner,

A.C., A MINOR CHILD BY HIS NEXT FRIEND, MOTHER AND

LEGAL GUARDIAN, M.C.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR PARENTS DEFENDING

EDUCATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

J. Michael Connolly

Counsel of Record

James F. Hasson

Thomas S. Vaseliou

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

mike@consovoymccarthy.com

November 13, 2023

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Table of Cited Authorities.......................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................1

Reasons for Granting the Petition ..............................3

The Seventh Circuit’s decision interferes

with students’ privacy rights and leaves

schools without feasible alternatives.............3

II. The Seventh Circuit’s decision endangers

women’s sports................................................6

A. Title IX lets schools condition

eligibility for women’s athletics on

biological sex instead of gender

identity. ....................................................8

B. The ruling endangers female

athletes. .................................................. 15

Conclusion ................................................................. 18

TABLE OF CITED AUTHORITIES

Cases

A.C. by M.C. v. Metro. Sch. Dist. of Martinsville,

75 F.4th 760 (7th Cir. 2023) ....................... 2, 4, 12

A.M. by E.M. v. Indianapolis Pub. Sch.,

617 F.Supp.3d 950 (S.D. Ind. 2022) .....................7

Adams by & through Kasper v. Sch. Bd. of

St. Johns Cnty., 57 F.4th 791 (11th Cir. 2022)

(en banc) .................................... 2, 4, 7, 8, 9, 13, 15

Bear Creek Bible Church v. EEOC,

571 F.Supp.3d 571 (N.D. Tex. 2021) ....................3

Biden v. Nebraska,

143 S.Ct. 2355 (2023) .......................................... 15

Bittner v. United States,

598 U.S. 85 (2023) ............................................... 11

Bostock v. Clayton County,

140 S.Ct. 1731 (2020) ........................ 12, 13, 14, 15

B.P.J. by Jackson v. West Virginia State Bd. of

Educ., 2023 WL 2803113

(4th Cir. Feb. 22, 2023) .........................................7

Conley v. Nw. Fla. State Coll.,

145 F.Supp.3d 1073 (N.D. Fl. 2015) ................... 10

Frontiero v. Richardson,

411 U.S. 677 (1973) ...............................................9

Grimm v. Gloucester Cnty. Sch. Bd.,

972 F.3d 586 (4th Cir. 2020) .................................2

Jones v. Hendrix,

599 U.S. 465 (2023) ...............................................4

iii

Muro v. Bd. of Supervisors of Louisiana State Univ.

& Agric. & Mech. Coll.,

2019 WL 5810308 (E.D. La. Nov. 7, 2019) ......... 10

Niz-Chavez v. Garland,

141 S.Ct. 1474 (2021) .......................................... 11

Pelcha v. MW Bancorp, Inc.,

988 F.3d 318 (6th Cir. 2021) ............................... 13

Tennessee v. U.S. Dep’t of Educ.,

2022 WL 2791450 (E.D. Tenn. July 15, 2022) ... 13

United States v. Virginia,

518 U.S. 515 (1996) ...............................................3

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ...............................................9

West Virginia v. B.P.J., by Jackson,

143 S.Ct. 889 (2023) .......................................... 7, 8

West Virginia v. EPA,

142 S.Ct. 2587 (2022) .......................................... 15

Whitaker By Whitaker v. Kenosha Unified Sch.

Dist. No. 1 Bd. of Educ.,

858 F.3d 1034 (7th Cir. 2017) ........................... 3, 4

Wis. Cent. Ltd. v. United States,

138 S.Ct. 2067 (2018) ............................................9

Yellen v. Confederated Tribes of Chehalis Rsrv.,

141 S.Ct. 2434 (2021) ............................................8

Statutes

20 U.S.C. §1681, et seq. ...............................................8

20 U.S.C. §1681(a)(2) ..................................................9

20 U.S.C. §1681(a)(8) ..................................................9

20 U.S.C. §1682 ......................................................... 10

Regulations

34 C.F.R. §106.33 ...................................................... 10

34 C.F.R. §106.40(b)(1) .............................................. 10

34 C.F.R. §106.41(a) ....................................................8

34 C.F.R. §106.41(b) ............................................ 10, 16

Other Authorities

Adult Reads Anonymous Letter from Linn-Mar

Student Opposed to Radical Transgender

Policy, The Iowa Standard (Apr. 26, 2023),

perma.cc/YVG2-E7T8 ...........................................4

Berrien, ‘18 Times Per Week’: Former Teammate

of Lia Thomas Recalls Humiliation of

Undressing, Daily Wire (July 27, 2023),

perma.cc/86L8-R8NJ ............................................6

Brooks, Protesters Rally Outside Linn-Mar over

Transgender Policy, CBS Iowa (May 6, 2022),

perma.cc/GZE3-DH5M..........................................4

Coleman & Shreve, Comparing Athletic

Performances the Best Women to Boys and

Men, Ctr. for Sports Law & Policy,

perma.cc/3Z7R-W6Q2 ......................................... 16

Coleman, et al., Re-affirming the Value of the

Sports Exception to Title IX’s General

Nondiscrimination Rule, 27 Duke J. Gender

L. & Pol’y 69 (2020) ............................................. 11

Downey, Female Volleyball Player Testifies to

Physical, Mental Trauma Since Injury by

Trans Athlete, National Review (Apr. 20,

2023), perma.cc/D2W5-QGWE ........................... 18

Flower, Parents Upset at ‘Unfair Advantage’ of

Trans Woman in Female Soccer League Will

Be Offered Training to Better Understand

‘Lived Experience’ of Transgender Players, UK

Daily Mail (Apr. 2, 2023), perma.cc/H95FTZUE ................................................................... 18

Gaydos, High School Field Hockey Captain

Speaks Out Against Rule Allowing Boys on

Girls Teams After Horrific Injury, Fox News

(Nov. 5, 2023), perma.cc/34J9-FLKM ................17

McCaughey, Transgender Weightlifter Shatters

Women’s Deadlifting Record, Trounces

Competitors in Canadian Championship, New

York Sun (Aug. 16, 2023), perma.cc/T7B3RS4X ....................................................................15

Minock, Loudoun Schools Explore Replacing Boys

and Girls Bathrooms with All-Gender, Single

Stalls, ABC7 News (Apr. 12, 2023),

perma.cc/CN4W-WU52 .........................................6

Morik, Massachusetts Superintendent Calls for

Change After Male Sends Female to Hospital

in Field Hockey Game, Fox News (Nov. 3,

2023), perma.cc/5Y6V-Y5KS...............................17

Penley, Pennsylvania School District Reverses

Trans Bathroom Policy Weeks After Student

Walkout, Fox News (Oct. 5, 2023),

perma.cc/STB6-WV7X ..........................................5

Penn-Delco School District Allows Biological Male

Students to Use Female Restrooms Despite

Concerns from Parents and Students, Parents

Defending Education (Oct. 20, 2023),

perma.cc/Z5UH-W2H6 ......................................4, 5

Poff, Students in Pennsylvania School District

Plan Walkout over Male Using Girls’

Bathroom, Wash. Examiner (Oct. 20, 2023),

perma.cc/2YLR-5VEZ ...........................................5

Pollina, High School Girl’s Field Hockey Player

Loses Teeth, Injured by Shot from Male

Opponent, N.Y. Post (Nov. 4, 2023),

perma.cc/Z9L3-HTSC.......................................... 17

Prestigiacomo, Another Women’s Sport Sees

Trans Athletes Rise to Top, And Competitors

Are Speaking Out, Daily Wire (Oct. 1, 2022),

perma.cc/5ZVV-L5EU ......................................... 16

Purohit, When Transgender Fighter Fallon Fox

Broke Her Opponent’s Skull in MMA Fight

(Sept. 30, 2021), perma.cc/G876-K6KA..............18

Schemmel, Trans Student Exposed Girls to Male

Genitalia in School Locker Room, Legal

Group Claims, Fox 25 (Apr. 21, 2023),

perma.cc/EKW8-QXTF .........................................6

vii

Steinbuch, Loudoun County Students Stage

Walkout to Protest Transgender Bathroom

Policy, N.Y. Post (Nov. 3, 2023),

perma.cc/GP8Z-BF8U ...........................................5

Steinbuch, Tennis Star Martina Navratilova

Slams Trans Cyclist Austin Killips’ Victory,

N.Y. Post (May 5, 2023), perma.cc/8UBDY7VF .............................................................. 15, 16

Tietz, High School Students Walk Out of Class in

Protest of Transgender Bathroom Policy: ‘They

Ignore Us,’ Fox News (Nov. 2, 2023),

perma.cc/CA3L-GRMY .........................................5

U.S. Dep’t of Educ. Office of Civil Rights, Letter to

Kim Mooney (Oct. 16, 2020), perma.cc/ECH5Q95X .............................................................. 14, 15

U.S. Dep’t of Educ. Office for Civil Rights,

Memorandum re: Bostock v. Clayton Cnty., 1

(Jan. 8, 2021), perma.cc/5GX3-HZSX ................. 14

INTEREST OF AMICUS CURIAE *

Parents Defending Education is a national, nonprofit, grassroots association. Its members include

many parents with school-aged children. Launched in

2021, it uses advocacy, disclosure, and litigation to

combat the increasing politicization and indoctrination of K-12 education.

PDE has a substantial interest in this case. Title

IX was enacted to prevent discrimination against, and

ensure equal opportunities for, female students. By

any metric, it has been wildly successful in achieving

that purpose. The Seventh Circuit’s decision, however, will reverse this progress and harm vulnerable

families, including PDE’s members and their children.

SUMMARY OF ARGUMENT

Congress passed Title IX to ensure that female

students in the United States could access the same

benefits and opportunities enjoyed by male students.

As one might expect, Title IX achieves its purpose by

recognizing two categories of students: males and females. The law repeatedly speaks about benefits provided by “one sex” versus “the other sex,” and sometimes references “both sexes.” Title IX, by its very nature, is comparative: It requires school administrators—and the courts overseeing them—to compare the

* Under Rule 37.2, amicus curiae provided timely notice of

its intention to file this brief. Under Rule 37.6, no counsel for a

party authored this brief in whole or in part, and no person other

than amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

opportunities afforded to one group with the opportunities afforded to another. It is impossible to compare

two things, however, if neither has a verifiable definition. The key question is straightforward: What did

Congress mean when it required equal treatment for

members of each “sex”?

The text, structure, history, and purpose of Title

IX all point to one conclusion: that “sex” refers to biological and inalterable differences between males and

females. As the en banc court of the Eleventh Circuit

observed, “[t]here simply is no alternative definition

of ‘sex’ for transgender persons as compared to nontransgender persons under Title IX.” Adams by &

through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th

791, 813-14 (11th Cir. 2022) (en banc).

But the Seventh Circuit has split with the Eleventh Circuit and joined the Fourth Circuit in concluding that “sex” doesn’t mean “biological sex.” See A.C.

by M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th

760 (7th Cir. 2023); Grimm v. Gloucester Cnty. Sch.

Bd., 972 F.3d 586 (4th Cir. 2020). According to these

circuits, Title IX and the Equal Protection Clause of

the Fourteenth Amendment require schools to permit

a biological boy to use the girls’ bathroom if the boy

identifies as a girl (and vice versa).

The Seventh and Fourth Circuits have thus forced

schools to allow students’ privacy to be invaded. Perhaps worse, these circuits will necessarily require

schools to change women’s sports into a fundamentally unfair and unsafe enterprise. And they’ve done

so when neither the text of Title IX nor the Constitution requires this result. This Court should grant the

petition and right these circuits’ jurisprudential

wrongs.

REASONS FOR GRANTING THE PETITION

I. The Seventh Circuit’s decision interferes

with students’ privacy rights and leaves

schools without feasible alternatives.

The Seventh Circuit’s ruling risks compromising

the privacy rights of students, especially in private

spaces like restrooms, locker rooms, lodging accommodations for competitive sports travel, and medical facilities on school property and at school-sponsored

events. “The Supreme Court has long recognized the

need for privacy in close quarters, bathrooms, and

locker rooms to protect individuals with anatomical

differences—differences based on biological sex.” Bear

Creek Bible Church v. EEOC, 571 F.Supp.3d 571, 625

(N.D. Tex. 2021) (citing United States v. Virginia, 518

U.S. 515, 550 n.19 (1996)).

The Seventh Circuit dismissed these privacy concerns based on several speculative conclusions. According to the Seventh Circuit, “[a] transgender student’s presence in the restroom provides no more of a

risk to other students’ privacy rights than the presence of … any other student who uses the bathroom at

the same time.” Whitaker By Whitaker v. Kenosha

Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034,

1052 (7th Cir. 2017). “‘Common sense,” claims the

Seventh Circuit, dictates that “‘the communal restroom is a place where individuals act in a discreet

manner to protect their privacy and those who have

true privacy concerns are able to utilize a stall.’” A.C.,

75 F.4th at 773 (quoting Whitaker, 858 F.3d at 1052).

But “‘a page of history is worth a volume of logic.’”

Jones v. Hendrix, 599 U.S. 465, 472 (2023). There is a

reason that “[t]here has been a long tradition in this

country of separating sexes” in many circumstances,

particularly in “public bathrooms” and locker rooms.

Adams, 57 F.4th at 801. And recent experience only

confirms as much. Contra the Seventh Circuit, history

and experience show that the privacy concerns are not

“‘entirely conjectural’” but a very real reality for students across the country. A.C., 75 F.4th at 772.

For example, in one Iowa school district, students

expressed that the school’s bathroom policy was a privacy concern, as students “‘would not feel comfortable

changing in front of a transgender student in locker

rooms’” or “‘be comfortable being in a bathroom with a

transgender student.’” Adult Reads Anonymous Letter

from Linn-Mar Student Opposed to Radical

Transgender Policy, The Iowa Standard (Apr. 26,

2023), perma.cc/YVG2-E7T8. Students and their parents repeatedly organized protests and rallies to try to

protect student privacy at school. See Brooks, Protesters Rally Outside Linn-Mar over Transgender Policy,

CBS Iowa (May 6, 2022), perma.cc/GZE3-DH5M.

In Pennsylvania, students walked out in protest

of the school’s bathroom policy that allowed biological

males to use the female restroom if they identify as a

transgender female. See Penn-Delco School District

Allows Biological Male Students to Use Female Restrooms Despite Concerns from Parents and Students,

Parents Defending Education (Oct. 20, 2023),

perma.cc/Z5UH-W2H6; Poff, Students in Pennsylvania School District Plan Walkout over Male Using

Girls’ Bathroom, Wash. Examiner (Oct. 20, 2023),

perma.cc/2YLR-5VEZ. Likewise, at another school in

Pennsylvania, students walked out of class in protest

of the school’s bathroom policy. See Penley, Pennsylvania School District Reverses Trans Bathroom Policy

Weeks After Student Walkout, Fox News (Oct. 5, 2023),

perma.cc/STB6-WV7X (describing the events at Pekiomen Valley School District).

In Virginia, there have been many protests related to one school district’s bathroom policy, “most

prominently” after a girl “was sexually assaulted in

the girls’ [bathroom] by a boy.” Steinbuch, Loudoun

County Students Stage Walkout to Protest

Transgender Bathroom Policy, N.Y. Post (Nov. 3,

2023), perma.cc/GP8Z-BF8U. Because of the district’s

bathroom policy, some female students have “stopped

using the bathroom at school.” Tietz, High School Students Walk Out of Class in Protest of Transgender

Bathroom Policy: ‘They Ignore Us,’ Fox News (Nov. 2,

2023), perma.cc/CA3L-GRMY. Male students also experience the invasion-of-privacy effects of the school’s

policy. See id. (“Another male student [expressed] that

he would like to be able to change after football practice and not feel uncomfortable that ‘other genders’

are watching him.”).

Locker rooms for sports have resulted in the same

privacy concerns. For example, many students raised

privacy concerns after the NCAA permitted a

transgender female to occupy the same locker room as

biological females without any warning at a swim

competition. See Berrien, ‘18 Times Per Week’: Former

Teammate of Lia Thomas Recalls Humiliation of Undressing, Daily Wire (July 27, 2023), perma.cc/86L8R8NJ. Many students raised the same privacy concerns recently over a similar incident in Wisconsin.

See Schemmel, Trans Student Exposed Girls to Male

Genitalia in School Locker Room, Legal Group

Claims, Fox 25 (Apr. 21, 2023), perma.cc/EKW8QXTF.

The decision below raises more than just privacy

concerns. The economic cost of building new bathrooms with privacy protections is extraordinary, and,

practically speaking, individualized re-engineering of

hundreds of thousands of facilities is not possible. An

estimate in Loudoun County shows that bathroom

renovations alone will cost that school district $11 million dollars for two of its eighteen high schools.

Minock, Loudoun Schools Explore Replacing Boys and

Girls Bathrooms with All-Gender, Single Stalls, ABC7

News (Apr. 12, 2023), perma.cc/CN4W-WU52. This

figure excludes the other sixteen high schools, sixtyfive elementary schools, and twenty-one middle

schools in that school district alone. Trying to do something similar across the country is not possible. Without this Court’s intervention, schools in the Seventh

and Fourth Circuits are helpless to avoid the privacy

concerns authorized by the decision below.

II. The Seventh Circuit’s decision endangers

women’s sports.

The natural extension of the Seventh and Fourth

Circuit decisions is that schools must allow

transgender students to participate in sports of the

opposite sex. The en banc court of the Eleventh Circuit

understood that any bathroom decision would also

mean drastic consequences for sports:

For the same reason, affirming the district court’s order would have broad implications for sex-separated sports teams

at institutions subject to Title IX, including public schools and public and private

universities…. Thus, equating “sex” to

“gender identity” or “transgender status”

would also call into question the validity

of sex-separated sports teams.

Adams, 57 F.4th at 816-17 (emphasis added). In the

Seventh and Fourth Circuits, the consequences for

sports are a reality. See B.P.J. by Jackson v. West Virginia State Bd. of Educ., 2023 WL 2803113 (4th Cir.

Feb. 22, 2023); A.M. by E.M. v. Indianapolis Pub. Sch.,

617 F.Supp.3d 950, 966 (S.D. Ind. 2022) (“A law that

prohibits an individual from playing on a sports team

that does not conform to his or her gender identity

punishes that individual for his or her gender nonconformance, which violates the clear language of Title IX.” (cleaned up)).

At bottom, this case involves “an important issue

that this Court is likely to be required to address in

the near future, namely, whether either Title IX … or

the Fourteenth Amendment’s Equal Protection

Clause prohibits a State from restricting participation

in women’s or girls’ sports based on genes or physiological or anatomical characteristics.” West Virginia v.

B.P.J., by Jackson, 143 S.Ct. 889, 889 (2023) (Alito, J.,

dissenting, joined by Thomas, J.). The answer is that

neither do. 1 And the consequences of concluding otherwise are untenable.

This Court should grant the petition and reject the

“highly counterintuitive result” that the Seventh and

Fourth Circuit decisions require. Yellen v. Confederated Tribes of Chehalis Rsrv., 141 S.Ct. 2434, 2448

(2021).

A. Title IX lets schools condition eligibility

for women’s athletics on biological sex

instead of gender identity.

Title IX of the Education Amendments of 1972

prohibits educational institutions that receive federal

funds from excluding, denying the benefits of a program or activity, or otherwise discriminating against

individuals “on the basis of sex.” 20 U.S.C. §1681, et

seq. “While Title IX says nothing specifically about

sports, its implementing regulations do.” Adams, 57

F.4th at 816; see also 34 C.F.R. §106.41(a) (“No person

shall, on the basis of sex, be excluded from participation in ... any interscholastic, intercollegiate, club or

intramural athletics.”). “Those regulations, which necessarily flow from Title IX’s general prohibition

against sex discrimination, mirror the blanket-rule-

PDE addresses only the Title IX issue, although PDE

agrees that the equal-protection issue is of extraordinary importance and that the Constitution does not forbid school districts from maintaining separate-sex bathrooms and separatesex sports.

with-specific-exception framework that Title IX applies to living facilities.” Adams, 57 F.4th at 816.

1. Basic canons of statutory interpretation leave

no doubt that Title IX’s use of the term “sex” refers to

a binary classification based on biological differences

between males and females. Courts must “interpret [a

statute’s] words consistent with their ordinary meaning at the time Congress enacted the statute.” Wis.

Cent. Ltd. v. United States, 138 S.Ct. 2067, 2070

(2018) (cleaned up). The “overwhelming majority of

dictionaries” when Title IX was enacted “define[d]

‘sex’ on the basis of biology and reproductive function.”

Adams, 57 F.4th at 812; see also Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (“[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”).

What the text suggests, context confirms. See Util.

Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014)

(“[R]easonable statutory interpretation must account

for both the specific context in which language is used

and the broader context of the statute as a whole.”

(cleaned up)). Section 1681(a)(2), for instance, distinguishes between “institution[s] which admi[t] only

students of one sex” and “institution[s] which admi[t]

students of both sexes.” 20 U.S.C. §1681(a)(2) (emphasis added). Section 1681(a)(8) likewise refers to sex in

binary terms. Under that provision, if father-son or

mother-daughter activities are provided for “one sex,”

then reasonably comparable activities must be provided for “the other sex.” §1681(a)(8).

Title IX’s implementing regulations reinforce a

commonsense understanding of “sex.” For example,

Title IX regulations specify that discrimination

against a student “on the basis of … pregnancy” constitutes discrimination “on the basis of sex.” 34 C.F.R.

§106.40(b)(1); see 20 U.S.C. §1682. Federal courts

have recognized this rule as a valid corollary to Title

IX’s ban on sex-based discrimination, based on the understanding that “sex” refers to “the ‘structural’ and

‘functional’ differences between male and female bodies.” Conley v. Nw. Fla. State Coll., 145 F.Supp.3d

1073, 1077 (N.D. Fl. 2015); see also Muro v. Bd. of Supervisors of Louisiana State Univ. & Agric. & Mech.

Coll., 2019 WL 5810308, at *3 (E.D. La. Nov. 7, 2019)

(“[A]n adverse action taken against a student on the

basis of pregnancy or pregnancy-related conditions is

taken because of her sex.”). Indeed, the reference to

“sex” in this context could not possibly contemplate

gender identity because biological males are incapable

of pregnancy no matter how they identify. Mirroring

the language in the statute itself, Title IX regulations

also frequently refer to sex in binary and biological

terms. See, e.g., 34 C.F.R. §106.33 (authorizing “separate toilet, locker room, and shower facilities on the

basis of sex” but specifying that “such facilities provided for students of one sex shall be comparable to

such facilities provided to students of the other sex”).

Title IX regulations also have a provision authorizing sex-specific competitions when “contact sports”

are involved. 34 C.F.R. §106.41(b). The regulations define “contact sports” to include boxing, football, and

any “other sports the purpose or major activity of

which involves bodily contact.” Id. The rule makes

sense if “sex” refers to biological characteristics. But

separating contact sports by sex makes no sense if

“sex” is unmoored from physical differences and determined entirely by each student’s internal sense of

their gender. If Title IX’s protections turned on a particular student’s self-identification rather than his or

her physical attributes, then limiting participation in

contact sports to one group but not the other would

make no sense.

The Seventh and Fourth Circuits’ deviation from

these longstanding regulations is telling. See Bittner

v. United States, 598 U.S. 85, 97 (2023) (“[T]he government has repeatedly issued guidance to the public

at odds with the interpretation it now asks us to

adopt. And surely that counts as one more reason yet

to question whether its current position represents

the best view of the law.” (cleaned up)); Niz-Chavez v.

Garland, 141 S.Ct. 1474, 1484 (2021) (similar).

Based on this overwhelming evidence, the legal

conclusion here is straightforward: Title IX and its attendant regulations require schools to provide equal

opportunities to male and female student athletes,

and the equality of those opportunities is evaluated in

the context of biological sex. See, e.g., Coleman, et al.,

Re-affirming the Value of the Sports Exception to Title

IX’s General Nondiscrimination Rule, 27 Duke J. Gender L. & Pol’y 69, 87-88 (2020) (“[I]t 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.”).

2. The Seventh Circuit believed that this Court’s

decision in Bostock v. Clayton County, 140 S.Ct. 1731

(2020), “strengthen[ed]” its conclusion. A.C., 75 F.4th

at 769. That is wrong. But if Bostock has created any

confusion, this Court should make crystal clear that

Bostock does not apply outside Title VII.

In Bostock, the Court held that discrimination “because of sex” under Title VII prohibited employers

from terminating employees because of their

transgender status. See 140 S.Ct. at 1739. The Court

“agree[d] that homosexuality and transgender status

are distinct concepts from sex,” but it concluded that

firing employees “based on homosexuality or

transgender status” still triggers Title VII’s protections because the employer’s action “necessarily entails” a decision made “in part because of the affected

individuals’ sex.” Id. at 1746-47. The Court’s decision

thus rested on the premise that sex is binary and immutable, and that an employee’s biological sex is a

necessary component of any determination about

whether “discrimination because of sex” has occurred

under Title VII. Put differently, whether an adverse

action against a transgender employee violates Title

VII depends not on the specific nature of the employee’s gender identity but on how the employer

treats the employee as compared to other employees

of the same biological sex.

Bostock’s reasoning doesn’t apply to Title IX for at

least three reasons. First, the Court “proceed[ed] on

the assumption that ‘sex’ … refer[red] only to biological distinctions between male and female.” Id. at 1739.

Second, “[t]he Bostock decision only addressed sex discrimination under Title VII; the Supreme Court expressly declined to ‘prejudge’ how its holding would

apply to ‘other federal or state laws that prohibit sex

discrimination’ such as Title IX.” Tennessee v. U.S.

Dep’t of Educ., 2022 WL 2791450, at *16 (E.D. Tenn.

July 15, 2022) (quoting Bostock, 140 S.Ct. at 1753).

Third, Title IX and its implementing regulations contain several carveouts specific to biological sex that

are not present in Title VII.

For these reasons, several federal courts have recognized that “the rule in Bostock extends no further

than Title VII.” Pelcha v. MW Bancorp, Inc., 988 F.3d

318, 324 (6th Cir. 2021); see also, e.g., Adams, 57 F.4th

at 811 (same). For example, in Adams, the Eleventh

Circuit held that Bostock’s reasoning was inapplicable

in the Title IX context. See id. (“We cannot, as the Supreme Court did in Bostock, decide only whether discrimination based on transgender status necessarily

equates to discrimination on the basis of sex.”). Bostock was distinguishable, the court held, “because Title IX, unlike Title VII, includes express statutory and

regulatory carveouts for differentiating between the

sexes.” Id. The Eleventh Circuit noted that if Title IX’s

reference to “‘sex’ were ambiguous enough to include

‘gender identity,’” then those “carveout[s], as well as

the various carveouts under the implementing regulations, would be rendered meaningless.” Id. at 813.

The Department of Education also evaluated Title

IX’s scope in the immediate aftermath of Bostock and

concluded that this Court’s decision did not change

the decades-long consensus that Title IX’s protections

are grounded in biological sex. In a January 2021

memorandum, the Department reiterated that its

“longstanding construction of the term ‘sex’ in Title IX

to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning

of ‘sex’ at the time of Title IX’s enactment.” U.S. Dep’t

of Educ. Office for Civil Rights, Memorandum re: Bostock v. Clayton Cnty., 1 (Jan. 8, 2021), perma.cc/5GX3HZSX (“Bostock Memo”). The Department noted that

“Title IX text is very different from Title VII text in

many important respects.” Id. Like the Sixth and

Eleventh Circuits and other federal courts, the Bostock Memo also observed that the Supreme Court “decided [Bostock] narrowly, specifically refusing to extend its holding to Title IX and other differently

drafted statutes.” Id. The Bostock Memo emphasized

that “[u]nder Title IX and its regulations, a person’s

biological sex is relevant for the considerations involving athletics, and distinctions based thereon are permissible.” Id. at 7. The Department further specified

that “schools must consider students’ biological sex

when determining whether male and female student

athletes have equal opportunities to participate.” Id.

The January 2021 Bostock Memo aligns with the

Department’s other pronouncements in 2020. On October 16, 2020, for example, the Department’s Office

of Civil Rights settled a complaint against Franklin

Pierce University, which had alleged that the University violated Title IX by “den[ying] female studentathletes equal athletic benefits and opportunities by

permitting transgender athletes to participate in

women’s intercollegiate athletic teams.” U.S. Dep’t of

Educ. Office of Civil Rights, Letter to Kim Mooney, 1

(Oct. 16, 2020), perma.cc/ECH5-Q95X. The settlement

agreement required the University “to rescind the Policy [and] cease any and all practices related thereto.”

Id. at 6. The terms of the settlement notwithstanding,

the Department made clear its views that Bostock

doesn’t apply in the Title IX context. See id. at 5.

In sum, nothing in the text, history, or implementing regulations of Title IX contemplates sports separated by gender identity rather than biological sex.

But even if some doubt remained, it favors petitioner’s

reading. That’s because the Spending Clause requires

Congress to speak clearly in Title IX. See Adams, 57

F.4th at 815. And even if the Spending Clause doesn’t

compel a clear statement, the major-questions doctrine does. See, e.g., Biden v. Nebraska, 143 S.Ct.

2355, 2372-75 (2023); West Virginia v. EPA, 142 S.Ct.

2587 (2022).

B. The ruling endangers female athletes.

The Seventh and Fourth Circuit’s understanding

of Title IX and the Equal Protection Clause is flawed.

Its reasoning threatens to turn female sports into a

fundamentally unfair and unsafe enterprise. That

cannot be right.

Recent experience has shown that transgender

athletes that participate in female sports frequently

dominate the competition. See, e.g., McCaughey,

Transgender Weightlifter Shatters Women’s Deadlifting Record, Trounces Competitors in Canadian Championship, New York Sun (Aug. 16, 2023),

perma.cc/T7B3-RS4X; Steinbuch, Tennis Star Martina Navratilova Slams Trans Cyclist Austin Killips’

Victory, N.Y. Post (May 5, 2023), perma.cc/8UBDY7VF; Prestigiacomo, Another Women’s Sport Sees

Trans Athletes Rise to Top, And Competitors Are

Speaking Out, Daily Wire (Oct. 1, 2022),

perma.cc/5ZVV-L5EU

(listing

sports

where

transgender girls eclipsed biological girls, including

“disc golf”).

Experience has also shown that transgender athletes put females at risk for greater injury. Males possess “categorically different strength, speed, and endurance.” Coleman & Shreve, Comparing Athletic Performances the Best Women to Boys and Men, Ctr. for

Sports Law & Policy, perma.cc/3Z7R-W6Q2. These

physical differences increase the risk to females to

compete against males, particularly in contact sports.

Recognizing this distinction, Title IX’s existing regulations expressly address “contact sports,” separating

contact sports by sex to promote the physical wellbeing of athletes. 34 C.F.R. §106.41(b).

An example illustrates the folly in allowing

transgender athletes to participate in women’s sports.

Consider the fact that an elite male lacrosse player

can shoot a lacrosse ball between 80-95 miles-perhour. For this reason, goalies in men’s lacrosse games

wear helmets and chest protectors to prevent serious

injury from projectiles flying towards them at 130

feet-per-second. An elite female lacrosse player, by

contrast, shoots the same ball at least 20-30 miles-perhour slower. Thus, goalies in female lacrosse games

have no need for head and chest protection and only

wear protective eyeglasses. Under the Seventh and

Fourth Circuits’ position, however, a 14-year-old female lacrosse goalie with no protective equipment

could be forced to stare down high-velocity shots from

a 17-year-old, biologically male competitor.

Indeed, in a recent high-school field-hockey game,

a biological male took a shot and hit an opposing female player in the face, causing her to “‘shrie[k] and

screa[m]’” in “‘fear and pain.’” Gaydos, High School

Field Hockey Captain Speaks Out Against Rule Allowing Boys on Girls Teams After Horrific Injury, Fox

News (Nov. 5, 2023), perma.cc/34J9-FLKM. The shot

caused “‘significant facial and dental injuries’” and

“‘required hospitalization.’” Morik, Massachusetts Superintendent Calls for Change After Male Sends Female to Hospital in Field Hockey Game, Fox News

(Nov. 3, 2023), perma.cc/5Y6V-Y5KS. After the incident, “players and coaches” were “horrif[ied],” id.;

they were “visibly distraught over the injury,” Pollina,

High School Girl’s Field Hockey Player Loses Teeth,

Injured by Shot from Male Opponent, N.Y. Post (Nov.

4, 2023), perma.cc/Z9L3-HTSC. In the words of one

player: “‘Following the injury, my teammates were

sobbing not only in fear for their teammate but also in

fear that they had to go back out onto the field and

continue a game, playing against a male athlete who

hospitalized one of our own.’” Gaydos, supra. “‘By trying to create equality,’” the player explained, the

league is “‘only creating inequalities.’” Id.

Other anecdotal evidence points out the obvious:

Males and females have important biological differences that make them compete differently. For exam-

ple, a student competing in varsity-level volleyball reported significant mental and physical delays in recovery after experiencing a severe neck injury caused

by a transgender female athlete. Downey, Female Volleyball Player Testifies to Physical, Mental Trauma

Since Injury by Trans Athlete, National Review (Apr.

20, 2023), perma.cc/D2W5-QGWE. Mixed Martial

Arts’s first transgender female athlete fractured a biological female’s skull in a fight. Purohit, When

Transgender Fighter Fallon Fox Broke Her Opponent’s

Skull in MMA Fight (Sept. 30, 2021), perma.cc/G876K6KA. The biological female was concussed, fractured

a portion of her skull, and had to receive seven staples

in her head. Id. In early April, a biological female athlete suffered a significant injury from a transgender

female soccer player in Australia. Flower, Parents Upset at ‘Unfair Advantage’ of Trans Woman in Female

Soccer League Will Be Offered Training to Better Understand ‘Lived Experience’ of Transgender Players,

UK Daily Mail (Apr. 2, 2023), perma.cc/H95F-TZUE.

None of these stories show “fair” or “safe” athletic

competitions. And they show why Title IX distinguishes between the two sexes. Yet the Seventh and

Fourth Circuits’ reasoning forbids this commonsensical distinction between the sexes.

CONCLUSION

This Court should grant certiorari.