Amicus Curiae Brief — Bradley Little, Governor of Idaho, et al., Petitioners v. Lindsay Hecox, et al.

NOS. 24-38, 24-43

IN THE

Supreme Court of the United States

BRADLEY LITTLE, GOVERNOR OF IDAHO, ET AL.,

Petitioners,

v.

LINDSAY HECOX, ET AL.,

Respondents

WEST VIRGINIA, ET AL.,

Petitioners,

v.

B. P. J., BY HER NEXT FRIEND AND MOTHER,

HEATHER JACKSON,

Respondent.

On Writs of Certiorari to the United States

Courts of Appeals for the Ninth and Fourth Circuits

___________________________________

AMICUS CURIAE BRIEF OF NC VALUES

INSTITUTE IN SUPPORT OF PETITIONERS

TAMI FITZGERALD

NC VALUES INSTITUTE

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

DEBORAH J. DEWART

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ...............................................................2

ARGUMENT ...............................................................3

I. BOSTOCK

MUST

BE

NARROWLY

INTERPRETED AND APPLIED…………………3

II. BOSTOCK’S

EXTREME

LITERALISM

WARRANTS RESTRAINT …………….………….6

A. Bostock’s

extreme

literalism

confuses

language, leading to absurd results. .............6

B. Bostock’s

extreme

literalism

ignores

biological reality, including physiological

differences between men and women that are

relevant to athletic competition ….. ..............8

C. Bostock’s extreme literalism leads to illogical

results as applied to athletics ….. ...............10

D. Bostock’s extreme literalism leads to a bizarre

rewriting of the legal standard for “facial

discrimination.”….........................................12

ii

E. Bostock’s extreme literalism destroys the

whole concept of women’s sports ….. ...........13

III. BOSTOCK’S APPROACH SHOULD NOT BE

IMPORTED INTO A MUCH DIFFERENT

CONTEXT ………………………………………….14

A. Unlike the individual treatment Bostock

stressed, athletic competitions mandate

consideration of women as a group ….. .......15

B. Bathrooms and ballgames are not

analogous ….. ................................................17

IV. THE UNHINGED EXTENSION OF BOSTOCK

RAISES

CONSTITUTIONAL

CONCERNS

THAT WARRANT JUDICIAL

RESTRAINT ……………………………………….20

A. Bostock

raises

concerns

about

the

Constitution’s separation of powers ….. ......21

B. Bostock raises concerns about democratic

accountability and the rule of law …...........21

V. THE WORD “DISCRIMINATION” BEGS FOR

CLARIFICATION …………………………………22

VI. THE FOURTH CIRCUIT RULING VIOLATES

CONSTITUTIONAL RESTRICTIONS ON THE

USE OF CONGRESSIONAL SPENDING

POWER ……………………………………………..24

CONCLUSION ..........................................................27

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Sch. Bd. of St. Johns Cnty.,

57 F.4th 791 (11th Cir. 2022) .......... 6, 8, 10, 16, 19

Atascadero State Hosp. v. Scanlon,

473 U.S. 234 (1985) ..............................................26

Att’y Gen. v. Mass. Interscholastic Athletic Ass'n,

393 N.E.2d 284 (Mass. 1979) ...............................11

Barnes v. Gorman,

536 U.S. 181 (2002) ..............................................25

Bauer v. Lynch,

812 F.3d 340 (4th Cir. 2016)................................16

B.C. ex rel. C.C. v. Bd. of Educ., Cumberland Reg'l

Sch. Dist., 531 A.2d 1059

(N.J. Super. Ct. App. Div. 1987)..........................12

B.P.J. v. West Virginia State Bd. of Educ.,

2023 U.S. Dist. LEXIS 20427; 2023 WL 1805883

(4th Cir. 2023) ........................................................2

B.P.J. v. West Virginia State Bd. of Educ.,

98 F.4th 542 (4th Cir. 2024) ........... 2, 8, 12, 13, 17,

19, 20, 23, 26, 27

Bostock v. Clayton County,

590 U.S. 644 (2020) ................... 2-18, 20-23, 25, 27

iv

City of L.A. Dep't of Water & Power v. Manhart,

435 U.S. 702 (1978) ................................................8

Cochise Consultancy, Inc. v. United States ex rel.

Hunt,

139 S. Ct. 1507 (2019) ............................................6

Cummings v. Premier Rehab Keller, P.L.L.C.,

596 U.S. 212 (2022) ..............................................26

Doe by & through Doe v. Boyertown Area Sch. Dist.,

897 F.3d 518 (3d Cir. 2018) .................................18

Frontiero v. Richardson,

411 U.S. 677 (1973) ..........................................8, 16

Grimm v. Gloucester Cnty. Sch. Bd.,

972 F.3d 586 (4th Cir. 2020)................. 8, 9, 11, 19,

23, 26, 27

Grove City Coll. v. Bell,

465 U.S. 555 (1984) ..............................................20

Hecox v. Little,

479 F.Supp.3d 930 (D. Idaho 2020) .......................3

Little v. Hecox,

2024 U.S. App. LEXIS 13929 (9th Cir. 2024) ..1, 3,

5, 7, 12

Medina v. Planned Parenthood,

222 L. Ed. 2d 567 (2025) ................................25, 26

Meriwether v. Hartop,

992 F.3d 492 (6th Cir. 2021)..................................5

v

Michael M. v. Superior Ct.,

450 U.S. 464 (1981) ................................................9

Milliken v. Bradley,

418 U.S. 717 (1974) ..............................................21

Nat'l Fed'n of Indep. Bus. v. Sebelius (“NFIB”),

567 U.S. 519 (2012) ........................................25, 27

Pac. Shores Props., LLC v. City of Newport Beach,

730 F.3d 1142 (9th Cir. 2013)..............................12

Parents for Priv. v. Barr,

949 F.3d 1210 (9th Cir. 2020)..............................18

Pelcha v. MW Bancorp, Inc.,

988 F.3d 318 (6th Cir. 2021)..................................5

Peltier v. Charter Day Sch., Inc.,

37 F.4th 104 (4th Cir. 2022) (en banc) ................17

Pennhurst State School and Hospital v. Halderman,

451 U.S. 1 (1981) ...................................... 25, 26, 27

Prescott v. Rady Child.'s Hosp. San Diego,

265 F. Supp. 3d 1090 (S.D. Cal. 2017) ..................5

Reno v. Bossier Parish Sch. Bd.,

528 U.S. 320 (2000) ................................................6

Sch. of the Ozarks, Inc. v. Biden,

41 F.4th 992 (8th Cir. 2022) ..................................5

Tuan Anh Nguyen v. INS,

533 U.S. 53 (2001) ..................................................9

vi

United States v. Skrmetti,

145 S. Ct. 1816 (2025) ............................................5

United States v. Virginia,

518 U.S. 515 (1996) ..........................................8, 20

Williams v. Sch. Dist. of Bethlehem,

998 F.2d 168 (3d Cir. 1993) .................................14

Constitutional Provisions

U.S. Const., art. 1, § 8, cl.1

(“Spending Clause”) ............................................24, 25

Statutes

Title VII, 42 U.S.C. § 2000e et seq. ...... 3-7, 15, 16, 23

Title IX, 20 U.S.C. §§ 1681-1688 ................. 2, 4, 6-10,

13-24, 27

20 U.S.C. § 1681 ..........................................................9

20 U.S.C. § 1681(a)....................................................24

20 U.S.C. § 1686 ............................................ 10, 11, 19

N.C. Fairness in Women’s Sports Act ........................1

W. Va. Code § 18-2-25d ...............................................2

W. Va. Code § 18-2-25d(b)(1) ......................................8

vii

Other Authorities

34 C.F.R. § 106.33 ...............................................10, 19

34 C.F.R. § 106.34 .....................................................10

34 C.F.R. § 106.41 .....................................................27

34 C.F.R. § 106.41(b) ...........................................10, 26

34 C.F.R. § 106.41(c) .................................................13

Stephen Breyer,

Active Liberty (Vintage Books 2006) ........................22

Equal Rights Amendment ........................................14

Kim Forde-Mazrui, Article: Why the Equal Rights

Amendment Would Endanger Women’s Equality:

Lessons From Colorblind Constitutionalism,

16 Duke Const. Law J. &

Pub. Pol'y 1 (Spring 2021) ..............................14,20

Jacqualyn Gillen, Comment: Striking the Balance of

Fairness and Inclusion: The Future of Women’s Sports

After the Supreme Court’s Landmark Decision in

Bostock v. Clayton County, GA, 28 Jeffrey S. Moorad

Sports Law Journal 415 (2021) ......................... 2-3

Rena M. Lindevaldsen, Article: Bostock v. Clayton

County: A Pirate Ship Sailing Under a Textualist

Flag, 33 Regent U.L. Rev. 39 (2020-2021) ............5

viii

Memorandum from Pamela Karlan, Application of

Bostock v. Clayton County to Title IX of the

Education Amendments of 1972

(March 26, 2021) ..................................................17

Rachel N. Morrison, Article: Gender Identity Policy

Under the Biden Administration,

23 Federalist Soc'y Rev. 85 (2022) ............ 9, 10, 13

Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial

Assistance: Sex-Related Eligibility Criteria for Male

and Female Athletic Teams, 88 Fed. Reg. 22860

(proposed Apr. 13, 2023)

(to be codified at 34 C.F.R. § 106.41) ..................27

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

Requirements Under Title IX of the Education

Amendments of 1972,

https://www2.ed.gov/about/offices/list/ocr/docs/

interath.html (last modified Jan. 10, 2020) ........10

Michael E. Rosman, Article: Gender Identity, Sports,

and Affirmative Action: What’s Title IX Got to Do With

It?, 53 St. Mary's L. J. 1093 (2022) ...............11, 16,

17, 23, 24

The Federalist No. 47................................................21

https://www.dailywire.com/news/trans-athleteseverely-injures-girls-volleyball-player-with-spikedistrict-forfeits-games-for-girls-safety

(last visited July 22, 2025) ..........................................1

1

INTEREST OF AMICUS CURIAE1

Amicus curiae urges this Court to reverse the

Fourth and Ninth Circuit rulings.

NC Values Institute is a North Carolina nonprofit

corporation established to preserve and promote

faith, family, and freedom through public policies that

protect constitutional liberties, including the right to

live and work according to conscience and faith. See

https://ncvi.com.

The State of North Carolina has passed the

Fairness in Women’s Sports Act (effective August 16,

2023), a statute similar to the West Virginia Save

Women’s Sports Act at issue in this case. The

legislation protects females from being forced to play

against biological males on sports teams, which not

only cheats them out of equal opportunities but can

lead to serious injuries. In late 2022, a female high

school volleyball player in Cherokee County, NC

suffered severe head and neck injuries, resulting in

long-term concussion symptoms, when a biological

male spiked a ball in her face during a return play.2

1 Amicus curiae certifies that no counsel for a party authored this

brief in whole or in part and no person or entity, other than

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

contribution to its preparation or submission.

https://www.dailywire.com/news/trans-athlete-severelyinjures-girls-volleyball-player-with-spike-district-forfeitsgames-for-girls-safety (last visited July 22, 2025).

2

2

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

The decisions of the Fourth (B.P.J. v. West

Virginia) and Ninth (Hecox v. Little) Circuits are

egregiously wrong and should be reversed. The Court

is now positioned to address both the Title IX and the

Equal Protection questions raised by the West

Virginia and Idaho state laws at issue.

The West Virginia Act, passed by the state

legislature in 2021, requires public schools to

designate sports teams “based on biological sex” and

prohibits biological males from participating on teams

“designated for females, women, or girls.” W. Va. Code

§ 18-2-25d. The District Court correctly held there

was no violation of Equal Protection or Title IX, 20

U.S.C. §§ 1681-1688, because “separating athletic

teams based on biology is substantially related to the

state's important interest in providing equal athletic

opportunities to females, who would otherwise be

displaced if required to compete with males.” B.P.J. v.

West Virginia State Bd. of Educ., 2023 U.S. Dist.

LEXIS 20427 *7; 2023 WL 1805883 (4th Cir. 2023)

(emphasis added). This Court’s opinion in Bostock v.

Clayton County, 590 U.S. 644 (2020) does not require

otherwise. Athletic teams are not required to be

separated based on gender identity.

Idaho lawmakers passed a similar bill that made

Idaho “the first state to ban transgender athletes from

participating on girls' sports teams at the primary,

secondary, and college levels.” Jacqualyn Gillen,

Comment: Striking the Balance of Fairness and

Inclusion: The Future of Women’s Sports After the

3

Supreme Court’s Landmark Decision in Bostock v.

Clayton County, GA, 28 Jeffrey S. Moorad Sports Law

Journal 415, 419-420 (2021). A federal judge issued a

temporary injunction. Hecox v. Little, 479 F.Supp.3d

930, 988 (D. Idaho 2020). The Ninth Circuit upheld

the injunction, holding the Idaho law likely violated

the rights of transgender student athletes under the

Equal Protection Clause of the Fourteenth

Amendment. Little v. Hecox, 104 F.4th 1061, 1080-81

(9th Cir. 2024).

This Court's decision in Bostock “ushers in new

threats to the safety, well-being, and constitutional

rights of many Americans.” Rena M. Lindevaldsen,

Article: Bostock v. Clayton County: A Pirate Ship

Sailing Under a Textualist Flag, 33 Regent U.L. Rev.

39 (2020-2021). This Court’s review will help ensure

that lower courts exercise judicial restraint rather

than mechanically extending Bostock to other

unrelated contexts, such as sports.

ARGUMENT

I.

BOSTOCK

MUST

BE

NARROWLY

INTERPRETED AND APPLIED.

Bostock’s reach should be limited to what this

Court did decide—not what it did not decide. This

case was a shocking departure from the

understanding of the Congress that enacted Title VII,

42 U.S.C. § 2000e et seq., and the courts that

interpreted it over several decades of litigation. The

majority and dissenting opinions all acknowledged

there were many issues the Court did not address.

Lower courts should not hastily employ Bostock as a

4

band-aid to fix every perceived “discrimination” based

on sexual orientation or gender identity. In the

athletic arena, the results are illogical, absurd, and

patently unfair to women.

Bostock’s implications are staggering. The

employers in that case rightly worried that the

Court’s decision would “sweep beyond Title VII to

other federal or state laws that prohibit sex

discrimination,” including private facilities and dress

codes. Bostock, 590 U.S. at 681. “But none of these

other laws are before us,” this Court assured them,

and “we do not purport to address bathrooms,

locker rooms, or anything else of the kind.” Ibid.

Those words now ring hollow. “Anything else” is now

before the Court and must be addressed.

Title VII does not stand alone, nor does Title IX.

There are “[o]ver 100 federal statutes” that “prohibit

discrimination because of sex.” Bostock, 590 U.S. at

724 (Alito, J., dissenting). It was not difficult to

predict that private facilities would be next on the

chopping block. “The Court may wish to avoid this

subject, but it is a matter of concern to many people

who are reticent about disrobing or using toilet

facilities in the presence of individuals whom they

regard as members of the opposite sex.” Id. at 725

(Alito, J., dissenting). Such concerns were hardly

speculative, considering prior circuit court decisions

and the 2016 advisory from the Department of Justice

that purported to mandate public school bathroom

policies based on gender identity. Id. at 726.

Additionally, Justice Alito warned of a multitude of

potential applications, with women’s sports leading

the list. “The effect of the Court’s reasoning may be to

5

force young women to compete against students who

have a very significant biological advantage . . . .”

Ibid. Additional threats include housing (see Sch. of

the Ozarks, Inc. v. Biden, 41 F.4th 992 (8th Cir.

2022)), employment by religious organizations,

healthcare,3 sex reassignment procedures,4 freedom

of speech (Meriwether v. Hartop, 992 F.3d 492 (6th

Cir. 2021)), and other constitutional claims such as

Equal Protection—as in this case and Hecox v. Little.

Bostock, 590 U.S. at 728-729 (Alito, J., dissenting).

These concerns are very troubling and no longer

speculative in view of post-Bostock judicial

developments.

One Sixth Circuit ruling, citing this Court’s

caution about the many laws that were not before

them, properly declined to extend Bostock’s rationale,

explaining that “the rule in Bostock extends no

further than Title VII and does not stretch to the

ADEA.” Pelcha v. MW Bancorp, Inc., 988 F.3d 318,

324 (6th Cir. 2021). This Court should confirm this

reasoning and limit Bostock’s holding.

3 See Lindevaldsen, A Pirate Ship, 33 Regent U.L. Rev. at 74,

citing a district court holding that a hospital staff's refusal to use

preferred pronouns violates the Affordable Care Act. Prescott v.

Rady Child.'s Hosp. San Diego, 265 F. Supp. 3d 1090, 1098-100

(S.D. Cal. 2017).

4 This Court recently upheld the Tennessee statute challenged

in United States v. Skrmetti, 145 S. Ct. 1816 (2025), an

important law protecting minor children from dangerous sex

transition procedures that may cause irreparable harm.

6

II. BOSTOCK’S

EXTREME

WARRANTS RESTRAINT.

LITERALISM

Legal activists have begun using Bostock as a

springboard to coerce sweeping social engineering in

other unrelated contexts. Advocates demand that

courts reinterpret a broad swath of antidiscrimination laws to include sexual orientation and

gender identity within the definition of “sex.” A fair

reading of Bostock does not warrant these radical

legal maneuvers. A coherent limiting principle is

needed to distinguish these concepts and ensure that

the word “sex” is not stretched beyond recognition.

The sole question before the Bostock Court was

whether an employer discriminated “because of sex”

by taking action against an employee “simply for

being homosexual or transgender.” Bostock, 590 U.S.

at 681. This Court expressly disclaimed deciding

whether “other policies and practices might or might

not qualify as unlawful discrimination,” even under

Title VII (id.), let alone Title IX. Lower courts have

failed to heed this warning.

A. Bostock’s extreme literalism confuses

language, leading to absurd results.

“[C]ourts must avoid interpretations that would

attribute different meanings to the same phrase or

word in all but the most unusual of statutory

circumstances.” Adams v. Sch. Bd. of St. Johns Cnty.,

57 F.4th 791, 814 (11th Cir. 2022) (cleaned up); see

Cochise Consultancy, Inc. v. United States ex rel.

Hunt, 139 S. Ct. 1507, 1512 (2019); Reno v. Bossier

Parish Sch. Bd., 528 U.S. 320, 329 (2000).

7

The

Bostock

majority

admitted

that

“homosexuality and transgender status are distinct

concepts from sex.” 590 U.S. at 669. Neither concept

is “tied to either of the two biological sexes.” Id. at 689

(Alito, J., dissenting). Yet this Court essentially

treated them as synonymous. In addition to the

massive public policy implications, “the potentially

greater concern” with Bostock’s approach is “its

characterization as a case decided on a plain meaning

interpretation.” Lindevaldsen, A Pirate Ship, 33

Regent U.L. Rev. at 78. The “plain meaning”

camouflage obscures this Court’s failure to consider

dictionary and medical definitions, common

understanding, prior judicial rulings, or various

statutes and Executive Orders. Id. Chaos ensued.

What Title VII prohibits—and presumably Title

IX as well—is “discrimination because of sex itself, not

everything that is related to, based on, or defined with

reference to, sex.” Bostock, 590 U.S. at 694 (Alito, J.,

dissenting). It is inconceivable, for example, that

federal law would prohibit an employer’s

consideration of an employee’s record of sexual

harassment, sexual assault, or sexual violence. Ibid.

Would an employer be required to hire a registered

sex offender for a position working with young

children? Bostock’s extreme literalism does not

immediately rule out such results and should not be

replicated in the context of sports.

8

B. Bostock’s extreme literalism ignores

biological

reality,

including

physiological differences between men

and women that are relevant to athletic

competition.

The West Virginia Act, like other comparable

state laws, is based on relevant physiological

differences between biological males and females.

Accordingly, “[t]he Act declares a person's sex is

defined only by their ‘reproductive biology and

genetics at birth.’" W. Va. Code § 18-2-25d(b)(1).

Bostock began with the correct assumption that

“sex” “refer[s] only to biological distinctions between

male and female.” 590 U.S. at 655. "[S]ex, like race

and national origin, is an immutable characteristic

determined solely by the accident of birth." Adams, 57

F.4th at 807, quoting Frontiero v. Richardson, 411

U.S. 677, 686 (1973). When Title IX was enacted,

"virtually every dictionary definition of 'sex' referred

to the physiological distinctions between males and

females." B.P.J. v. W. Va. State Bd. of Educ., 98 F.4th

542, 574 (4th Cir. 2024) (Agee, J., dissenting), quoting

Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 632

(4th Cir. 2020) (Niemeyer, J., dissenting) (collecting

definitions). This “biological reality” was “repeatedly

acknowledged” over the years, “that men and women

fall into two distinct groups, most notably

distinguishable by their reproductive capacities.”

Lindevaldsen, A Pirate Ship, 33 Regent U.L. Rev. at

56, citing City of L.A. Dep't of Water & Power v.

Manhart, 435 U.S. 702, 202-08 (1978); United States

v. Virginia, 518 U.S. 515, 588 (1996).

9

"To fail to acknowledge even our most basic

biological differences . . . risks making the guarantee

of equal protection superficial, and so disserving it."

Tuan Anh Nguyen v. INS, 533 U.S. 53, 73 (2001). It

does not require a medical degree to understand that

“young men and young women are not similarly

situated with respect to the problems and the risks of

sexual intercourse. Only women may become

pregnant." Michael M. v. Superior Ct., 450 U.S. 464,

471 (1981); see Lindevaldsen, A Pirate Ship, 33

Regent U.L. Rev. at 56. Bostock’s promising initial

reassurance now rings hollow as litigants import its

ultimate rationale and conclusions into other

contexts. The relevance of physiological differences

varies from one context to another. Separate

restrooms for male and female are reasonable and

constitutional (even though courts have given short

shrift to the privacy concerns) while separate

restrooms for black and white races are not, “because

there are biological differences between the two sexes

that are relevant with respect to restroom use in a

way that a person's skin color is demonstrably not.”

Grimm, 972 F.3d at 535 (Niemeyer, J., dissenting).

Similarly, biological differences between the two

sexes are relevant with respect to sports participation

“in a way that a person's skin color is demonstrably

not.” Bostock is not a one-size-fits-all test that can be

blindly applied in every context.

The text and regulations for Title IX “repeatedly

recognize a biological binary of male and female.”

Rachel N. Morrison, Article: Gender Identity Policy,

Gender

Identity

Policy

Under

the

Biden

Administration, 23 Federalist Soc'y Rev. 85, 115

(2022); see 20 U.S.C. § 1681 ("one sex," "both sexes,"

10

"other sex," "boy or girl conferences"); 34 C.F.R. §

106.34 ("one sex," "boys and girls"); id. § 106.41 ("one

sex," "both sexes," "other sex"); 20 U.S.C. § 1686

(providing for sex-segregated living facilities); 34

C.F.R. § 106.33 (separate toilet, locker room, and

shower facilities). Although “Title IX's statutory

language says nothing specifically about sports . . . the

Title IX regulations that apply to sports . . . mirror the

blanket-rule-with-specific-exception framework that

Title IX statutorily applies to living facilities.” Adams,

57 F.4th at 818 (Lagoa, J., concurring). These

regulations provide explicitly for sex-segregated

sports "where selection for such teams is based upon

competitive skill or the activity involved is a contact

sport." 34 C.F.R. § 106.41(b). It could hardly be more

clear, and Title IX was initially “lauded for

dramatically increasing athletic opportunities for

women and girls” by effectively accommodating the

"athletic interests and abilities of male and female

students.” Morrison, Gender Identity Policy Under the

Biden Administration, 23 Federalist Soc'y Rev. at

123, citing Office for Civil Rights, U.S. Dep't of Educ.,

Requirements Under Title IX of the Education

Amendments of 1972.5

C. Bostock’s extreme literalism leads to

illogical results as applied to athletics.

Since Title IX regulations explicitly permit sex

separation for private facilities, what are the

implications if “sex,” “sexual orientation,” and

“gender identity” are treated as interchangeable

https://www2.ed.gov/about/offices/list/ocr/docs/interath.html

(last modified Jan. 10, 2020).

5

11

terms? Should separate facilities be provided for

homosexual women and heterosexual women? Should

separate facilities be provided for men who identify as

women, or for women who identify as men? Does the

word “sex” have any coherent meaning after Bostock?

Illogical results and absurdities abound.

Even if the extreme literalism employed in

Bostock were the correct approach, it is risky to

import it into other unrelated contexts. As Judge

Niemeyer pointed out in Grimm, the majority’s

statement—that the provision for segregated

bathrooms “cannot override the statutory prohibition

against discrimination on the basis of sex" (emphasis

added)—overlooks the express provision “in the

statute” allowing schools to "maintain[] separate

living facilities for the different sexes." Grimm, 972

F.3d at 635 (Niemeyer, J., dissenting); see 20 U.S.C. §

1686.

Bostock’s approach spawns a multitude of

confusion and questions. What about a biological male

who is not transgender playing on the women’s team?

This second possibility has already been addressed.

Att’y Gen. v. Mass. Interscholastic Athletic Ass'n, 393

N.E.2d 284, 290, 296 (Mass. 1979) (holding that

exclusion of males from girls' teams is prohibited

under state equal rights amendment). After this

ruling, the Executive Director of the Massachusetts

Interscholastic Athletic Association testified to the

disastrous results, allowing male dominance and

displacing girls in sports where they previously

participated—much like what is happening now as a

consequence of transgender ideology. Michael E.

Rosman, Article: Gender Identity, Sports, and

12

Affirmative Action: What’s Title IX Got to Do With It?,

53 St. Mary's L. J. 1093, 1140 (2022). See B.C. ex rel.

C.C. v. Bd. of Educ., Cumberland Reg'l Sch. Dist., 531

A.2d 1059, 1063 (N.J. Super. Ct. App. Div. 1987)

(upholding athletic association’s regulation barring

boys from participating in girls’ sports, because it

would risk injury to the girls and discourage their

participation).

D. Bostock’s extreme literalism leads to a

bizarre rewriting of the legal standard

for “facial discrimination.”

The Fourth Circuit concluded that the

“undisputed purpose” and effect of the Act’s

definitions was to exclude transgender “girls”

(biological boys who identify as girls) from girls’ sports

teams by excluding them from the definition of

“female.” B.P.J., 98 F.4th at 556. The court then

concluded that this is “a facial classification based on

gender identity.” Ibid. But “[t]he Act does not facially

discriminate based on transgender status”—it simply

and reasonably “places athletes on sports teams based

on their biological sex.” Id. at 569 (Agee, J.,

dissenting). The effect is “irrelevant to a facial

challenge under the Equal Protection Clause.” Id. at

570. As Petitioners observe, “distinctions drawn with

an eye towards biological sex” in the Fourth Circuit

“are assumed to target those who self-identify with a

different gender.” Pet. 27. In Hecox, similarly, the

Ninth Circuit held that Idaho’s use of “biological sex”

in its statute functioned as a form of “proxy

discrimination.” Little v. Hecox, 104 F.4th at 1078,

quoting Pac. Shores Props., LLC v. City of Newport

Beach, 730 F.3d 1142, 1160 n.23 (9th Cir.

13

2013). Thus, using the “seemingly neutral criteria” in

the statute was “constructively, facial discrimination

against the disfavored group.” Ibid. (emphasis added).

This

inexplicable

revision

of

“facial

discrimination” seems like something from a parallel

legal universe where words can be bent to mean

whatever the writer desires—even the precise

opposite of reality.

E. Bostock’s extreme literalism destroys the

whole concept of women’s sports.

The expanded application of Bostock is on a

collision course with the very purpose of Title IX and

its provision for sex-specific sports—to ensure equal

athletic opportunities for women. “It is no

understatement to say that the inclusion of

transgender girls on girls' teams will drive many

biological girls out of sports and eviscerate the very

purpose of Title IX.” B.P.J., 98 F.4th at 573 (Agee, J.,

dissenting), citing Williams v. Sch. Dist. of Bethlehem,

998 F.2d 168, 175 (3d Cir. 1993) (stating that "it

would require blinders to ignore that the motivation

for" enacting Title IX and its sports regulations was

to promote opportunities for girls in sports). Allowing

biological males to participate undermines not only

the purpose of Title IX but the very idea of women’s

sports. Morrison, Gender Identity Policy Under the

Biden Administration, 23 Federalist Soc'y Rev. at

124; 34 C.F.R. § 106.41(c). Ironically, it is precisely

because of sex, i.e., the physiological differences

between men and women that cannot be blithely

dismissed, that sex-separated athletic teams and

14

competitions are necessary and explicitly permissible

under federal law.

One commentator explained that if the Equal

Rights Amendment were

ever passed and the

government adopted an anti-classification approach,

viewing the classification itself as the constitutional

evil, rather than the subordination of a protected

group, “[t]he effect would be that laws and

government policies designed to improve women's

opportunities would likely be subject to strict

scrutiny—because they necessarily take account of

sex—and likely struck down.” Kim Forde-Mazrui,

Article: Why the Equal Rights Amendment Would

Endanger Women’s Equality: Lessons From

Colorblind Constitutionalism, 16 Duke J. Const. Law

& Pub. Pol'y 1, 35 (Spring 2021). Sex classification in

“extracurricular activities such as sports” would be

vulnerable under strict scrutiny. Id. at 38. That is

essentially what Bostock has already foisted upon us,

erasing distinctions between male and female and

allowing transgender rights to run roughshod over all

others. The result is to destroy the equal

opportunities Title IX was enacted to provide, using

“gender identity” to create a severe disadvantage for

biological women and an unfair advantage for

biological men who identify as women. This is blatant

inequality.

III. BOSTOCK’S APPROACH SHOULD NOT BE

IMPORTED INTO A MUCH DIFFERENT

CONTEXT.

One of the problems with cases like Bostock,

where courts fashion legal rules never contemplated

15

or considered by the original legislative body, is the

concerns that arise when the newly minted rule is

imported into a much different context. Title VII

regulates

discrimination

in

employment—not

education, not access to bathrooms or other private

facilities, and not athletic competitions. These

contexts highlight specific differences between male

and female that are not necessarily relevant in every

employment relationship. It is even more dangerous

to play “leap frog” with a novel judicial fiat—first

applying Bostock’s rationale to bathrooms with a

blind eye to privacy and then leaping to ballgames,

where obvious physiological differences have drastic

and even dangerous consequences. The results of this

“leap frog” game are astonishing, “turn[ing] Title IX

on its head and revers[ing] the monumental work” the

statutory scheme has accomplished. B.P.J, 98 F.4th

at 572 (Agee, J., dissenting).

A. Unlike the individual treatment Bostock

stressed, athletic competitions mandate

consideration of women as a group.

Bostock concluded that “an employer cannot

escape liability” under Title VII “by demonstrating

that it treats males and females comparably as

groups.” 590 U.S. at 665. The Court explained that

“Congress’s key drafting choices—to focus on

discrimination against individuals and not merely

between groups and to hold employers liable whenever

sex is a but-for cause of the plaintiff ’s injuries—

virtually guaranteed that unexpected applications

would emerge over time.” Id. at 680 (emphasis added).

This generally makes sense; employers hire

individual employees, not entire groups. But even in

16

hiring employees, “at least one court has said that an

employer does not violate Title VII by having separate

physical requirements for men and women.” Rosman,

Gender Identity, Sports, 53 St. Mary's L. J. at 11041105. In Bauer v. Lynch, the Fourth Circuit validated

“the FBI’s gender-normed standards for physical

fitness for its trainees” (id. at 1105), acknowledging

that “the physiological differences between men and

women impact their relative abilities to demonstrate

the same levels of physical fitness.” 812 F.3d 340, 351

(4th Cir. 2016).

Bostock admitted that “[t]he employers might be

onto something if Title VII only ensured equal

treatment between groups of men and women.”

Bostock, 590 U.S. at 671 (emphasis added). In

athletics, that is precisely where the concerns arise.

Allowing biological males to compete on women’s

teams virtually guarantees inequality at the group

level, “invidiously relegating the entire class of

females to inferior legal status without regard to the

actual capabilities of its individual members."

Frontiero, 411 U.S. at 686-87. Under the Fourth

Circuit’s approach, Title IX "provide[s] more

protection against discrimination on the basis of

transgender status . . . than it would against

discrimination on the basis of sex." Id. at 580, quoting

Adams, 57 F.4th at 814. Consider also that “[t]he logic

of the Court’s decision could even affect professional

sports.” Bostock, 590 U.S. at 728 (Alito, J., dissenting)

(emphasis added). Bostock did not address that

situation and indeed could not because none of the

parties were professional athletes. Under Title IX,

there are express provisions for sex segregation that

do protect entire groups of men and women. Indeed,

17

“if one accepts the propriety of sex segregation,” as

Title IX does, “it becomes quite difficult to identify a

case of individual sex discrimination.” Rosman,

Gender Identity, Sports, 53 St. Mary’s L. J. at 1110.

The provision of separate but comparable athletic

teams for men and women is a commonsense solution

to ensure equal treatment at both levels—groups and

the individuals that comprise them.

In contrast to the clear protection Title IX

provides for groups—biological women specifically—

the Fourth Circuit explicitly contended that "Title IX

protects the rights of individuals, not groups, and does

not ask whether the challenged policy treats [one sex]

generally less favorably than [the other]." B.P.J., 98

F.4th at 559 (emphasis added), Peltier v. Charter Day

Sch., Inc., 37 F.4th 104, 130 (4th Cir. 2022) (en banc).

B. Bathrooms

analogous.

and

ballgames

are

not

“Gender identity . . . has nothing to do with sports.

It does not change a person's biology or physical

characteristics. It does not affect how fast someone

can run or how far they can throw a ball. Biology

does.” B.P.J., 98 F.4th at 568 (Agee, J., dissenting).

In this troubling game of legal “leap frog,” courts

and even administrative agencies6 have radically

6 For example, the Civil Rights Division of the Department of

Justice issued a memorandum claiming that Title IX protects

transgender students from discrimination based on gender

identity in the context of single-sex restrooms. Memorandum

from Pamela Karlan, Application of Bostock v. Clayton County to

Title IX of the Education Amendments of 1972 (March 26, 2021).

18

reinterpreted the simple word “sex” through a

breathtaking expansion of Bostock. The first frontier

was single-sex bathrooms.

In some cases, persons who are not transgender

assert privacy rights to challenge policies that allow

transgenders to use facilities that do not correspond

with biological sex. Some courts have found protransgender policies permissible but not necessarily

mandatory. Doe by & through Doe v. Boyertown Area

Sch. Dist., 897 F.3d 518, 534-535 (3d Cir. 2018)

(School District may allow use of bathrooms and

locker rooms that align with gender identity); Parents

for Priv. v. Barr, 949 F.3d 1210, 1227 (9th Cir. 2020)

(sex-segregated bathrooms permissible but not

mandatory). In Barr, the Ninth Circuit reasoned that

the statute does not “explicitly state, or even suggest,

that schools may not allow transgender students to

use the facilities that are most consistent with their

gender identity.” Id.

In other cases, transgender persons assert the

right to use the bathroom corresponding to “gender

identity” rather than sex. Ignoring the express

statutory language of Title IX and its regulations,

litigants challenge the use of biological sex as the sole

criteria for separation of private facilities. Perhaps

the most prominent of these cases is Grimm, which

“join[ed] a growing consensus of courts in holding”

that “equal protection and Title IX can protect

transgender students from school bathroom policies

that prohibit them from affirming their gender.” 972

F.3d at 593. Parroting Bostock, 590 U.S. at 660, the

Fourth Circuit reasoned that a discriminator

“necessarily refer[s] to the individual's sex to

19

determine incongruence between sex and gender,

making sex a but-for cause for the discriminator's

actions.” Grimm, 972 F.3d at 616. Judge Niemeyer

pointed out the statutory allowance for "separate

living facilities for the different sexes," 20 U.S.C. §

1686, including "toilet, locker room, and shower

facilities," 34 C.F.R. § 106.33. Grimm, 972 F.3d at 628

(Niemeyer, J., dissenting). The majority departed

from the “commonplace and universally accepted”

practice “across societies and throughout history” to

separate “on the basis of sex” private facilities

designed for use by multiple persons at one time. Id.

at 634. Abundant case law affirms the right to bodily

privacy, which is “broader than the risks of actual

bodily exposure” and extends to “intrusion created by

mere presence.” Id. at 633-634 (collecting cases)

(emphasis in original). The shocking result of the

Fourth Circuit’s ruling is that it “renders on a larger

scale any separation on the basis of sex nonsensical.”

Id. at 628. "There simply is no limiting principle to

cabin [the Grimm majority's] definition of 'sex' to ...

bathrooms under Title IX, as opposed to ... the

statutory and regulatory carve-outs for living

facilities, showers, and locker rooms." B.P.J., 98 F.4th

at 579 (Agee, J., dissenting), citing Adams, 57 F.4th

at 818.

Radical reinterpretations began with bathrooms,

where massive privacy concerns are ignored, but then

leaped into the sports arena. Athletics involves

physiological differences between men and women

that are not implicated in bathroom cases. In both

contexts, courts have “ensure[d] that policy

preferences prioritizing transgender persons take

precedence.” B.P.J., 98 F.4th at 580 (Agee, J.,

20

dissenting). Bostock does not require or even support

these bizarre results, as this Court explicitly declined

to address bathrooms or any other issues beyond

employment per se. "Physical differences between

men and women" are "enduring" and render "the two

sexes ... not fungible." United States v. Virginia, 518

U.S. at 533, 550 n.19. Even a commentator

sympathetic to transgender rights admits that

“[c]ircumstances that involve strength and other

athletic differences . . . might justify sex-exclusive

sports.” Forde-Mazrui, Why the Equal Rights

Amendment Would Endanger Women’s Equality, 16

Duke J. Const. Law & Pub. Pol'y at 39.

IV. THE

UNHINGED

EXTENSION

OF

BOSTOCK

RAISES

CONSTITUTIONAL

CONCERNS THAT WARRANT JUDICIAL

RESTRAINT.

Lower courts should not rush to expand Bostock’s

“novel and creative argument” that “because of sexual

orientation” and “because of sex” are “not separate

categories of discrimination after all.” Bostock, 590

U.S. at 783 (Kavanaugh, J., dissenting). Bostock upset

decades of precedent and expectation. Its holding

should be carefully confined and not expanded to new

territory. “The interpretation of statutes as important

as Title IX should not be subjected so easily to shifts

in policy by the executive branch.” Grove City Coll. v.

Bell, 465 U.S. 555, 603 (1984) (Brennan, J.,

concurring in part).

21

A. Bostock raises concerns about the

Constitution’s separation of powers.

Bostock did an “end-run around the bedrock

separation-of-powers principle that courts may not

unilaterally rewrite statutes.” Bostock, 590 U.S. at

783 (Kavanaugh, J., dissenting). Lower courts should

not repeat this error and perpetrate an even greater

distortion of law, logic, and reality by “[u]surping the

constitutional authority of the other branches.” Id. at

684 (Alito, J., dissenting). Such joining of judge and

legislator is a serious threat to life and liberty: “Were

the power of judging joined with the legislative, the

life and liberty of the subject would be exposed to

arbitrary control, for the judge would then be the

legislator.” The Federalist No. 47, at 326 (citing

Montesquieu); see Bostock, 590 U.S. at 782

(Kavanaugh, J., dissenting), quoting James Madison.

B. Bostock

raises

concerns

about

democratic accountability and the rule

of law.

Title IX concerns public education, a matter

entrusted primarily to state and local governments.

Local control over public education is "deeply rooted"

in American tradition. Indeed, "local autonomy has

long been thought essential both to the maintenance

of community concern and support for public schools

and to quality of the educational process." Milliken v.

Bradley, 418 U.S. 717, 741-742 (1974). Judicial

restraint should characterize any sort of federal

intervention. Extension of Bostock would remove

decisions about education from the elected

representatives closest to the people and most

22

responsive to their concerns, depriving individuals of

their liberty to participate in a contentious matter of

public concern. "The United States is a nation built

upon principles of liberty. That liberty means not only

freedom from government coercion but also the

freedom to participate in the government itself."

Stephen Breyer, Active Liberty (Vintage Books 2006),

at 3.

Justices Alito and Kavanaugh both recognized

this concern. “If the Court had allowed the legislative

process to take its course, Congress would have had

the opportunity to consider competing interests,” but

instead “the Court has greatly impeded—and perhaps

effectively ended—any chance of a bargained

legislative resolution.” Bostock, 590 U.S. at 725 (Alito,

J., dissenting). Justice Kavanaugh lamented the

negative impact on “the rule of law and democratic

accountability . . . when a court adopts a hidden or

obscure interpretation of the law, and not its ordinary

meaning.” Id. at 785 (Kavanaugh, J., dissenting). This

extreme literalism “deprives the citizenry of fair

notice of what the law is.” Ibid. Lower courts should

not replicate this questionable approach in litigating

Title IX.

V. THE WORD “DISCRIMINATION”

FOR CLARIFICATION.

BEGS

In Bostock, this Court asked and then answered

its own question: “What did ‘discriminate’ mean in

1964? As it turns out, it meant then roughly what it

means today: ‘To make a difference in treatment or

favor (of one as compared with others).’” Bostock, 590

U.S. at 657. But this quick question-answer only

23

invites further inquiry: Is every “difference in

treatment or favor” unlawful discrimination? Is every

such difference invidious, subject to legal prohibition?

This question is critical, “[y]et, the definition of

discrimination gets very little attention in recent Title

IX literature, particularly in comparison with words

like sex, gender identity, female, male.” Rosman,

Gender Identity, Sports, 53 St. Mary's L. J. at 1100.

The same statutory language is used by some to argue

that transgender participation is mandatory, while

others assert it is prohibited. Id. at 1096.

Here, the Fourth Circuit claimed to have “already

held that discrimination based on gender identity is

discrimination ‘on the basis of sex’ under Title IX,”

citing Grimm, 972 F.3d at 616 and concluding that

“this Act discriminates based on gender identity.”

B.P.J., 98 F.4th at 563. Discrimination purportedly

“mean[s] treating [an] individual worse than others

who are similarly situated.” Id. at 563, quoting

Grimm, 927 F.3d at 618 (internal quotation marks

omitted) (emphasis added) (quoting Bostock, 590 U.S.

at 657). The court goes on to erroneously find that

B.P.J., a biological male, is similarly situated to

biological girls, and then “incorrectly determines that

the Act discriminates against transgender athletes on

its face.” B.P.J., 98 F.4th at 567 (Agee, J., dissenting

in part and concurring in part). But how exactly is a

biological male who identifies as a female “in all

relevant respects” like a biological female and

therefore “similarly situated”?

It arguably undermines Title VII (and similarly

Title IX) to include gender identity in the scope of “sex

discrimination,” “because the employee would be

24

asking for protection not because he or she is a

member of one of the two identifiable groups but

because he or she desires to switch from one group to

another.” Lindevaldsen, A Pirate Ship, 33 Regent U.L.

Rev. at 62. This effectively allows an individual to

claim simultaneous membership in both sexes (one

according to biology, the other by subjective

identification) and then “assert a discrimination

claim either as a man or as a woman.” Id. at 63. Could

not such favoritism itself be deemed “discrimination”?

As one commentator observes, the idea that nondiscrimination “requires a set-aside for biological

females,” due to their physiological disadvantage,

differs from “virtually every other concept of nondiscrimination.” Rosman, Gender Identity, Sports, 53

St. Mary's L. J. at 1096. Surely we have fallen down

the rabbit hole in Alice’s Wonderland.

VI. THE

FOURTH

CIRCUIT

RULING

VIOLATES

CONSTITUTIONAL

RESTRICTIONS

ON

THE

USE

OF

CONGRESSIONAL SPENDING POWER.

The Fourth Circuit majority concluded that West

Virginia violated Title IX by enacting a policy that

separates sports teams by biological sex. That flawed

conclusion is inconsistent not only with the text and

regulations of Title IX, but also with the

Constitution's Spending Clause, U.S. Const., art. 1, §

8, cl.1. Title IX provides that "[n]o person . . . 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." 20

U.S.C. § 1681(a) (emphasis added). West Virginia’s

25

law cannot be invalidated without stretching Bostock

like a rubber band and radically redefining the word

“sex.”

This Court has characterized Spending Clause

legislation as “much in the nature of a contract.” Nat'l

Fed'n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S.

519, 576-577 (2012); see Barnes v. Gorman, 536 U.S.

181, 186 (2002) (quoting Pennhurst State School and

Hospital v. Halderman, 451 U.S. 1, 17 (1981)). When

Congress exercises its spending power to enact

legislation (U.S. Const., art. 1, § 8, cl.1), the

legitimacy of that exercise “rests on whether the State

voluntarily and knowingly accepts the terms” of the

“contract” established. NFIB, 567 U.S. at 577 (quoting

Pennhurst, 451 U.S. at 17). Clarity is imperative

when Congress attaches conditions to the grant of

federal funds, because it "enable[s] the States to

exercise their choice . . . knowingly, cognizant of the

consequences of their participation," i.e., to

“knowingly decide whether or not to accept those

funds.” Pennhurst, 451 U.S. at 17, 24. This critical

safeguard ensures that spending legislation does not

“undermine the status of the States as independent

sovereigns in our federal system.” NFIB, 567 U.S. at

577. This Court has repeatedly struck down federal

legislation that “commandeers a State’s legislative or

administrative apparatus for federal purposes.”

NFIB, 567 U.S. at 577 (emphasis added) (citing

cases).

This

“prohibition

against

federal

commandeering of the States” is a “bedrock

constitutional” principal.” Medina v. Planned

Parenthood, 222 L. Ed. 2d 567, 595 (2025) (Thomas,

J., concurring). Here, advocates use the federal

judiciary to commandeer states, like West Virginia

26

and Idaho, to essentially rewrite Title IX in

compliance with radical transgender ideology. But

unlike legislation that “imposes congressional policy”

on regulated parties involuntarily, spending

legislation is based on informed consent. Cummings

v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 219

(2022). Absent clear and unambiguous notice, “that

consent cannot be fairly inferred.” Medina, 222 L. Ed.

2d at 585.

Congress may not alter the “usual constitutional

balance between the States and the Federal

Government” without using “unmistakably clear”

language. Atascadero State Hosp. v. Scanlon, 473 U.S.

234, 242 (1985). There cannot be “knowing acceptance

if a State is unaware of the conditions or is unable to

ascertain what is expected of it.” Pennhurst, 451 U.S.

at 17. West Virginia, Idaho, and other states have not

“knowingly and willingly,” as a condition of receiving

Title IX funds, waived their right to employ the timehonored definition of “sex” that no one questioned

when Title IX was enacted in 1972—53 years ago. At

that time, “virtually every dictionary definition of sex

referred to the physiological distinctions between

males and females." B.P.J., 98 F.4th at 574 (Agee, J.,

concurring in part and dissenting in part), citing

Grimm, 972 F.3d at 632 (Niemeyer, J., dissenting)

(collecting definitions) (internal quotations and

citations omitted). Indeed, early Title IX regulations

explicitly provided that funding recipients "may

operate . . . separate teams for members of each sex."

34 C.F.R. § 106.41(b). Although the Fourth Circuit

cited efforts to revise the relevant regulations to

address the situation presented in this case (B.P.J.,

27

98 F.4th at 564),7 the broad congressional authority

to legislate under the spending power “does not

include surprising participating States with postacceptance or 'retroactive' conditions.” NFIB, 567 U.S.

at 584 (citing Pennhurst, 451 U.S. at 25). “It defies

logic to conclude that Congress actually meant to

prohibit gender identity discrimination sub silentio

when enacting Title IX in 1972.” B.P.J., 98 F.4th at

574 (Agee, J., concurring in part and dissenting in

part). The Fourth Circuit, relying on an expansive

interpretation of Bostock, erroneously concluded

otherwise in Grimm, contending that “the Board

knew or should have known that the separate

facilities regulation did not override the broader

statutory protection against discrimination.” Grimm,

972 F.3d at 619 n. 18. That assertion blinks reality.

No state could reasonably be expected to foresee the

dramatic transformation of the word “sex” demanded

in recent years by transgender advocates. No state

has assumed an affirmative legal duty to adopt a

novel definition that upends the very reason for Title

IX. It is imperative that this Court grant certiorari

and halt the runaway application of Bostock so far

beyond its contours.

CONCLUSION

This Court should reverse the Fourth and Ninth

Circuit decisions.

7 Nondiscrimination on the Basis of Sex in Education Programs

or Activities Receiving Federal Financial Assistance: SexRelated Eligibility Criteria for Male and Female Athletic Teams,

88 Fed. Reg. 22860 (proposed Apr. 13, 2023) (to be codified at 34

C.F.R. § 106.41).

28

Respectfully,

Deborah J. Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

lawyerdeborah@outlook.com

(910) 326-4554

Tami Fitzgerald

NC VALUES INSTITUTE

9650 Strickland Rd.

Ste. 103-226

Raleigh, NC 27615

Counsel for Amicus Curiae

NC Values Institute