Amicus Curiae Brief — Bradley Little, Governor of Idaho, et al., Petitioners v. Lindsay Hecox, et al.
Supreme Court briefSep 19, 2025
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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,
Respondents.
————
On Writs of Certiorari to the
United States Courts of Appeals
for the Ninth and Fourth Circuits
————
BRIEF OF THE INDEPENDENT COUNCIL
ON WOMEN’S SPORTS AS AMICUS CURIAE
IN SUPPORT OF PETITIONER AND
ADDRESSING WHY SEX-SEPARATION
IS REQUIRED IN WOMEN’S SPORTS
————
WILLIAM BOCK III
Counsel of Record
JUSTIN R. OLSON
KROGER GARDIS AND REGAS, LLP
111 Monument Circle Ste 900
Indianapolis, Indiana 46204
(317) 777-7412
wbock@kgrlaw.com
Counsel for Amicus Curiae,
Independent Council on
Women’s Sports
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... iv
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF ARGUMENT ..................................... 2
ARGUMENT ................................................................ 5
I.
Sports
Participation
Improves
Girls’
Educational Achievement and Lifelong Health
........................................................................... 5
II.
Males Competing in Women’s Sports Deprive
Women of Equal Opportunities and Can Push
Them Out of Sport .......................................... 10
III.
The Title IX Athletics Regulation Presumes
Sex-Separation in Sports to Protect Women and
Afford Them Equal Opportunities to Men ..... 13
IV.
A.
Adoption of Javits Amendment ........... 13
B.
Title IX Athletics Regulation ............... 14
Women on a Women’s Team May Sue Under
Title IX When Deprived of Equal Opportunities
or Resources by a Male Competitor or
Teammate ....................................................... 17
A.
Supreme Court Decisions and Legislative
Developments Relevant to Women’s Title
IX Rights............................................... 18
1.
Cannon v. University of Chicago
ii
(1979) ......................................... 19
B.
2.
North Haven Board of Education
v. Bell (1982) .............................. 19
3.
Grove City College v. Bell (1984)
.................................................... 20
4.
Civil Rights Restoration Act
(1987) ......................................... 20
5.
Franklin v. Gwinnett County
Public Schools (1992) ................ 21
6.
Equity in Athletics Disclosure Act
(EADA) (1994) ........................... 21
7.
Gebser v. Lago Vista Independent
School District (1998) ................ 22
8.
NCAA v. Smith (1999) (Smith I)22
9.
Davis v. Monroe County Board of
Education (1999) ....................... 25
10.
Jackson v. Birmingham Board of
Education (2005) ....................... 27
11.
Fitzgerald v. Barnstable School
Committee (2009) ....................... 28
The Athletics Regulation Requires
Scholastic Sports Be Sex-Separated
Where Necessary to Protect Equal
Opportunities for Women .................... 29
iii
V.
A Policy that Permits Men to Participate on a
Women’s Team Contrary to the Sex-Separation
Model
Constitutes
Programmatic
Discrimination ................................................ 32
VI.
The Title IX Athletics Regulation Presumes
That Biology Matters, and Title VII Does Not
......................................................................... 35
CONCLUSION .......................................................... 37
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Adams by & through Kasper v. Sch. Bd. of St. Johns
Cnty.,
57 F.4th 791 (11th Cir. 2022)....................... 2, 18, 30
B.P.J. by Jackson v. W. Virginia State Bd. of Educ.,
98 F.4th 542 (4th Cir. 2024)..................................... 2
Bostock v. Clayton Cnty., Ga.,
590 U.S. 644 (2020) ...................................... 2, 17, 35
Brenden v. Indep. Sch. Dist. 742,
477 F.2d 1292 (8th Cir. 1973) .................................. 5
Cannon v. Univ. of Chicago,
441 U.S. 677 (1979) ................................................ 19
Clark, By & Through Clark v. Arizona Interscholastic
Ass’n,
695 F.2d 1126 (9th Cir. 1982) ................................ 36
Cohen v. Brown Univ.,
809 F. Supp. 978 (D.R.I. 1992)............................... 33
Cohen v. Brown University,
101 F.3d 155 (1st Cir. 1996)................................... 33
Davis v. Monroe Cnty. Bd. of Educ.,
526 U.S. 629 (1999) .............................. 25, 26, 27, 30
v
Fitzgerald v. Barnstable Sch. Comm.,
555 U.S. 246 (2009) ................................................ 29
Franklin v. Gwinnett Cnty. Pub. Sch.,
503 U.S. 60 (1992) .................................................. 21
Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274 (1998) ................................................ 22
Grimm v. Gloucester Cnty. Sch. Bd.,
972 F.3d 586 (4th Cir. 2020) .................................. 18
Grove City Coll. v. Bell,
465 U.S. 555 (1984) ................................................ 20
Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167 (2005) .............................. 17, 27, 28, 32
Kelley v. Bd. of Trs.,
35 F.3d 265 (7th Cir. 1994) .................................... 36
McCormick ex rel. McCormick v. Sch. Dist. of
Mamaroneck,
370 F.3d 275 (2d Cir. 2004).............................. 34, 35
N. Haven Bd. of Ed. v. Bell,
456 U.S. 512 (1982) ................................................ 19
NCAA v. Smith,
525 U.S. 459 (1999) ......................................... 23, 24
Neal v. Bd. of Trs. of Cal. State Univs.,
198 F.3d 763 (9th Cir. 1999) ...................... 30, 36, 37
Soule v. Conn. Assoc. of Schools,
755 F. Supp. 3d 172 (D. Conn. 2024) ..................... 17
vi
Soule v. Connecticut Ass’n of Sch., Inc.,
90 F.4th 34 (2d Cir. 2023) ...................................... 36
Texas v. Cardona,
743 F. Supp. 3d 824 (N.D. Tex. 2024).................... 32
United States DOT v. Paralyzed Veterans of America,
477 U.S. 597 (1986) .......................................... 24, 25
United States v. Virginia,
518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735
(1996) ............................................................ 1, 30, 31
Williams v. Sch. Dist. of Bethlehem, Pa.,
998 F.2d 168 (3d Cir. 1993).............................. 30, 36
Yellow Springs Exempted Vill. Sch. Dist. Bd. of Educ.
v. Ohio High Sch. Athletic Ass’n,
647 F.2d 651 (6th Cir. 1981) .................................. 30
Statutes
20 U.S.C. § 1092 ........................................................ 21
20 U.S.C. § 1681(a) .............................................. 17, 30
Pub. L. No. 100-259, 102 Stat. 28 (1987) .................. 20
Pub. L. No. 93-380 ..................................................... 13
Regulations
34 C.F.R. § 106.33...................................................... 31
34 C.F.R. § 106.41(a) ................................................. 14
34 C.F.R. § 106.41(b) ................................................. 15
vii
34 C.F.R. § 106.41(c) .................................................. 16
Other Authorities
117 Cong.Rec. 30 ................................................. 30, 36
118 Cong.Rec. 5 ......................................................... 35
44 Fed. Reg. 71413 .................................................... 34
94th Cong. 1st ............................................................ 35
Anderson, Paul M., Title IX at Forty: An Introduction
and Historical Review of Forty Legal Developments
That Shaped Gender Equity Law,
22 MARQ. SPORTS L. REV. 325 (2012) ....................... 5
Rogers, Elle, The Two Sexes are Not Fungible: The
Constitutional Case Against Transgender-Inclusive
Sports, 28 TEX. R. OF LAW & POLITICS 243, 246
(2024) ........................................................................ 5
1
INTEREST OF AMICUS CURIAE 1
Amicus is the Independent Council on Women’s
Sports (ICONS) a 501(c)(3) organization and advocacy
group that supports a network of current and former
collegiate and professional women athletes and their
supporters who agree with former Justice Ginsberg
that “physical differences between men and women . .
. are enduring . . . the two sexes are not fungible . . .
inherent differences between men and women . . .
remain cause for celebration.” United States v.
Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 2276, 135
L. Ed. 2d 735 (1996) (cleaned up; citations omitted).
1 Rule 37 statement: No party’s counsel authored any
of this brief; amicus alone funded its preparation and
submission. See Sup. Ct. R. 37.6.
2
SUMMARY OF ARGUMENT
“Given how biological differences affect typical
outcomes in sports, ensuring equal opportunities for
biological girls in sports requires that they not have
to compete against biological boys.” B.P.J. by Jackson
v. W. Virginia State Bd. of Educ., 98 F.4th 542, 571
(4th Cir. 2024) (Agee, J., concurring and dissenting in
part) (emphasis added).
Judge Agee is right. Due to enormous,
documented performance advantages of males 2 in
sport, Title IX’s equal opportunity mandate is
correctly interpreted to bar males from competing on
sex-separated women’s sports teams at federally
funded schools. However, to date, regardless of
whether the interpretation of Title IX has been
rendered by school administrators or judges, this has
frequently not been the result.
“Man” “woman” “women” “men” “male” “female”
“she” “he” “him” “her” and “sex” are used herein in
their strict biological sense as used in Title IX’s sportspecific regulation adopted in chronological proximity
to Title IX’s passage, without regard for “gender
identity.” See Adams by & through Kasper v. Sch. Bd.
of St. Johns Cnty., 57 F.4th 791, 812 (11th Cir. 2022)
(Title IX defines “sex” “based on biology and
reproductive function.”); Black’s Law Dictionary (5th
ed. 1979) (“Sex. The sum of the peculiarities of
structure and function that distinguish a male from a
female organism[.]”); see also Bostock v. Clayton Cnty.,
Ga., 590 U.S. 644, 655 (2020) (“sex” in the Civil Rights
Act of 1964 “refer[s] only to biological distinctions
between male and female”).
2
3
Stemming from the failure of institutions,
educational and judicial, to accurately apply Title IX,
reportedly 27 states have enacted legislation
prohibiting males from participating on women’s
sports
teams.
See
https://williamsinstitute.law.ucla.edu/publications/im
pact-trans-sports-ban-eo/. The evident reason these
laws have become necessary is misinterpretation of
Title IX to permit boys and men who self-identify as
transgender to compete in women’s sports. Instead of
protecting women’s equal opportunities, Title IX has
been misunderstood or misconstrued to permit males
to compete against females and use women’s showers
and locker rooms, diminishing women’s equal
opportunities in scholastic sports.
With the Country practically cleaved down the
middle between states that have enacted laws to
protect women’s equal opportunities in scholastic
sports and those that have not, and with the number
of boys and men seeking to compete in women’s sports
clearly on the rise, many girls remain unprotected
against loss of their equal opportunities. This
threatens irreparable loss of the significant benefits
resulting from early participation in women’s
athletics.
Title IX and its athletics regulation are
grounded in the obvious facts that men and women are
physically different and that in sport these differences
matter. The athletics regulation was meant to ensure
that women have access to the same experience on the
athletic field and in the locker room as men in a
context that’s fair and respects women’s dignity and
privacy. The premise of the regulation is that sex-
4
separated teams are essential for equal opportunity in
sport, and that women’s opportunities and amenities
must be equal to the men’s.
Every case decided by this Court applying
Title IX has either expressly stated or presumed that
schools violate Title IX when they fail to provide equal
opportunities or are deliberately indifferent to
circumstances that interfere with unfettered
enjoyment of those opportunities. Given that
scholastic sports are organized around a paradigm of
equal opportunities on separate teams, every time a
man joins a women’s team he takes a women’s spot on
that team. Deliberately allowing trans-identifying
men to take women’s opportunities and invade their
private spaces is fundamentally inconsistent with the
athletics regulation and this Court’s Title IX
precedents.
If left unchecked, ongoing misinterpretation of
Title IX will drive many girls out of scholastic sports,
and that exodus has sadly already started. The
increasing numbers of males joining women’s teams
threatens the gains for women that Title IX made
possible in the first place.
The solution? Interpret Title IX and its
accompanying athletics regulation as written and
originally understood to require sex-separation in
women’s sports and locker rooms where necessary to
protect equal opportunities for women and prevent
males from competing in women’s sport when a school
has decided to field women’s teams. Faithful
construction of Title IX’s athletics regulation is the
answer.
5
ARGUMENT
I.
Sports Participation Improves Girls’
Educational Achievement and Lifelong
Health
The passage of Title IX in 1972 changed the
landscape of women’s sports in America. It led to
women’s participation increasing in high school sports
by over 1,000% and in college sports by over 600%. In
1972, just 7% of high-school athletes were girls, but by
2018 that number had risen to almost 43%. See
Rogers, Elle, The Two Sexes are Not Fungible: The
Constitutional Case Against Transgender-Inclusive
Sports, 28 TEX. R. OF LAW & POLITICS 243, 246 (2024)
(citing sources).
Courts have recognized both the importance of
scholastic sports and Title IX’s key role in helping
secure for America’s youth the salutary benefits of
scholastic sport. From Brenden v. Indep. Sch. Dist.
742, 477 F.2d 1292, 1298 (8th Cir. 1973), the first case
to refer to Title IX, “courts have repeatedly found that
athletics is a vital and important part of the
educational experience for high school and college
students.” Anderson, Paul M., Title IX at Forty: An
Introduction and Historical Review of Forty Legal
Developments That Shaped Gender Equity Law, 22
MARQ. SPORTS L. REV. 325, 327 (2012).
Girls derive dramatic education benefits from
sports participation. Girls who play high school sports
are 20% more likely to graduate from high school and
20% more likely to attend college. Sports participation
itself yields these academic benefits; it is not just that
6
girls who were always going to do well academically
choose to play sports. Lumpkin, A., & Favor, J.,
Comparing the academic performance of high school
athletes and non-athletes in Kansas, 4(1) JOURNAL OF
SPORT ADMINISTRATION & SUPERVISION 41–62 (2012),
https://www.jsasonline.org/index.php/jo. There is a
positive link between sport participation and academic
performance for high school girls. Id.
Female collegiate athletes too have higher
grades and graduation rates than their non-athletic
peers. Of the female student-athletes entering NCAA
Division I programs on scholarship between 2018 and
2022, 94% graduated within six years of enrollment.
This graduation rate is 23 percentage points higher
than for female non-athlete students (71%) and higher
than the rate for all students. NCAA Division I
graduation
rates
report,
(2023),
https://www.ncaa.org/sports/2021/11/16/graduationsuccess-rate.aspx.
Indeed, female athletes consistently post the
highest graduation rates of all students. Both white
female scholarship athletes (71%) and female
scholarship athletes of color (58%) graduated at higher
rates than their counterparts in the general student
population (56% and 44%, respectively). Tompsett, J.,
Collegiate sports participation, academic achievement,
and bachelor’s degree completion, 38(4) SOCIOLOGICAL
FORUM
987–1008
(2023),
https://onlinelibrary.wiley.com/doi/10.1111/socf.12945
. The same impact on graduation rates is observable in
high schools where female student-athletes graduate
at rates higher than their non-athlete counterparts in
the student-body. Marsh, H. W., & Kleitman, S.,
7
School athletic participation: Mostly gain with little
pain, 25(2) JOURNAL OF SPORT & EXERCISE
PSYCHOLOGY
205–228
(2003),
https://journals.humankinetics.com/view/journals/jse
p/25/2/article-p205.xml.
The
educational,
maturational,
and
developmental benefits to women of sport
participation also translates into post-graduation
economic success. Data shows a link between sport
participation and economic attainment later in life.
Increased sports participation by women after the
passage of Title IX is said to explain about 20% of the
increase in women’s educational attainment and about
40% of the rise in employment for 25-to-34-year-old
women, including a 12% spike in the number of women
working in traditionally male-dominated occupations
such as law, accounting, and veterinary medicine.
Stevenson, B., Beyond the classroom: Using Title IX to
measure the return to high school sports, 92(2) REV. OF
ECONOMICS AND STATISTICS 284–301 (2010),
https://www.mitpressjournals.org/doi/abs/10.1162/res
t.2010.12333.
Increases in female sports participation spurred
by Title IX are also good for the American economy. A
study found that more than four out of five executive
businesswomen (81%) played sports growing up – and
the vast majority of these women reported that the
lessons they learned on the playing field contributed
to their business success. Oppenheimer Funds survey
on women in business and sports participation, (2002),
https://www.ey.com/en_us. Not surprisingly, a
background in competitive sport is a common gateway
to future employment in the sports industry itself. The
8
business of sports, including athletic administration,
coaching, sports management, sports medicine,
marketing, and manufacturing, is a nearly $260
billion per-year industry. Sports & Fitness Industry
Association, Economic impact of the sports industry in
the
United
States
(2024),
https://www.sfia.org/reports/2024-economic-impact.
Lifelong health benefits are also correlated to
participation in scholastic sports. High school sports
participation leads to more physical activity
throughout a woman’s lifetime. Women who
participate in regular physical exercise reduce their
risk of breast cancer between 20 and 40%. American
Cancer Society, Physical activity and cancer risk,
(2023),
https://www.cancer.org/cancer/riskprevention/diet-physical-activity/physical-activityand-cancer.html. Osteoporosis afflicts 10 million
Americans, 80% of whom are women. But regular
physical activity and sports participation in the
school-age years increases life-time bone density.
National Osteoporosis Foundation, Osteoporosis
statistics
and
prevention
(2024),
https://www.bonehealthandosteoporosis.org/patients/
osteoporosis/. Alzheimer’s disease disproportionately
afflicts older women, but rates can be lowered with
physical activity earlier in life. Alzheimer’s
Association, Physical activity and Alzheimer’s risk
(2025),
https://www.alz.org/helpsupport/brain_health/physical_activity.
High school sports participation also helps
prevent adult obesity. A 20% increase in girls’ sport
participation in high school was associated with a 24%
increase in the probability of engaging in “much”
9
physical activity during recreational activities, a 4%
decline in body mass index, and a lessened probability
of being overweight or obese. Kaestner, R., & Xu, X,
Effects of Title IX and sports participation on girls’
physical activity and weight, 17 ADVANCES IN HEALTH
ECONOMICS AND HEALTH SERVICES RESEARCH 79–111
(2006),
https://www.emerald.com/insight/content/doi/10.1016/
S0731-2199(06)17004-1. When physically active in
high school, girls are more likely to maintain a normal
weight into their twenties, which increases their life
expectancy by as much as eight years. National
Institutes of Health, Obesity and mortality:
Longitudinal
studies,
(2023),
https://www.nih.gov/news-events/nih-researchmatters/obesity-mortality.
High school sports participation also changes
lifestyle choices affecting health. For example, female
athletes are less likely to smoke or use illicit drugs
than non-athletes. They are less likely to become
pregnant as teenagers and more likely to report never
having had sexual intercourse. They are also more
likely to experience their first sexual intercourse later
in adolescence than female non-athletes. Pate, R. R.,
et al., Sports participation and health-related
behaviors among US youth, 154(9) ARCHIVES OF
PEDIATRICS & ADOLESCENT MEDICINE 904–911 (2000),
https://jamanetwork.com/journals/jamapediatrics/full
article/351093.
Athletic participation also has mental health
benefits. Female high school athletes suffer lower
rates of depression and show markedly lower
incidences of considering or attempting suicide.
10
Jewett, R., et al., School sport participation during
adolescence and mental health in early adulthood,
55(5) J. OF ADOLESCENT HEALTH 640–644 (2014),
https://www.jahonline.org/article/S1054139X(14)00229-9/fulltext.
There can be little question that securing equal
opportunities for women in scholastic sport is vital to
the Nation and is a key goal of Title IX.
II.
Males Competing in Women’s Sports
Deprive Women of Equal Opportunities
and Can Push Them Out of Sport
Given the enormous size, strength, power and
other sport performance advantages enjoyed by males
over women described in Petitioners’ Briefs, it follows
that continuing participation of males in women’s
scholastic sports will cause a decrease in girls’ sports
participation in high school and college.
First, the performance advantages of being
male will cause women to lose roster spots and playing
time, resulting in these girls losing some of the
intrinsic joys of sport and life lessons that can be
learned through sport.
Second, as described below, participation by
males in women’s contact sports increases the
likelihood of physical injuries to women. Further,
many women experience depression and a profound
sense of unfairness when deprived of sports
opportunities by men who, because of extreme
physical superiority, have competitive advantages
women are unable to overcome through dedication and
11
hard work.
Unfair and unsafe competition naturally leads
to suppressed participation in sport. This is one of the
lessons learned from organized doping in sports like
cycling and track and field, where many athletes
report that doping within the elite levels of their sport
diminishes their motivation to continue and
ultimately drives them out of top-level competitions.
See, e.g., Enhanced Games could ‘turn away future
athletes,’
BBC
(Sept.
16,
2025),
https://www.bbc.com/sport/articles/cp3qn6xd91ro;
Scott Mercier, The Cyclist Who Refused To Dope, Now
Champions Clean Racing, COLORADO PUBLIC RADIO,
Apr.
26,
2017,
https://www.cpr.org/showsegment/scott-mercier-the-cyclist-who-refused-todope-now-champions-clean-racing/; Athlete’s ‘Nope To
Dope’ Became ‘No To Sports,’ NPR, Aug. 30, 2010,
https://www.npr.org/2010/08/30/129533093/athletesnope-to-dope-became-no-tosports#:~:text=Katherine%20Hamilton%20during%2
0a%201981,to%20lying%20about%20drug%20use.
Like doping, men’s participation in women’s
sports raises both fairness and safety concerns that
are driving women out of sport.
Female attrition due to men participating on
women’s sports teams is regrettably on the rise. For
example, former high school volleyball player Payton
McNabb never played another volleyball game after
she suffered a debilitating brain injury when struck in
the head by a spike from a trans-identifying male
athlete in a women’s high school volleyball match. See
Volleyball player ‘fights for truth’ after being severely
12
injured by trans opponent: ‘If only my rights had been
more important than a man’s feelings,’ NEW YORK
POST, Dec. 17, 2024, https://nypost.com/2024/12/17/usnews/female-athlete-permanently-hurt-by-transathlete-speaks-out/.
Seven times last season entire college women’s
volleyball teams in the Mountain West Conference
(MWC) protested a male volleyball player on the San
Jose State University Women’s Volleyball Team and
the girls on these teams lost the opportunity to
compete. Adding insult to injury, their teams were
assigned forfeits by the MWC for protesting.
The Boise State University Women’s Volleyball
Team, in fact, forfeited three games to the San Jose
State team for this very reason, including forfeiting
the semifinal round of the Mountain West Conference
Championship, rather than play against a male player
who had spiked numerous girls in the face throughout
the season, creating fear of injury for the women. See
San Jose State’s Opponent Boycotts Game Over
Transgender Player. Again., New York Times, (Nov.
28,
2024),
https://www.nytimes.com/2024/11/28/us/transgendersan-jose-boise-volleyball.html.
This year, three girls on the Santa Rosa Junior
College Women’s Volleyball Team are losing an entire
year of college eligibility due to a trans-identifying
male on their team who has already concussed one
teammate during practice this year. See Santa Rosa
women’s volleyball players open up on trans
teammate’s alleged spikes to the head, FOX NEWS, Sept.
9, 2025, https://www.foxnews.com/sports/santa-rosa-
13
womens-volleyball-players-open-up-trans-teammatesalleged-spikes-head.
The above examples only scratch the surface of
what is happening to women in scholastic sports
across the country as other amicus briefs filed in this
case attest, space prevents a full accounting. This
same story of women losing opportunities to men in
women’s scholastic sports is playing out repeatedly
from coast to coast, all to the detriment of girls who
should be protected by Title IX but instead are losing
irreplaceable competitive opportunities to men.
III.
The Title IX Athletics Regulation
Presumes Sex-Separation in Sports to
Protect Women and Afford Them Equal
Opportunities to Men
A.
Adoption of Javits Amendment
On August 21, 1974, Congress passed the Javits
Amendment, requiring the Department of Health,
Education, and Welfare (the “Department”) (the
predecessor federal enforcer of Title IX) to “prepare
and publish . . . proposed regulations implementing
the provisions of [T]itle IX of the Education
Amendments of 1972 relating to the prohibition of sex
discrimination in federally assisted education
programs which shall include with respect to
intercollegiate
athletic
activities
reasonable
provisions considering the nature of particular sports.”
Pub. L. No. 93-380, Title VII, Part D, § 844, 88 Stat.
612 (1974).
14
B.
Title IX Athletics Regulation
The regulations regarding “intercollegiate
athletic activities” requested by Congress (the
“athletics regulation”) were published in 1975. The
first part of the athletics regulation prohibits
discrimination in athletics using language that tracks
Title IX:
General. No person shall, on the basis of
sex, be excluded from participation in, be
denied the benefits of, be treated
differently from another person or
otherwise be discriminated against in
any interscholastic, intercollegiate, club
or intramural athletics offered by a
recipient, and no recipient shall provide
any such athletics separately on such
basis.
34 C.F.R. § 106.41(a).
The athletics regulation next addresses
separate athletics teams for each sex, making clear
that sex-separated but comparable sports teams
remained the presumptive method of choice under
Title IX to create the conditions for women’s equal
opportunities in sport.
Separate teams. Notwithstanding the
requirements of paragraph (a) of this
section, a recipient may operate or
sponsor separate teams for members of
each sex where selection for such teams
is based upon competitive skill or the
15
activity involved is a contact sport.
However, where a recipient operates or
sponsors a team in a particular sport for
members of one sex but operates or
sponsors no such team for members of
the other sex, and athletic opportunities
for members of that sex have previously
been limited, members of the excluded
sex must be allowed to try-out for the
team offered unless the sport involved is
a contact sport. . . .
34 C.F.R. § 106.41(b).
Thus, Title IX did not do away with or
discourage sex-separated women’s sports teams. To
the contrary, the athletics regulation embraces sexseparated women’s teams (and the effort to increase
the numbers of women playing on those teams and the
resources available to these women) as the favored
method for advancing women’s equal opportunities in
scholastic sports.
Thirdly, the athletics regulation sets forth a list
of ten factors to consider when evaluating whether a
recipient of federal funding is providing “equal athletic
opportunity for members of both sexes”:
Equal opportunity. A recipient which
operates or sponsors interscholastic,
intercollegiate, club or intramural
athletics shall provide equal athletic
opportunity for members of both sexes. In
determining whether equal opportunities
are available the Director will consider,
16
among other factors:
(1) Whether the selection of sports and
levels
of
competition
effectively
accommodate the interests and abilities
of members of both sexes;
(2) The provision of equipment and
supplies;
(3) Scheduling of games and practice
time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and
academic tutoring;
(6) Assignment and compensation of
coaches and tutors;
(7) Provision of locker rooms, practice
and competitive facilities;
(8) Provision of medical and training
facilities and services;
(9) Provision of housing and dining
facilities and services;
(10) Publicity.
34 C.F.R. § 106.41(c) (emphasis added).
Each of the above equal opportunity factors is
not only fully compatible with sex-separated women’s
17
teams, it presumes sex-separation. By mandating
comparisons between what the school’s women’s team
receives with what the comparable men’s team
receives, the regulation presumes that men’s and
women’s teams are separated. Such comparisons of
the opportunities made available by an institution for
its’ women’s teams vis-à-vis the opportunities it
provides for its men’s teams is the starting point for
assessing the institution’s compliance with Title IX.
IV.
Women on a Women’s Team May Sue
Under Title IX When Deprived of Equal
Opportunities or Resources by a Male
Competitor or Teammate
Title IX “prohibits sex discrimination by
recipients of federal education funding,” Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005),
and equalizes opportunities for women by extending
its protections based on “sex.” 20 U.S.C. § 1681(a).
“Sex” in Title IX “refer[s] only to biological
distinctions between male and female.” Bostock, 590
U.S. at 655; accord Soule v. Conn. Assoc. of Schools,
755 F. Supp. 3d 172, 194 n.17 (D. Conn. 2024) (“I agree
that” interpreting “sex” in Title IX to mean “biological
sex” “best reflects the term’s ordinary public meaning
in 1972”). Title IX protects biological women from
being treated worse than biological men. As explained
above, the way that this is typically assessed is by
comparing the benefits and opportunities given to (or
taken from) women’s teams against the benefits and
opportunities given to (or taken from) men’s teams.
“Sex” in Title IX does not mean “gender
18
identity.” Adams, 57 F.4th at 813-14 (“There simply is
no alternative definition of ‘sex’ for transgender
persons as compared to nontransgender persons under
Title IX.”). “Title IX was enacted in 1972, and its
implementing regulations were promulgated shortly
thereafter. And during that period of time, virtually
every dictionary definition of “sex” referred to the
physiological distinctions between males and femalesparticularly with respect to their reproductive
functions.” Grimm v. Gloucester Cnty. Sch. Bd., 972
F.3d 586, 632-33 (4th Cir. 2020), as amended (Aug. 28,
2020) (Niemeyer, J., dissenting). Title IX is “gender
identity” blind-it does not consider the identity of a
person or presume that sex could ever be mutable.
However a person may identify, Title IX is focused
solely on biology.
As explained below, given that sex-separated
women’s sports teams are the chosen method of
equalizing women’s opportunities in sports, it follows
that women must be able to challenge the intrusion of
males on women’s teams when that intrusion is the
result of a deliberate or intentional policy by an
institution that deprives or threatens to deprive
women of equal opportunities.
A.
Supreme Court Decisions and
Legislative Developments Relevant
to Women’s Title IX Rights
For more than forty-five years, this Court and
Congress have consistently interpreted Title IX or
amended it to expand the rights of individuals to seek
remedies against institutions that participate in
depriving women of their right to equal opportunities
19
or resources in comparison to men in programs and
activities covered by Title IX.
1.
Cannon
v.
University
Chicago (1979)
of
In 1979 the Court recognized a private right of
action under Title IX, allowing a female student
denied admission to medical school to sue the
University of Chicago over alleged sex discrimination
in the admissions process. Cannon v. Univ. of Chicago,
441 U.S. 677, 717 (1979).
2.
North
Haven
Board
Education v. Bell (1982)
of
Three years later, in a case involving a tenured
public school teacher, the Court found that
employment discrimination is prohibited under Title
IX. N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 530-31
(1982). Therein, the Court also discussed that the Title
IX regulations were considered by Congress, noting
Congress had conducted committee hearings to
consider the regulations, recalling its statement in
Cannon that “[a]lthough postenactment developments
cannot be accorded ‘the weight of contemporary
legislative history, we would be remiss if we ignored
these authoritative expressions concerning the scope
and purpose of Title IX.’” Id. at 535 (quoting Cannon,
441 U.S. at 687 n.7). The Court has ever since
regarded the Title IX implementing regulations,
including the athletics regulation, as authoritative
expressions concerning the scope and purpose of
Title IX.
20
3.
Grove City
(1984)
College
v.
Bell
Next, the Court considered the scope of Title
IX’s coverage over federally funded institutions. In
Grove City the Court agreed that the Department of
Education could terminate Basic Educational
Opportunity Grants (BEOGs) to Grove City because
the College had refused to sign the Department’s
assurance that the College was in compliance with
Title IX. Grove City Coll. v. Bell, 465 U.S. 555, 563
(1984). The Court then analyzed which “education
program or activity” at the College received federal
assistance through the BEOGs and concluded it was
the financial aid program which received federal aid,
therefore, institution-wide coverage of the College was
not triggered by the financial aid program’s
acceptance of BEOGs. Id. at 573-74.
4.
Civil Rights Restoration Act
(1987)
Grove City was viewed by some in Congress as
retracting the intended reach of Title IX, eventually
prompting Congress to adopt the Civil Rights
Restoration Act (CRRA) in 1987 to “restore the broad
scope of coverage and to clarify the application of title
IX.” Civil Rights Restoration Act of 1987, Pub. L. No.
100-259, 102 Stat. 28 (1987). The CRRA makes clear
Title IX coverage is institution-wide and covers every
part, program, and activity of an entity receiving
federal assistance.
21
5.
Franklin v. Gwinnett County
Public Schools (1992)
In Franklin the Court concluded that the
private right of action to enforce Title IX permitted a
student to sue her high school for failing to stop known
sexual harassment of her by a teacher, and that
because Congress had not limited the remedies
available under Title IX “a damages remedy is
available for an action brought to enforce Title IX.”
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76
(1992).
6.
Equity in Athletics Disclosure
Act (EADA) (1994)
In 1994 Congress passed the Equity in Athletics
Disclosure Act (EADA) which was focused on
prospective students and student-athletes who
“should be aware of the commitments of an institution
to providing equitable athletic opportunities for its
men and women students,” and provided information
to help students “make informed judgments about the
commitments of a given institution of higher education
to providing equitable athletic benefits to its men and
women students.” 20 U.S.C. § 1092 n.(b)(7)-(8).
The EADA requires institutions to prepare
annual reports identifying undergraduate attendance,
information about varsity sports teams, money spent
on athletically related student aid, recruiting
expenses, revenues, salaries, and overall expenses.
The information submitted by covered schools can be
accessed online on the Department of Education’s
Equity in Athletics Analysis Cutting Tool. See
22
https://data.ed.gov/data_explorer/equity-athletics.
The EADA underscores Title IX’s reliance on
sex-separated teams to assess Title IX compliance. It
requires reporting absolute numbers of members of
each sex-separated team in comparison to absolute
numbers of males and females in the student
population. The obvious reason for mandating
reporting of EADA data is to compare an institution’s
sex-separated sports programs, i.e., to compare the
resources and opportunities directed to men’s teams
versus women’s teams.
7.
Gebser
v.
Lago
Vista
Independent School District
(1998)
In 1998 the Court considered a sexual
harassment case against a school district arising from
a sexual relationship between a student and teacher.
The Court concluded the student could recover
damages if “an official of the school district who at a
minimum has authority to institute corrective
measures on the district’s behalf has actual notice of,
and is deliberately indifferent to, the teacher’s
misconduct.” Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 284 (1998). Because the defendant school
in Gebser did not have actual notice of the teacher’s
sexual misconduct and was not deliberately
indifferent the student was unable to recover
damages. Id. at 292-93.
8.
NCAA v. Smith (1999) (Smith I)
In 1999 the Court reviewed its first and only
23
Title IX case involving the National Collegiate Athletic
Association (NCAA) in NCAA v. Smith, 525 U.S. 459
(1999), sometimes referred to as Smith I to distinguish
it from a later Title IX case brought against the NCAA
in the lower courts that is referred to as Smith II.
In Smith I the Plaintiff Renee Smith had been
a student-athlete at St. Bonaventure University
where she played on the women’s volleyball team.
Smith left the school after graduating and still had a
year of collegiate athletics eligibility remaining when
she enrolled at a different graduate school and sought
a waiver from the NCAA of its postbaccalaureate rule
that forbade a student to participate in intercollegiate
athletics after graduation except at the undergraduate
school the student attended. Smith challenged this
NCAA rule as discriminatory based on sex because the
NCAA granted more waivers of it to men than to
women.
The only issue ultimately considered by the
Court, however, was the basis of Smith’s contention
that the NCAA was covered by Title IX. The Court
said, “if any part of the NCAA received federal
financial assistance, all NCAA operations would be
subject to Title IX.” Smith I, 525 U.S. at 469.
However, the only theory of Title IX coverage
advanced by Smith had been that the NCAA received
“dues” from federally funded members. Thus, the only
question before the Court was whether payments of
any sort by a federally financed school to a third party
could subject that third party to Title IX coverage. The
Court held the mere receipt of “dues” by the NCAA was
insufficient because the student-athlete had not
24
alleged that “NCAA members paid their dues with
federal funds earmarked for that purpose,” therefore
proof of the NCAA’s “receipt of dues” merely
“demonstrates that it indirectly benefits from the
federal assistance afforded its members.” Id. at 468.
“[T]his showing, without more, [was] insufficient to
trigger Title IX coverage.” Id.
Before the Supreme Court, Smith sought to
raise other bases for Title IX coverage over the NCAA.
The Smith I Court appeared to signal that these
alternative theories for NCAA coverage under Title IX
might be viable. However, because these alternative
coverage theories had not been raised below, the Court
was unable to consider them.
One theory of coverage the Court did not
address in Smith I, because it had not been advanced
below, is the theory that “when a recipient cedes
controlling authority over a federally funded program
to another entity, the controlling entity is covered by
Title IX regardless of whether it is itself a recipient.”
Smith I, 525 U.S. at 469-70. A second Title IX coverage
ground raised but not decided in Smith I was that the
NCAA indirectly “receive[d] federal financial
assistance through the National Youth Sports
Program” administered by the NCAA. Id.
The Court acknowledged in Smith I that the
NCAA is “‘created by and comprised of schools that
receive federal funds, and ... governs its members ‘with
respect to athletic rules.’” Id. at 469 (cleaned up).
Perhaps significantly, the Court noted this
arrangement was a potential basis to distinguish the
NCAA from an entity addressed in United States DOT
25
v. Paralyzed Veterans of America, 477 U.S. 597 (1986),
which held that merely benefiting from a federal
funding recipient does not trigger Title IX coverage.
Thus, this comment by the Court appears to suggest
that the Court considered that the NCAA’s
“govern[ing]” authority over the “athletic rules” of
NCAA members would weigh in favor of Title IX
coverage over the NCAA had that argument been
raised below.
However, the Smith I Court ultimately said
that, “[e]vident as these distinctions may be, they do
not bear on the narrow question we decide todaywhether an entity that receives dues from recipients
of federal funds is for that reason a recipient itself.” Id.
9.
Davis v. Monroe County Board
of Education (1999)
Also in 1999, the Court considered the claims of
a fifth-grade student who sued their school board
under Title IX for failure to remedy a classmate’s
sexual harassment. The Court held that a school board
could be “liable for its own decision to remain idle in
the face of known student-on-student harassment in
its schools.” Davis v. Monroe Cnty. Bd. of Educ., 526
U.S. 629, 641 (1999). Where the funding recipient
acted with deliberate indifference, the harassment
must be sufficiently severe that it effectively bars the
victim’s access to an educational opportunity or
benefit and the recipient must have exercised
substantial control over the harasser and the context
in which the known harassment occurred. Id. at 64147. Where harassment occurs on the school grounds,
“the recipient retains substantial control over the
26
context in which the harassment occurs.” Id. at 646.
The Davis Court also emphasized that the
gravamen of a deliberate indifference claim is not
sexual harassment itself, but the “deprivation of
access to school resources” or “deni[al of] equal access
to an institution’s resources and opportunities.” Id. at
650-51. The Court explained its focus on the denial of
equal access to an institution’s resources and
opportunities by posing the following non-sexual
harassment hypothetical that the Court made clear
would result in liability under Title IX:
Consider, for example, a case in which
male students physically threaten their
female peers every day, successfully
preventing the female students from
using a particular school resource—an
athletic field or a computer lab, for
instance. District administrators are well
aware of the daily ritual, yet they
deliberately ignore requests for aid from
the female students wishing to use the
resource. The district’s knowing refusal
to take any action in response to such
behavior would fly in the face of Title IX’s
core principles, and such deliberate
indifference may appropriately be subject
to claims for monetary damages. It is not
necessary, however, to show physical
exclusion to demonstrate that students
have been deprived by the actions of
another student or students of an
educational opportunity on the basis of
sex. Rather, a plaintiff must establish
27
sexual harassment of students that is so
severe, pervasive, and objectively
offensive, and that so undermines and
detracts from the victims’ educational
experience, that the victim-students are
effectively denied equal access to an
institution’s resources and opportunities.
Id. at 650–51 (emphasis added).
Thus, the Davis Court made clear that the
essence of a Title IX deliberate indifference claim is
the denial of “equal access to an institution’s resources
and opportunities.” But this is exactly what happens
when scholastic sports officials (whether at a school,
the NCAA, or a college athletic conference) ignore the
deprivation of equal opportunities in women’s sport
and loss of equal access to school resources in women’s
locker rooms and showers that occurs when males are
authorized to take women’s places on sports teams and
enter their private spaces. This language from Davis
appears to reflect the Court would recognize a claim
against an institution whose official(s) knowingly
allowed males (or a male) to deprive females (or a
female) of resources and private spaces dedicated to
women or implemented a policy permitting such
deprivations.
10.
Jackson v. Birmingham Board
of Education (2005)
The Plaintiff in Jackson v. Birmingham Board
of Education, 544 U.S. 167 (2005), was a high school
teacher and girls’ basketball coach who claimed his
team was not given equal access to athletic equipment
28
or facilities. Id. at 171. The school board and
administration ignored the coach’s complaints and
gave the coach negative performance reviews,
eventually removing him from his coaching job. Id. at
171-72. Jackson sued claiming he had been retaliated
against for his Title IX complaints about unequal
treatment of the women’s basketball team. The Court
held that retaliation is another version of intentional
discrimination that violates Title IX, saying said:
[R]etaliation is, by definition, an
intentional act. It is a form of
“discrimination”
because
the
complainant is being subjected to
differential treatment . . . . Moreover,
retaliation is discrimination “on the basis
of sex” because it is an intentional
response to the nature of the complaint:
an allegation of sex discrimination. We
conclude that when a funding recipient
retaliates against a person because he
complains of sex discrimination, this
constitutes intentional “discrimination”
“on the basis of sex,” in violation of
Title IX.
Id. at 173-74.
11.
Fitzgerald
v.
Barnstable
School Committee (2009)
Fitzgerald involved parents’ complaints over
how a school handled peer-on-peer sexual harassment
on a school bus. The parents had complained and were
dissatisfied with the school’s handling of the
29
harassment.
The issue before the Court, however, was a
narrow one regarding whether Title IX precluded
counterpart actions against state actors under section
1983 for alleged violations of the Equal Protection
Clause or other constitutional rights. The Court
concluded that “Title IX was not meant to be an
exclusive mechanism for addressing gender
discrimination in schools, or a substitute for § 1983
suits as a means of enforcing constitutional rights,”
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
258 (2009), therefore, “suits based on the Equal
Protection Clause remain available to plaintiffs
alleging unconstitutional gender discrimination in
schools.” Id.
B.
The Athletics Regulation Requires
Scholastic Sports Be Sex-Separated
Where Necessary to Protect Equal
Opportunities for Women
Amicus posits that the athletics regulation not
only permits sex-based distinctions but requires them
where necessary to ensure equal opportunity. Thus,
where sex-separation in scholastic sports exists to
protect women’s opportunities and access to resources,
Title IX prohibits covered entities from giving those
opportunities and resources to men.
This Court’s precedents clearly signal that
female athletes can sue institutions that deprive them
of sex-separated sports opportunities. As explained
above, Title IX protects women “from being ‘excluded
from participation in’ or ‘denied the benefits of’ any
30
‘education program or activity.’” Davis, 526 U.S. at 650
(quoting 20 U.S.C. § 1681(a)). A sex-separated
scholastic sports team and sex-separated showers and
locker rooms used by the members of that team
certainly constitute the benefits of an education
program or activity.
For women to have “equal opportunity” in
athletic competition, “relevant differences cannot be
ignored.” Yellow Springs Exempted Vill. Sch. Dist. Bd.
of Educ. v. Ohio High Sch. Athletic Ass’n, 647 F.2d 651,
657 (6th Cir. 1981); see also 117 Cong. Rec. 30, 407
(1971) (statement of Sen. Bayh) (noting Title IX would
not require co-ed sports teams or locker rooms).
One of this Court’s staunchest advocates for
women recognized that “[p]hysical differences”
between the sexes are “enduring.” Virginia, 518 U.S.
at 533. Addressing such physical differences and
ensuring that they do not impeded women’s equal
opportunities and benefits is the whole reason for the
accepted norm of sex-separated women’s athletic
teams and facilities furthered by the athletics
regulation.
“[T]he mere opportunity for girls to try out” for
a team is not enough if they cannot realistically make
the roster because of competition from men. Williams
v. Sch. Dist. of Bethlehem, Pa., 998 F.2d 168, 175 (3d
Cir. 1993). Nor is being on a team enough if women
cannot win scholarships or “enjoy the thrill of victory”
in historically male-dominated sports. See Neal v. Bd.
of Trs. of Cal. State Univs., 198 F.3d 763, 773 (9th Cir.
1999); accord Adams, 57 F.4th at 820 (Lagoa, J.,
specially concurring). Similarly, access to a shower,
31
restroom, or locker rooms is not sufficient when a
woman is denied enjoyment of that resource because
her privacy has been violated.
Biology matters. Males enjoy significant
athletic performance advantages rooted in male
biology. Therefore, when administrators decide to
separate teams by sex due to enduring physical
differences (i.e., male advantages in size, strength,
speed and performance) that separation must be
maintained, at least until some other paradigm for
protecting women’s equal opportunities has been
implemented. Covered programs cannot selectively
revert to co-ed teams on a case-by-case basis because
that will necessarily deprive women of equal
opportunities because they cannot easily move to a
men’s team.
Likewise, biology matters in terms of females’
ability to use and enjoy physical spaces which cannot
be fully or comfortably used without sex-separation.
Because biology matters in areas where women must
have privacy to fully prepare for or recover from
athletic activity that privacy must be maintained on a
sex-separated basis. In other words, enduring physical
differences also raise privacy concerns. As Justice
Ginsburg explained, integrating VMI “would
undoubtedly require alterations necessary to afford
members of each sex privacy from the other sex in
living arrangements.” Virginia, 518 U.S. at 550 n.19.
Accordingly, Title IX mandates women have
“separate” and “comparable” locker rooms. 34 C.F.R. §
106.33 and protects bodily privacy as failing to do so
“would deny many persons in the educational context
the dignity and freedom of bodily privacy” within
32
“intimate spaces within the educational environment.”
Texas v. Cardona, 743 F. Supp. 3d 824, 876–77 (N.D.
Tex. 2024).
Furthermore, subjecting women to a man’s
presence in a women’s locker room without consent
should be considered “encompass[ed within the]
diverse forms of intentional sex discrimination”
recognized by the Supreme Court. Jackson, 544 U.S.
at 183. A man’s presence in a women’s locker room
should not have to rise to the level of traditional
harassment to constitute a Title IX violation where his
presence was not consented to by females and his
access to the women’s locker room was intentionally
conferred by a covered entity without regard for
surprise, shame and humiliation to women,
particularly where men and women may be
undressing in the same room. A man’s presence in a
locker room, shower, or restroom violates Title IX
because it deprives women of equal and full enjoyment
of the resource.
V.
A Policy that Permits Men to Participate
on a Women’s Team Contrary to the SexSeparation
Model
Constitutes
Programmatic Discrimination
Since 1972 colleges and universities have
operationalized Title IX’s plain and unambiguous
equal opportunity mandate by creating sex-separated
teams in virtually all intercollegiate sports. Publicly
available EADA data compiled by the U.S.
Department of Education confirms this. Having
separated women’s sports by sex to comply with Title
IX, and having announced that sex-separation to the
33
world through EADA data as Congress requires, a
federally funded school must maintain that sexseparation so long as sex-separation continues to be
the method the school employs to equalize resources
and opportunities in sports.
Based on early HEW guidance documents some
courts have said that a Title IX claim can be
established
through
proof
of
programmatic
discrimination throughout a school’s athletic program.
See, e.g., Cohen v. Brown University, 101 F.3d 155,
161-64 (1st Cir. 1996); Cohen v. Brown Univ., 809 F.
Supp. 978, 991-92 (D.R.I. 1992), aff'd, 991 F.2d 888
(1st Cir. 1993). While this is one way to prove a Title
IX violation, as this Court’s precedents make clear, it
is not the only way to do so.
As this Court held in Cannon, Franklin, and
Davis, purposeful deprivation of a woman’s access to
educational opportunities or resources about which
the covered entity is aware and could prevent is
actionable discrimination under Title IX. Thus, an
entity’s policy of putting a man on the women’s team
or in the women’s locker room thereby depriving
women of opportunities and resources states an
actionable Title IX claim.
When a covered entity fields sex-separated
teams but then grants exceptions for individuals to
join a team of the opposite sex and a man deprives
women of resources by joining a women’s team no sort
of program-wide assessment or analysis of the extent
of the harm should be necessary. A woman who alleges
she has been harmed through lost opportunities or
access to resources should be allowed to proceed with
34
her individual claim without alleging programmatic
harm. Nevertheless, even if for some reason women
are required to prove that the loss of access they suffer
under a transgender eligibility policy that opens
women’s sports teams to men constitutes a pervasive
or programmatic loss of opportunities for women, it is
apparent that they can do so under Circuit court
precedents.
For instance, the Second Circuit has held, a
significant disparity in a single program component in
an athletics department “can alone constitute a Title
IX violation if it is substantial enough in and of itself
to deny equality of athletic opportunity to students of
one sex at a school.” McCormick ex rel. McCormick v.
Sch. Dist. of Mamaroneck, 370 F.3d 275, 293 (2d Cir.
2004). A denial of equal athletic opportunity can
“result from a significant disparity in a single sport.”
Id. at 296 (finding Title IX violation based on a
scheduling disparity solely in girls’ soccer); see 44 Fed.
Reg. 71413, 71414-17 (finding of ineffective
accommodation need not be made on a program-wide
basis but can be limited to “disparities in benefits,
treatment, services, or opportunities in individual
segments of the program[.]”).
If programmatic review is necessary then, as
McCormick indicates, programmatic harm occurs
when women are denied access to resources or
competitions, or lose, for example placements, or a
starting role or other similar opportunity in women’s
sports due to an institutional policy or decision.
McCormick suggests that discriminatory policies
constitute programmatic harm per se. It is
impermissible to subject girls to a glass ceiling on
35
potential athletic attainment when “boys are subject
to no such ceiling.” McCormick, 370 F.3d at 295. It is
unlawful to “send[] a message to ... girls ... that they
are not expected to succeed and that the school does
not value their athletic abilities as much as it values
the abilities of the boys.” Id. But allowing men in
women’s sports does just that. Title IX violations occur
when a male athlete is put in a position where officials
know he will take resources or opportunities from
women.
VI.
The Title IX Athletics Regulation
Presumes That Biology Matters, and Title
VII Does Not
The unique way in which sports opportunities
and resources are allocated and equalized under the
athletics regulation, i.e., through sex-separation, is
also why the Court’s reasoning in Bostock v. Clayton
County for resolving discrimination in employment is
fundamentally incompatible with the scholastic sports
context. Bostock adopted the “change one thing at a
time and see if the outcome changes” approach to
determining whether a person’s sex was a “but-for
cause” of an employment action. Bostock, 590 U.S. at
656. This approach presumes that biology (i.e., male
vs. female differences) is largely irrelevant in most
employment contexts. But biology is highly relevant in
sports. “Congress itself recognized that addressing
discrimination in athletics presented a unique set of
problems not raised in areas such as employment and
academics. See, e.g., Sex Discrim. Regs., Subcomm.
Hrg. on Post Secondary Educ. of the Comm. on Educ.
and Labor, 94th Cong. 1st Sess. at 46, 54, 125, 129,
152, 177, 299-300 (1975); 118 Cong.Rec. 5,807 (1972)
36
(Sen. Bayh); 117 Cong.Rec. 30,407 (1971) (same).”
Kelley v. Bd. of Trs., 35 F.3d 265, 270 (7th Cir. 1994).
The Title IX athletics regulation makes clear
that equal opportunity for women is typically achieved
by excluding men from women’s sports. “In fact, the
Title IX framework effectively requires a recipient to
maintain separate sports teams.” Soule v. Connecticut
Ass’n of Sch., Inc., 90 F.4th 34, 63 (2d Cir. 2023)
(Menashi, J. and Park, J., concurring). In many cases
equal opportunity for women vis-à-vis men may not be
achievable in any other way. Neal, 198 F.3d at 769
(“Title IX permits a university to diminish athletic
opportunities available to men so as to bring them into
line with the lower athletic opportunities available to
women.”); Williams, 998 F.2d at 175 (Title IX requires
“equalizing the numbers of sports teams offered for
boys and girls.”); Clark, By & Through Clark v.
Arizona Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th
Cir. 1982) (approving exclusion of males from Arizona
high school volleyball).
Regrettably, some courts have misapplied
Bostock’s approach to competitive sports to require the
very thing Title IX prohibits: men taking women’s
opportunities and invading their private spaces.
Applying Bostock in competitive sports and/or locker
room cases makes no sense because the Title IX
athletics regulation itself presumes transcendent
biological differences. Bostock’s Title VII approach to
the employment world, where sex differences should
not matter, simply does not account for the unique way
in which Title IX sex-separation achieves equal
opportunity for women on the athletic field and in the
37
locker room and showers where sex differences do
matter.
Title IX and its athletics regulation forbid a
man from depriving women of, or diverting to a man,
equal opportunity in sport, including placements,
awards, publicity, locker room access and privacy.
They require covered entities to “level the proverbial
playing field” between men and women through sexseparation, Neal, 198 F.3d at 769, and having done so,
they may not purposefully unlevel it to favor a man.
CONCLUSION
The challenged state laws in Idaho and West
Virginia should be upheld to protect women’s Title IX
rights which have been undermined by the rules of
high school and college athletic associations. The
judgments of the Court of Appeals should be reversed.
Respectfully submitted,
WILLIAM BOCK III
Counsel of Record
Justin R. Olson
KROGER GARDIS AND REGAS, LLP
111 Monument Circle Ste 900
Indianapolis, Indiana 46204
(317) 777-7412
wbock@kgrlaw.com
Counsel for Amicus Curiae
September 19, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.