Amicus Curiae Brief — West Virginia, et al., Petitioners v. B. P. J., By Her Next Friend and Mother, Heather Jackson

No. 24-43

In the

Supreme Court of the United States

WEST VIRGINIA, et al.,

Petitioners,

v.

B. P. J., BY HER NEXT FRIEND

AND MOTHER, HEATHER JACKSON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

AMICUS CURIAE BRIEF

OF NC VALUES INSTITUTE

IN SUPPORT OF PETITIONERS

Tami Fitzgerald

NC Values Institute

9650 Strickland Road,

Suite 103-226

Raleigh, NC 27615

(980) 404-2880

tfitzgerald@ncvalues.org

Debbie Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

130258

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

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

INTRODUCTION AND SUMMARY OF THE

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

BOSTOCK MUST BE NA RROW LY

INTERPRETED AND APPLIED . . . . . . . . . . . 4

II. BOSTOCK’S EXTREME LITERALISM

WARRANTS RESTRAINT . . . . . . . . . . . . . . . . 6

A. Bostock’s extreme literalism confuses

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

B. B o s t o c k ’s e x t r e m e l i t e r a l i s m

ignores biological reality, including

physiological differences between

men and women that are relevant to

athletic competition . . . . . . . . . . . . . . . . . . . . 8

C. Bostock’s extreme literalism leads

to illog ical results as applied to

athletics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

Table of Contents

Page

D. Bostock’s extreme literalism leads

to a bizarre rewriting of the legal

standard for “facial discrimination.” . . . . . 12

E. Bostock’s extreme literalism destroys

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

III. BOSTOCK ’S A PPROACH 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

IV. THE UNHINGED EXTENSION OF

BOSTOCK RAISES CONSTITUTIONAL

C O N C E R N S T H A T WA R R A N T

JUDICIAL RESTRAINT . . . . . . . . . . . . . . . . . 19

A. Bos t o c k r a i s e s c onc e r n s ab out

the Constitution’s sepa ration of

powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii

Table of Contents

Page

B. Bos t o c k r a i s e s c onc e r n s ab out

democratic accountability and the

rule of law . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

V.

THE WORD “DISCRIMINATION” BEGS

FOR CLARIFICATION . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iv

TABLE OF CITED AUTHORITIES

Page

CASES

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

57 F.4th 791 (11th Cir. 2022) . . . . . . . . . 6-7, 8, 10, 16, 18

Att’y Gen. v.

Mass. Interscholastic Athletic Ass’n,

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

Bauer v. Lynch,

812 F.3d 340 (4th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 15

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) . . . . 11

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) . . . . . . . . . 8, 12, 13, 14, 16,

17, 18, 19, 22

Bostock v. Clayton County, Georgia,

140 S. Ct. 1731 (2020) . . 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14,

15, 16, 17, 18, 19, 20, 21

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

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

v

Cited Authorities

Page

Cochise Consultancy, Inc. v.

United States ex rel. Hunt,

139 S. Ct. 1507 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Doe by & through Doe v.

Boyertown Area Sch. Dist.,

897 F.3d 518 (3d Cir. 2018) . . . . . . . . . . . . . . . . . . . . . 17

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, 18, 22

Grove City Coll. v. Bell,

465 U.S. 555 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hecox v. Little,

479 F. Supp. 3d 930 (D. Idaho 2020) . . . . . . . 2, 3, 5, 12

Little v. Hecox,

2024 U.S. App. LEXIS 13929 (9th Cir. 2024) . . . 3, 12

Meriwether v. Hartop,

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

Michael M. v. Superior Ct.,

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

Milliken v. Bradley,

418 U.S. 717 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

vi

Cited Authorities

Page

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) . . . . . . . . . . . . . . . . . . . 17

Pelcha v. MW Bancorp, Inc.,

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

Peltier v. Charter Day Sch., Inc.,

37 F.4th 104 (4th Cir. 2022) (en banc) . . . . . . . . . . . . 16

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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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

United States v. Virginia,

518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19

Williams v. Sch. Dist. of Bethlehem,

998 F.2d 168 (3d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 13

vii

Cited Authorities

Page

STATUTES

Title VII, 42 U.S.C. § 2000e et seq. . . . . 4, 6, 7, 14, 15, 22

Title IX, 20 U.S.C. §§ 1681-1688 . . . . . . . 2, 4, 6, 7, 8, 9, 10,

13, 14, 16, 17, 18,

19, 20, 21, 22

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

20 U.S.C. § 1686 . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 18

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

W. Va. Code § 18-2-25d . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

OTHER AUTHORITIES

34 C.F.R. § 106.33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 18

34 C.F.R. § 106.34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

34 C.F.R. § 106.41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

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

Stephen Breyer, Active Liberty

(Vintage Books 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

viii

Cited Authorities

Page

Kim Forde-Mazrui, Article: Why the Equal

Ri gh t s Am e n d m e n t Wo u l d En d a n ge r

Women’s Equality: Lessons From Colorblind

Constitutionalism, 16 Duke J. Const. Law &

Pub. Pol’y 1 (Spring 2021) . . . . . . . . . . . . . . . . 13-14, 19

Jacqualy n Gillen, Comment: Str iking 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) . . . . . . . . . . . . . . . . . . 3

Rena M. Lindevaldsen, Ar ticle: Bostock v.

Clayton County: A Pirate Ship Sailing Under

a Textualist Flag, 33 Regent U.L. Rev. 39

(2020-2021) . . . . . . . . . . . . . . . . . . . . . 3, 5, 7, 8, 9, 22, 23

Memorandum from Pamela Karlan, Application

of Bostock v. Clayton County to Title IX

of the Education A mendments 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

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 . . . . . . . . . . 10

ix

Cited Authorities

Page

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, 15, 16, 22, 23

The Federalist No. 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

https: //w w w.edf i rstnc.org /post /female -hsvol leyba l l-player - ser iously-i nju red-byalleged-trans-competitor-in-north-carolina

(last visited July 23, 2024) . . . . . . . . . . . . . . . . . . . . . . 1

1

INTEREST OF AMICUS CURIAE1

Amicus curiae urges this Court to grant the Petition

and reverse the Fourth Circuit ruling.

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.

This case is particularly important in North Carolina,

which is also in the Fourth Circuit. 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 Cerokee 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. Counsel of record for all parties received notice at least 10

days prior to the due date of amicus curiae’s intention to file this

brief. 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.

2. https://w w w.edfirstnc.org/post/female-hs-volleyballplayer-seriously-injured-by-alleged-trans-competitor-in-northcarolina (last visited July 23, 2024).

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This Court should grant two concurrently filed

Petitions—this case, B.P.J. v. West Virginia, and the

concurrently filed Petition in Hecox v. Little, Docket

No. 24-38. The Fourth and Ninth Circuit decisions are

egregiously wrong and should be reversed without delay.

Granting both Petitions will enable the Court to address

the Title IX and the Equal Protection questions raised

by the West Virginia and Idaho state laws at issue. In

addition, the Court should distinguish these two petitions

from the issues raised by United States v. Skrmetti,

Docket No. 23-477, an important case which this Court

recently granted concerning the protection of minor

children from dangerous sex transition procedures that

may cause irreparable harm. All three cases are related

to transgender ideology, but the issues in B.P.J. and Hecox

are entirely different than those raised in Skrmetti.

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). As amicus curiae explains in this

3

brief, this Court’s opinion in Bostock v. Clayton County,

140 S. Ct. 1731 (2020) does not require athletic teams to

be separated on the basis of 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 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, 2024 U.S. App. LEXIS

13929, *9-10 (9th Cir. 2024). Idaho’s law is the subject of

the concurrently filed Petition for Certiorari, Docket No.

24-38.

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 is urgently needed to ensure that lower

courts exercise judicial restraint rather than mechanically

extending Bostock to other unrelated contexts, such as

sports.

4

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 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, 140 S. Ct. at 1753. “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 pounding on

this Court’s door.

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

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

discrimination because of sex.” Bostock, 140 S. Ct. at 1778

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

private facilities would be next on the chopping block. “The

5

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 17781779 (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 1779. 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 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

(sex reassignment surgeries), 3 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, 140 S. Ct. at

1780-1783 (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,

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).

6

Inc., 988 F.3d 318, 324 (6th Cir. 2021). This Court should

grant certiorari to advise other courts to follow this

reasoning.

II. B O S T O C K ’ S E X T R E M E L I T E R A L I S M

WARRANTS RESTRAINT.

Legal activists are using Bostock as a springboard

to coerce sweeping social engineering in other unrelated

contexts. Advocates demand that courts reinterpret a

broad swath of anti-discrimination 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, 140 S. Ct. at 1753.

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 should heed this warning

but they have not.

A.

Bostock’s ex treme literalism con f uses

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

7

(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).

The Bostock majority admitted that “homosexuality

and transgender status are distinct concepts from sex.”

140 S. Ct. at 1746-47. Neither concept is “tied to either of

the two biological sexes.” Id. at 1758 (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

ensues.

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, 140 S. Ct. at 1761 (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.” 140 S. Ct. at 1739. “[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, 972 F.3d at 632 (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).

“To fail to acknowledge even our most basic biological

differences . . . risks making the guarantee of equal

9

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

535 (4th Cir. 2020) (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,” “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”);

10

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 1972.4

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 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

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

html (last modified Jan. 10, 2020).

11

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, allow ing 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

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).

12

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, 2024 U.S. App.

LEXIS 13929, *32, quoting Pac. Shores Props., LLC v.

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

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.

13

E. Bostock’s extreme literalism destroys the whole

concept of women’s sports.

The expanded application of Bostock is on a collision

course w ith 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 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

14

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

IM PORT ED I N TO A M UCH DIFFEREN T

CONTEXT.

One of the problems w ith cases like Bostock,

where courts fashion legal rules never contemplated 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, 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).

15

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.” 140

S. Ct. at 1744. 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 1735 (emphasis added). This generally makes sense;

employers hire individual employees, not entire groups.

But even in 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

1104-1105. 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, 140 S. Ct. at

1748 (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

16

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, 140 S. Ct. at 1780 (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, “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—for biological women specifically—the

Fourth Circuit explicitly contends 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 and ballgames are not analogous.

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

It does not change a person’s biology or physical

17

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 agencies5 have radically 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 pro-transgender

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

5. 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

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, 140 S. Ct. at 174142, the Fourth Circuit reasoned that a discriminator

“necessarily refer[s] to the individual’s sex to determine

incongruence between sex and gender, making sex a butfor 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.

19

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., 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 sexexclusive 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, 140

S. Ct. at 1824 (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).

20

A.

Bostock raises concerns about the Constitution’s

separation of powers.

Bostock did an “end-r un around the bedrock

separation-of-powers principle that courts may not

unilaterally rewrite statutes.” Bostock, 140 S. Ct. at

1824 (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 1755

(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, 140 S. Ct. at

1824 (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 responsive

to their concerns, depriving individuals of their liberty

to participate in a contentious matter of public concern.

21

“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, 140 S. Ct. at 1778 (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 1825 (Kavanaugh,

J., dissenting). This extreme literalism “deprives the

citizenry of fair notice of what the law is.” Id. at 1828.

Lower courts should not replicate this questionable

approach in litigating Title IX.

V. THE WORD “DISCRIMINATION” BEGS FOR

CLARIFICATION.

In Bostock, the 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, 140 S. Ct. at 1740. But

this quick question-answer only 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

22

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 claims 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, 140

S. Ct. at 1740). 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). 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 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

23

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 non-discrimination

“requires a set-aside for biological females,” due to their

physiological disadvantage, differs from “virtually every

other concept of non-discrimination.” Rosman, Gender

Identity, Sports, 53 St. Mary’s L. J. at 1096. Surely we

have fallen down the rabbit hole in Alice’s Wonderland.

CONCLUSION

This Court should reverse the Fourth Circuit decision.

Respectfully submitted,

Tami Fitzgerald

NC Values Institute

9650 Strickland Road,

Suite 103-226

Raleigh, NC 27615

(980) 404-2880

tfitzgerald@ncvalues.org

Debbie Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae