Amicus Curiae Brief — West Virginia, et al., Petitioners v. B. P. J., By Her Next Friend and Mother, Heather Jackson
Supreme Court briefSep 19, 2025
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No. 24-43
In the Supreme Court of the United States
_______________________________
STATE OF WEST VIRGINIA, ET AL.,
Petitioners,
v.
B.P.J., BY NEXT FRIEND AND MOTHER,
HEATHER JACKSON,
Respondent.
______________________________
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF AMICUS CURIAE OF THE
NEW CIVIL LIBERTIES ALLIANCE IN
SUPPORT OF PETITIONERS
Casey Norman
Counsel of Record
Andreia Trifoi
Mark Chenoweth
NEW CIVIL LIBERTIES
ALLIANCE
4250 N. Fairfax Dr.
Suite 300
Arlington, VA 22203
(202) 869-5210
Casey.Norman@ncla.legal
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICUS CURIAE ............................ 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT................................................................ 5
I.
THE FOURTH CIRCUIT’S EXPANSION OF TITLE IX TO
ENCOMPASS GENDER IDENTITY DEFIES THE
STATUTE’S PLAIN MEANING AND THE SPENDING
CLAUSE’S CLEAR STATEMENT REQUIREMENT......... 5
A. Title IX’s Text, Structure, and History Make
Clear that “Sex” Means Biological Sex ........... 8
B. Title IX’s Regulatory History Further
Confirms that “Sex” Does Not Encompass
Gender Identity ............................................. 12
II. THE SPENDING CLAUSE CANNOT BE WIELDED TO
CIRCUMVENT THE SEPARATION OF POWERS NOR TO
INVADE STATE SOVEREIGNTY ............................... 15
A. The Clear Statement Rule Safeguards State
Sovereignty .................................................... 16
B. The Clear Statement Rule Serves as a Vital
Limitation on Congress’s Spending Power... 21
C. The Fourth Circuit’s Nullification of the Clear
Statement Rule Empowers Unaccountable
Executive Agencies to Rewrite the Law ....... 26
CONCLUSION .......................................................... 32
ii
TABLE OF AUTHORITIES
Cases
Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty.,
57 F.4th 791 (11th Cir. 2022) ...................... 9, 10, 12
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) .............................................. 6, 7
B.P.J. v. W. Va. State Bd. of Educ.,
649 F. Supp. 3d 220 (S.D. W. Va. 2023) ................ 19
B.P.J. v. W.Va. State Bd. of Educ.,
98 F.4th 542 (4th Cir. 2024) .............. 7, 9, 17, 18, 19
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley,
458 U.S. 176 (1982) ................................................ 17
Bennett v. Ky. Dep’t of Educ.,
470 U.S. 656 (1985) ................................................ 27
Biden v. Nebraska,
600 U.S. 477 (2023) ................................................ 31
Bond v. United States,
572 U.S. 844 (2014) .......................................... 16, 18
Bostock v. Calyton County,
590 U.S. 644 (2020) .................................................. 7
Cannon v. Univ. of Chi.,
441 U.S. 677 (1979) ................................................ 11
City of Chicago v. Fulton,
592 U.S. 154 (2021) ................................................ 10
Cummings v. Premier Rehab Keller, P.L.L.C.,
596 U.S. 212 (2022) ............................................ 6, 21
iii
Davis ex rel. LaShona D. v. Monroe Cnty. Bd. of
Educ.,
526 U.S. 629 (1999) ...................................... 6, 13, 17
Deanda v. Becerra,
96 F.4th 750 (5th Cir. 2024) .................................. 29
FCC v. Consumers’ Rsch,
606 U.S. ___, 145 S. Ct. 2482 (2025) ..................... 27
Frontiero v. Richardson,
411 U.S. 677 (1973) ............................................ 9, 15
Gregory v. Ashcroft,
501 U.S. 452 (1991) ................................................ 16
Grimm v. Gloucester Cnty. Sch. Bd.,
972 F.3d 586 (4th Cir. 2020) .................................... 9
Gundy v. United States,
139 S. Ct. 2116 (2019) ............................................ 27
Jones v. Rath Packing Co.,
430 U.S. 519 (1977) ................................................ 17
Kansas v. Dep’t of Educ.,
739 F. Supp. 3d 902 (D. Kan., 2024) ..................... 10
Kisor v. Wilkie,
588 U.S. 558 (2019) .................................................. 9
Loper Bright Enterprises v. Raimondo and Relentless
v. Dept. of Commerce,
603 U.S. 369 (2024) ...................................... 8, 28, 31
Louisiana v. Dep’t of Education,
737 F. Supp. 3d 377 (W.D. La. 2024) .............. 10, 14
McCormick ex rel. McCormick v. Sch. Dist. of
Mamroneck,
370 F.3d 275 (2d Cir. 2004) ................................... 11
iv
Murphy v. NCAA,
584 U.S. 453 (2018) ................................................ 21
New York v. United States,
505 U.S. 144 (1992) ................................................ 21
NFIB v. Sebelius,
567 U.S. 519 (2012) ................................ 6, 16, 20, 25
Oklahoma v. Cardona,
743 F. Supp. 3d 1314 (W.D. Okla. 2024) ............... 14
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) ............ 5, 6, 7, 8, 15, 17, 20, 22, 26
Printz v. United States,
521 U.S. 898 (1997) ................................................ 25
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947) ................................................ 16
Roe v. Critchfield,
137 F.4th 912 (9th Cir. 2025) .................................. 9
SEC v. Jarkesy,
603 U.S. 109 (2024) ................................................ 31
South Dakota v. Dole,
483 U.S. 203 (1987) ............................ 5, 6, 20, 21, 26
State v. Yellen,
539 F. Supp. 3d 802 (S.D. Ohio 2021) ................... 15
Tennessee v. Becerra,
739 F. Supp. 3d 467 (S.D. Miss. 2024) .................. 29
Tennessee v. Cardona,
737 F. Supp. 3d 510 (E.D. Ky. 2024) ............... 13, 14
Tennessee v. Cardona,
762 F. Supp. 3d 615 (E.D. Ky. 2025) ..................... 29
Texas v. Cardona,
743 F. Supp. 3d 824 (N.D. Tex. 2024) ................... 10
v
Texas v. United States,
201 F. Supp. 3d 810 (N.D. Texas 2016)................... 9
United States v. Butler,
297 U.S. 1 (1936) .................................................... 15
Washington v. Seattle Sch. Dist. No. 1,
458 U.S. 457 (1982) ................................................ 23
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ................................................ 27
Williams v. Sch. Dist. of Bethlehem,
998 F.2d 168 (3d Cir. 1993) ................................... 13
Wisconsin v. Yoder,
406 U.S. 205 (1972) .......................................... 20, 23
Ysla v. United States,
171 Fed. Cl. 333 (2024) .......................................... 13
Statutes
20 U.S.C. § 1681(a) ...................................... 4, 8, 20, 26
20 U.S.C. § 1681(a)(2) ............................................... 10
20 U.S.C. § 1681(a)(8) ............................................... 10
20 U.S.C. § 1686(a) .................................................... 10
20 U.S.C. § 3401(4) .................................................... 23
20 U.S.C. § 3403(a) .................................................... 23
20 U.S.C. § 3403(b) .................................................... 23
W. Va. Code § 18-2-2-25d .......................................... 18
Other Authorities
118 CONG. REC. 5808 (1972) ...................................... 11
Benjamin Ayanian & Ilan Wurman, The Constitution
Provides Answers to Our Federal Debt Problem,
RealClear Pol. (Jan. 24, 2025),
vi
https://www.realclearpolitics.com/articles/2025/01/
24/the_
constitution_provides_answers_to_our_federal_deb
t_problem_152236.html ......................................... 24
Deborah Blake, The Struggle for Sex Equality in
Sport and the Theory Behind Title IX,
34 U. Mich. J.L. Reform 13 (2000) .................. 12, 13
James Wilson, State House Speech, October 6, 1787,
in Pennsylvania and the Federal Constitution
1787-1788 142 (John Bach McMaster & Frederick
D. Stone, eds., 1888) .............................................. 22
Madeline Coggins, Trans Athlete Sparks Outrage
After Toppling Women’s Powerlifting World
Record: ‘Completely Unfair,’
Fox Business (Aug 20, 2023),
https://www.foxbusiness.com/politics/trans-athletesparks-outrage-toppling-womens-powerliftingworld-record-completely-unfair ............................. 20
Mark Seidenfeld, The Bounds of Congress’s Spending
Power,
61 Ariz. L. Rev. 1 (2019) ........................................ 30
Massachusetts School Calls for Change After Female
Field Hockey Player Hurt by Boy’s Shot,
CBS News (Nov. 6, 2023),
https://www.cbsnews.com/boston/news/massachuse
tts-field-hockey-male-female-injury-swampscottdighton-rehoboth/................................................... 19
Neal McCluskey, Schoolhouse Burning: Public
Education and the Assault on American
Democracy,
vii
Cato Journal (2021), https://www.cato.org/catojournal/fall-2021/schoolhouse-burning-publiceducation-assault-american-democracy................ 23
Participation in High School Sports Hits Record
High with Sizable Increase in 2024-25,
Nat’l Fed. of State High Sch. Assn’s (Sept. 9, 2025),
https://nfhs.org/stories/participation-in-highschool-sports-hits-record-high-with-sizableincrease-in-2024-25................................................ 13
Peter J. Smith, Pennhurst, Chevron, and the
Spending Power,
110 Yale L.J. 1187 (2001) ...................................... 28
Philip Hamburger, Purchasing Submission:
Conditions, Power, and Freedom (2021) .. 21, 22, 24,
25, 28, 29, 30, 31
Ray Lewis, Transgender Runner Breaks Two
Women’s Records for New York College, Sparking
Debate,
ABC 3340 News (Jan 30, 2024),
https://abc3340.com/news/nationworld/transgender-runner-breaks-two-womensrecords-for-new-york-college-sparking-debaterochester-institute-of-technology-track-and-fieldsprint-athlete-sports-ncaa-lgbt ............................. 20
Ryan Gaydos, Trans Athlete Fires Message Toward
Critics After Dominating Girls’ 400 for State Title,
Fox News (June 2, 2025),
https://www.foxnews.com/sports/trans-athletefires-message-toward-critics-after-dominatinggirls-400-state-title ................................................ 20
viii
Seth Lucas, Equality on What Basis? Evaluating
Title IX’s Requirements in the Transgender
Context,
31 Geo. Mason. L. Rev. 389 (2023) .................. 11, 12
The Federalist No. 41 (James Madison) ................... 22
The Federalist No. 45 (James Madison) ................... 22
Valerie Richardson, Girls Left in Dust as Male-Born
Transgender Athletes Take State Track Titles in
Five States,
Wash. Times (June 16, 2024),
https://www.washingtontimes.com/news/2024/jun/1
6/transgender-athletes-leave-girls-dust-winningtrac/......................................................................... 19
Zoe Christen-Jones, The Bans on Transgender
Athletes – 6 Facts,
CBS News (June 7, 2021),
https://www.cbsnews.com/news/transgenderathlete-bans-facts/ ........................................... 19, 25
Regulations
34 C.F.R. § 106.41(a) ................................................. 12
34 C.F.R. § 106.41(b) ................................................. 12
Nondiscrimination on the Basis of Sex in Education
Programs or Activities Receiving Federal Financial
Assistance,
87 Fed. Reg. 41,390 (proposed July 12, 2022) ...... 14
1
INTEREST OF AMICUS CURIAE1
The New Civil Liberties Alliance (“NCLA”) is a
nonpartisan, nonprofit civil-rights organization and
public-interest law firm devoted to defending
constitutional freedoms from the administrative
state’s depredations. Professor Philip Hamburger
founded NCLA to challenge multiple constitutional
defects in the modern administrative state through
original litigation, amicus curiae briefs, and other
advocacy.
The “civil liberties” of the organization’s name
include rights at least as old as the U.S. Constitution
itself, such as the right to a jury trial, to due process
of law, and to have laws made by the nation’s elected
legislators through constitutionally prescribed
channels (i.e., the right to self-government). These
selfsame civil rights are also very contemporary—and
in dire need of renewed vindication—precisely
because Congress, executive branch officials,
administrative agencies, and even some courts have
neglected them for so long.
NCLA aims to defend civil liberties—primarily
by asserting constitutional constraints against the
modern administrative state. Although Americans
1 No party’s counsel authored any portion of this brief, and no
party, party counsel, or other person other than amicus curiae
made a monetary contribution intended to fund this brief’s
preparation or submission. See S. Ct. R. 37.6.
2
still enjoy the shell of their Republic, a very different
sort of government has developed within it—a type
that the Constitution was designed to prevent. This
unconstitutional state within the Constitution’s
United States is the focus of NCLA’s concern.
Congress’s virtually unfettered practice of
imposing “conditions” on federal spending is
particularly disturbing. Far too often, Congress
attaches sweeping conditions on the receipt of federal
funds, thereby insidiously defeating constitutional
guarantees. When Congress purports to tell States
how to regulate education—a power traditionally
recognized as reserved to the States—it necessarily
intrudes upon state sovereignty. Whatever legitimacy
Congress has to legislate via conditions under the
Spending Clause, it exists only to the extent that the
States and their institutions knowingly and
voluntarily accept those conditions.
NCLA was founded to restore constitutional
limits on administrative power and to protect the civil
liberties of all Americans, including the right to be
governed only by duly enacted laws and the right to
public education that is regulated by the respective
States—not by Congress or federal agencies. By
expanding Title IX to encapsulate gender identity, the
Fourth Circuit effectively sanctioned a usurpation of
state regulatory authority—authority that is
expressly reserved to the States by the Constitution’s
enumeration of limited federal powers and the Tenth
3
Amendment. It also flouted the constitutional limits
on Congress’s Spending Clause authority firmly
established under this Court’s precedent.
SUMMARY OF ARGUMENT
The Fourth Circuit’s ruling nullifies the clear
statement requirement of the Constitution’s Spending
Clause and defies the important limitations the
Supreme Court has placed on Congress’s ability to
legislate via spending conditions. The decision below
should therefore be reversed.
The Fourth Circuit ignored the fundamental
premise that Title IX was enacted pursuant to
Congress’s Spending Clause authority, and, in doing
so, it failed to grapple with the constitutional
requirements that govern the interpretation and
application of such legislation. Chief among those
requirements—recognized by this Court for decades—
is that any conditions attached to federal funding be
stated clearly and unambiguously by Congress. That
requirement derives from the contract-like nature of
Spending Clause legislation: Congress may regulate
beyond its enumerated powers via spending
conditions only insofar as States knowingly and
voluntarily accept the conditions attached to their
receipt of federal funds.
Congress spoke clearly and unambiguously
when it passed Title IX in 1972. By prohibiting
discrimination on the basis of “sex,” Congress
4
unambiguously referred to biological sex, not gender
identity. See 20 U.S.C. § 1681(a). At that time, States
accepting federal funds could only have understood
the term “sex” to mean the physiological distinctions
between females and males, as contemporaneous
sources confirm. Indeed, the concept of gender
identity was virtually unknown in 1972 and could not
have informed Congress’s choice of language.
By holding that Title IX protects against
discrimination on the basis of “gender identity,”
however, the Fourth Circuit impermissibly rewrote
the statute, expanding it far beyond its plain meaning.
The lower court, in effect, injected ambiguity into a
statute that had always been clear, thereby
contravening the Constitution’s clear statement
requirement. That approach not only distorts Title IX
but also undermines this Court’s longstanding
precedent upholding the clear statement requirement
as an essential limitation on Congress’s power to
regulate the States through conditions on spending.
Further, the Fourth Circuit’s expansive
interpretation of Title IX threatens both State
sovereignty and the separation of powers. Accepting
its interpretation would seriously erode the clear
statement rule—a key structural constraint on
Congress’s spending power—and effectively license
Congress to impose ambiguous spending conditions.
Such a result would undermine the States’ ability to
govern core areas, such as education, extending the
5
federal government’s power over the affairs of the
States far beyond its enumerated powers. It would
also empower executive agencies to exploit statutory
ambiguity, enabling them to wield spending
conditions against the States in ways that Congress
never clearly authorized.
The Constitution does not permit such a
subversion of the separation of powers and federalism.
This Court should therefore reject the Fourth Circuit’s
broad interpretation of Title IX and uphold the clear
statement
requirement
as
a
meaningful
Constitutional limitation on Congress’s already broad
power under the Spending Clause.
ARGUMENT
I.
THE FOURTH CIRCUIT’S EXPANSION OF TITLE
IX TO ENCOMPASS GENDER IDENTITY DEFIES
THE STATUTE’S PLAIN MEANING AND THE
SPENDING CLAUSE’S CLEAR STATEMENT
REQUIREMENT
Title IX—as construed by the Fourth Circuit—
violates the Spending Clause’s clear-statement
requirement. Congress’s power to attach conditions to
federal funds “is of course not unlimited.” South
Dakota v. Dole, 483 U.S. 203, 207 (1987). Conditions
are valid only if Congress states them clearly, so that
States may “exercise their choice knowingly,
cognizant of the consequences of their participation.”
Id. (quoting Pennhurst State Sch. & Hosp. v.
Halderman, 451 U.S. 1, 17 (1981)); see also NFIB v.
6
Sebelius, 567 U.S. 519, 577 (2012). By expanding Title
IX to prohibit gender-identity discrimination, the
lower court effectively imposed a funding condition
that Congress never enacted, let alone clearly stated.
Indeed, the statute prohibits discrimination on the
basis of “sex,” a term that, in 1972 and for decades
thereafter, was universally understood to refer to
biological sex.
In treating “gender identity” as
interchangeable with “sex,” the Fourth Circuit
stripped Title IX of the clarity that the Constitution
demands—namely, that Congress “speak with a clear
voice” to the States with respect to federal funding
conditions. See Davis ex rel. LaShona D. v. Monroe
Cnty. Bd. of Educ., 526 U.S. 629, 640 (1999).
This Court has repeatedly explained that
Spending Clause legislation operates “much in the
nature of a contract: in return for federal funds, the
[recipients] agree to comply with federally imposed
conditions.” Cummings v. Premier Rehab Keller,
P.L.L.C., 596 U.S. 212, 216 (2022); see also Pennhurst,
451 U.S. at 17. As with any contract, the terms must
be set out clearly. Thus, when Congress seeks to
condition States’ acceptance of federal funds, it “must
do so unambiguously[.]” Pennhurst, 451 U.S. at 17.
States “cannot knowingly accept conditions … they
are ‘unable to ascertain.’” Arlington Cent. Sch. Dist.
Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). The
legitimacy of Congress’s exercise of the spending
power “rests on whether the State voluntarily and
7
knowingly accepts the terms of the contract.”
Pennhurst, 451 U.S. at 17.
To determine whether States have received the
requisite clear notice of a federal funding condition,
this Court has instructed that the inquiry must be
conducted “from the perspective of a state official who
is engaged in the process of deciding whether the
State should accept [the grant of] funds and the
obligations that go with those funds.” Murphy, 548
U.S. at 296. Congress enacted Title IX in 1972
pursuant to its Spending Clause authority. See B.P.J.
v. W.Va. State Bd. of Educ., 98 F.4th 542, 574 (4th Cir.
2024).
The relevant question here, then, is
straightforward: would the State of West Virginia and
its educational institutions have understood Title IX
to prohibit discrimination on the basis of gender
identity in 1972? The answer is plainly no. The
concept of gender identity was “essentially unknown”
at the time. See Bostock v. Calyton County, 590 U.S.
644, 685 (2020) (Alito, J., dissenting).
The logic of the Fourth Circuit’s ruling
collapses into one of two possible conclusions—both
constitutionally untenable. Either Title IX has been
invalid from the outset because it failed to give States
clear notice that “sex” encompassed “gender identity,”
see Pennhurst, 451 U.S. at 17, or Title IX now imposes
a new, “post-acceptance” condition, surprising States
with obligations that they never agreed to when they
accepted federal funds—something this Court has
8
flatly rejected. See id. at 24-25 (Congress’s Spending
Clause power “does not include surprising
participating States with post acceptance or
‘retroactive’ conditions.”).
Ultimately, the Constitution requires that
Congress, not the courts, make policy choices and
express them clearly in the text of Spending Clause
legislation. Title IX, as written, provides no notice
that its prohibition of sex discrimination extends to
gender identity. Courts cannot rewrite the law to
reflect policy preferences found nowhere in the text of
the statute, yet that is precisely what the Fourth
Circuit has done here, reading into Title IX a condition
that Congress never enacted and that the States never
accepted.
A. Title IX’s Text, Structure, and History
Make Clear that “Sex” Means Biological
Sex
Title IX prohibits discrimination “on the basis
of sex” in any “education program or activity receiving
Federal Financial assistance.” 20 U.S.C. § 1681(a)
(emphasis added). From its enactment, the statute’s
meaning was plain: “sex” referred to biological sex as
determined at birth.
Every traditional tool of
statutory interpretation—e.g., text, structure, and
history—confirms that understanding. See Loper
Bright Enterprises v. Raimondo and Relentless v.
Dept. of Commerce, 603 U.S. 369, 403 (2024) (“Courts
interpret statutes, no matter the context, based on the
9
traditional tools of statutory construction, not
individual policy preferences.”); Kisor v. Wilkie, 588
U.S. 558, 576 (2019).
The plain meaning of Title IX’s text is decisive.
At the time of its enactment in 1972, “virtually every
dictionary definition of ‘sex’ referred to the
physiological distinctions between males and
females.” Grimm v. Gloucester Cnty. Sch. Bd., 972
F.3d 586, 632 (4th Cir. 2020) (Niemeyer, J.,
dissenting) (emphasis in original). Contemporary
dictionaries defined “sex” simply as “male or female …
with reference to their reproductive functions.”
B.P.J., 98 F.4th at 574 (Agee, J., concurring in part)
(internal quotations omitted). The Supreme Court
confirmed the same point just one year later,
recognizing sex as “an immutable characteristic
determined solely by the accident of birth.” Frontiero
v. Richardson, 411 U.S. 677, 686 (1973). Courts across
the country have come to the same conclusion: that, in
1972, the ordinary public meaning of “sex” was
biological sex, not gender identity. See Adams ex rel.
Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791,
812 (11th Cir. 2022); Roe v. Critchfield, 137 F.4th 912,
929 (9th Cir. 2025); Texas v. United States, 201 F.
Supp. 3d 810, 833 (N.D. Texas 2016).
Title IX’s structure and statutory carve-outs
likewise confirm that Congress understood “sex” in
binary, biological terms. For example, the statute
delays its application to institutions that “admit[] only
10
students of one sex” while such institutions transition
to admitting “students of both sexes.” 20 U.S.C.
§ 1681(a)(2); see also Kansas v. Dep’t of Educ., 739 F.
Supp. 3d 902, 920 (D. Kan., 2024) (“It is clear from
[Title IX’s] statutory language that the term ‘sex’
refers to the traditional binary concept of biological
sex.”). Other express exceptions in the statute—e.g.,
for separate living facilities, see 20 U.S.C. § 1686(a),
and for father-son or mother-daughter activities, 20
U.S.C. § 1681(a)(8)—make sense only if “sex” refers to
biological males and females. If “sex” were instead a
fluid or subjective concept, rather than an immutable
physiological characteristic, such provisions would
effectively be meaningless as students could claim
simultaneous access to facilities and activities
designated for both their biological sex and their
asserted gender identity, whenever the two diverge.
Adams, 57 F.4th at 813; see also Louisiana v. Dep’t of
Education, 737 F. Supp. 3d 377, 399 (W.D. La. 2024).
That interpretation of “sex” would nullify the carefully
drawn statutory exceptions, in direct violation of the
canon against surplusage, which is “strongest when
an interpretation would render superfluous another
part of the same statutory scheme.” City of Chicago v.
Fulton, 592 U.S. 154, 159 (2021) (quoting Yates v.
United States, 574 U.S. 528, 543 (2015)).
The history and context of Title IX further
reinforce that its protections extend only to
discrimination on the basis of biological sex. See Texas
v. Cardona, 743 F. Supp. 3d 824, 875 (N.D. Tex. 2024)
11
(recognizing that “what dictionaries say” about the
meaning of “sex” in Title IX, “‘statutory and historical
context’ confirm.”) (citing Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 471 (2001)). “Title IX was
enacted in response to evidence of pervasive
discrimination against women with respect to
educational opportunities.”
McCormick ex rel.
McCormick v. Sch. Dist. of Mamroneck, 370 F.3d 275,
286 (2d Cir. 2004); accord Cannon v. Univ. of Chi., 441
U.S. 677, 704 & n.36 (1979). As the statute’s chief
sponsor, Senator Birch Bayh of Indiana, explained,
Title IX was enacted to “provide for the women of
America something that is rightfully theirs—an equal
chance … to develop the skills they want.” 118 CONG.
REC. 5808 (1972).
The feminist movement that preceded and
spurred Congress’s enactment of Title IX did not
argue that there are no biological differences between
men and women, but instead “challenged the
perception of womanhood as understood in relation to
social and domestic roles” by insisting that a “woman’s
social roles should not be defined by her body.” Seth
Lucas, Equality on What Basis? Evaluating Title IX’s
Requirements in the Transgender Context, 31 Geo.
Mason. L. Rev. 389, 397 (2023). And Title IX sent a
“clear message” that women’s bodies should not
determine their opportunities. Id. at 419. Far from
blurring the lines between male and female, Title IX
recognized that, although men and women have
immutable physiological differences, those differences
12
provide no basis for denying women the opportunity
to pursue their goals. Id. at 437.
B. Title IX’s Regulatory History Further
Confirms
that
“Sex”
Does
Not
Encompass Gender Identity
Though Title IX itself is silent on athletics, its
implementing regulations make clear that the statute
was enacted to provide women with more
opportunities to participate in school sports. See
Adams, 57 F.4th at 816. Those regulations provide,
inter alia, that “[n]o person shall, on the basis of sex,
be excluded from participation in … any
interscholastic, intercollegiate, club or intramural
athletics offered by a recipient [of federal funds], and
no recipient shall provide any such athletics
separately on such basis.” 34 C.F.R. § 106.41(a). They
also clarify that schools may “sponsor separate teams
for members of each sex where selection for such
teams is based upon competitive skill or the activity
involved is a contact sport.” Id. § 106.41(b).
The impact of this framework following Title
IX’s inception has been dramatic. In the year prior to
its enactment, “fewer than 300,000 female students
participated in interscholastic athletics.” Deborah
Blake, The Struggle for Sex Equality in Sport and the
Theory Behind Title IX, 34 U. Mich. J.L. Reform 13,
15 (2000). In 2025, there are over 3.5 million female
students participating in high school sports, alone.
See Participation in High School Sports Hits Record
13
High with Sizable Increase in 2024-25, Nat’l Fed. of
It is
State High Sch. Assn’s (Sept. 9, 2025).2
undeniable that the passage of Title IX sparked a
“virtual revolution for girls and women in sports.”
Blake, supra, at 15. Although purposivism alone
cannot supply the meaning of statutory text, see Ysla
v. United States, 171 Fed. Cl. 333, 347 (2024), Title
IX’s purpose remains a relevant aid in confirming its
proper interpretation: “It would require blinders to
ignore that the motivation for promulgation of the
regulation on athletics was the historic emphasis on
boys’ athletic programs to the exclusion of girls’
athletic programs in high schools as well as colleges.”
Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 175
(3d Cir. 1993).
This Court has recognized that agency
regulations can, under certain circumstances, provide
the notice required under the Spending Clause. See
Davis, 526 U.S.at 630. Here, the Department of
Education’s Title IX regulations only reinforce that
Title IX has long been understood to encompass only
biological sex. See Tennessee v. Cardona, 737 F. Supp.
3d 510, 558 (E.D. Ky. 2024). For decades, the
Department construed “sex” as a male-female binary,
and only after Bostock did it attempt—
unsuccessfully—to revise its Title IX regulations to
include gender identity. See Nondiscrimination on the
2 https://nfhs.org/stories/participation-in-high-school-sports-
hits-record-high-with-sizable-increase-in-2024-25.
14
Basis of Sex in Education Programs or Activities
Receiving Federal Financial Assistance, 87 Fed. Reg.
41,390 (proposed July 12, 2022).
Courts have since made clear that Bostock did
not “expand the meaning of ‘sex’ within Title IX” and,
thus, that ruling—made in the context of Title VII,
rather than Title IX—does not serve as a basis for
departing from the longstanding understanding of
“sex” in Title IX as a binary, biological construct.
Tennessee, 737 F. Supp. 3d at 559; see Oklahoma v.
Cardona, 743 F. Supp. 3d 1314, 1330 (W.D. Okla.
2024) (“Bostock was never intended to have a
sweeping impact on Title VII, let alone Title IX.”); see
Louisiana, 737 F. Supp. 3d at 399 (“Bostock does not
apply [to Title IX] because the purpose of Title VII to
prohibit discrimination in hiring is different than
Title IX’s purpose to protect biological women from
discrimination in education.”).
Neither the
Department of Education’s attempt at redefining
“sex” in 2022—50 years after Title IX was enacted—
nor the Supreme Court’s Bostock opinion provided
States with any semblance of clear notice that
accepting federal education funds over the decades
since Title IX’s enactment meant agreeing to prohibit
gender-identity discrimination. On the contrary, the
Department’s long history of treating Title IX’s
reference to sex as binary only further confirms that
the term signifies biological sex.
15
Title IX does not now—and never has—
prohibited discrimination on the basis of gender
identity. Indeed, from its enactment, both the courts
and the Department of Education have consistently
construed the statute as addressing only biological
sex. See Frontiero, 411 U.S. at 686. It is thus
inconceivable that West Virginia (or any other state
for that matter) could have understood Title IX to
impose a condition requiring the prohibition of
gender-identity discrimination when determining
whether to accept federal funds. Pennhurst, 451 U.S.
at 17.
II.
THE SPENDING CLAUSE CANNOT BE WIELDED
TO CIRCUMVENT THE SEPARATION OF POWERS
NOR TO INVADE STATE SOVEREIGNTY
While this Court has recognized that the
Spending Clause permits Congress to spend for the
general welfare under a contract-based theory of state
consent, see Pennhurst, 451 U.S. at 17, courts have, at
the same time, cautioned that “Congress’s unbridled
use of the Spending Clause [could] undermine the
balance of powers in our dual-sovereign federalist
system.” State v. Yellen, 539 F. Supp. 3d 802, 809
(S.D. Ohio 2021). As this Court observed, if Congress
could, through the use of spending conditions,
regulate indirectly what it could not regulate directly,
then the spending power would “become the
instrument for total subversion of the governmental
powers reserved to the individual states.” United
States v. Butler, 297 U.S. 1, 75 (1936). Courts must
16
therefore police the boundaries of state consent with
vigilance to ensure that Spending Clause conditions
do not erode federalism or violate the Constitution’s
separation of powers. The Fourth Circuit’s decision
below cannot stand because it undermines those
structural constraints and invites Congress to extend
its reach far beyond constitutional bounds.
A. The Clear Statement Rule Safeguards
State Sovereignty
The Fourth Circuit’s holding that West
Virginia’s Save Women’s Sports Act (“the Act”)
violates Title IX is irreconcilable with this Court’s
Spending Clause precedent because it circumvents
the clear statement rule. That rule exists to ensure
that Spending Clause legislation “does not undermine
the status of the States as independent sovereigns in
our federal system.” NFIB, 567 U.S. at 577 . A clear
statement that is “plain to anyone reading the
[statute]” is especially critical where, as here,
Congress is claimed to have imposed a condition that
strikes at the core of state sovereignty, such as the
regulation of public education.
See Gregory v.
Ashcroft, 501 U.S. 452, 467 (1991).
Congress’s intent must be “clear and manifest”
when a statute encroaches upon the “historic police
powers of the States.” Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947); see also Bond v. United
States, 572 U.S. 844, 860 (2014) (requiring a “clear
indication” from Congress before interpreting
17
“expansive language in a way that intrudes on the
police power of the States.”). This “provides assurance
that ‘the federal-state balance’ will not be disturbed
unintentionally by Congress or unnecessarily by the
courts.” Jones v. Rath Packing Co., 430 U.S. 519, 525
(1977) (citation omitted). Conversely, Congress’s
imposition of “post-acceptance or ‘retroactive’
conditions,” see Pennhurst, 451 U.S. at 25, or burdens
“of unspecified proportion and weight, to be revealed
only through case-by-case adjudication,” Bd. of Educ.
of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458
U.S. 176, 190 n.11 (1982), significantly intrudes upon
State sovereignty. Thus, for legislation enacted
pursuant to Congress’s spending power, the clear
statement rule is not merely a canon of statutory
construction or an interpretive aid, but a
constitutional requirement.
By reaffirming its decision in Grimm and
declaring that “discrimination based on gender
identity is discrimination ‘on the basis of sex’ under
Title IX,” the Fourth Circuit muddied the meaning of
a statute that had long been clear. B.P.J., 98 F.4th at
563 (citing Grimm v. Gloucester Cnty. Sch. Bd., 972
F.3d 586, 616 (4th Cir. 2020)). Any construction of
“sex” that extends beyond its plain, biological
meaning—as all funding recipients would have
understood it—necessarily implies that Congress
failed to “speak with a clear voice” when it enacted
Title IX. See Davis, 526 U.S. at 640 (citation omitted).
Yet the Fourth Circuit disregarded both the clear
18
statement rule and the fact that Title IX was enacted
under the Spending Clause. The lower court’s flawed
interpretation of Title IX not only violates this Court’s
precedent, but it also threatens to seriously intrude
upon West Virginia’s sovereign authority to regulate
education and protect the public good. See Bond, 572
U.S. at 854.
The Act begins from a commonsense premise:
“inherent differences between biological males and
biological females … are cause for celebration.” W. Va.
Code § 18-2-2-25d. Recognizing that those differences
matter in competitive skill or contact sports, the Act
acknowledges that “biological males would displace
females to a substantial extent if permitted to compete
on teams designated for biological females.” Id.
Consistent with that acknowledgement, the Act
prohibits biological males from competing on women’s
or girls’ teams, but it does not prohibit biological
females from competing on men’s or boys’ teams. Id.
The Act does not exclude either sex from sports
altogether, nor does it treat transgender athletes
differently from other athletes. Id.; see also B.P.J., 98
F.4th at 569 (Agee, J., concurring in part).
Far from conflicting with Title IX, the Act
mirrors the statute’s core purpose: “promoting equal
athletic opportunities for the female sex.” W. Va. Code
§ 18-2-2-25d. West Virginia reasonably determined
that allowing biological males to compete in women’s
sports would diminish those opportunities and, in
19
many contexts, create serious safety risks for female
athletes. See B.P.J. v. W. Va. State Bd. of Educ., 649
F. Supp. 3d 220, 230 (S.D. W. Va. 2023); B.P.J., 98
F.4th at 569 n.3.
These concerns are neither
speculative nor unique to West Virginia. At least 27
other states have adopted or proposed similar
measures mandating that student athletes compete
on teams aligned with their biological sex.3
3 See Zoe Christen-Jones, The Bans on Transgender Athletes – 6
(June
7,
2021),
Facts,
CBS
News
https://www.cbsnews.com/news/transgender-athlete-bans-facts/.
West Virginia’s concerns are not misguided. Take, for example,
the transgender-identifying biological males that won high
school girls’ state track championships in five states last year.
See Valerie Richardson, Girls Left in Dust as Male-Born
Transgender Athletes Take State Track Titles in Five States,
Wash.
Times
(June
16,
2024),
https://www.washingtontimes.com/news/2024/jun/16/transgende
r-athletes-leave-girls-dust-winning-trac/.
Or consider the
serious injury a female high school field hockey player sustained
from a shot by a male player during a game in Massachusetts.
See Massachusetts School Calls for Change After Female Field
Hockey Player Hurt by Boy’s Shot, CBS News (Nov. 6, 2023),
https://www.cbsnews.com/boston/news/massachusetts-fieldhockey-male-female-injury-swampscott-dighton-rehoboth/.
While these are only two examples, in the past five years, there
have been numerous instances of biological male athletes
displacing female athletes in women’s sports. See e.g., Ray
Lewis, Transgender Runner Breaks Two Women’s Records for
New York College, Sparking Debate, ABC 3340 News (Jan 30,
2024),
https://abc3340.com/news/nation-world/transgenderrunner-breaks-two-womens-records-for-new-york-collegesparking-debate-rochester-institute-of-technology-track-and-
20
The Act is a reasonable exercise of the State’s
police powers, enacted to protect female athletes in
the State’s grade schools, secondary schools, and
universities. This Court has long recognized that
education sits at “the very apex of the function of a
State.” Wisconsin v. Yoder, 406 U.S. 205, 213 (1972).
If Congress truly intended to displace that core
authority and require that women’s interscholastic
sports teams accommodate biological males, it was
obligated to say so clearly and unambiguously. Dole,
483 U.S. at 207; Pennhurst, 451 U.S. at 17. It did not,
and it has not. 20 U.S.C. § 1681(a). Nor may Congress
“surpris[e] … States with post-acceptance” conditions
by attaching to long-established federal funding
streams a novel and unforeseeable redefinition of
“sex.” NFIB, 567 U.S. at 584.
Congress plainly did not extend Title IX’s
protections to discrimination on the basis of gender
identity when it enacted Title IX in 1972, and the
field-sprint-athlete-sports-ncaa-lgbt; Ryan Gaydos, Trans
Athlete Fires Message Toward Critics After Dominating Girls’
400 for State Title, Fox News (June 2, 2025),
https://www.foxnews.com/sports/trans-athlete-fires-messagetoward-critics-after-dominating-girls-400-state-title; Madeline
Coggins, Trans Athlete Sparks Outrage After Toppling Women’s
Powerlifting World Record: ‘Completely Unfair,’ Fox Business
(Aug 20, 2023), https://www.foxbusiness.com/politics/transathlete-sparks-outrage-toppling-womens-powerlifting-worldrecord-completely-unfair.
21
statute offered the States nothing approaching the
clear notice required before conditions may be
imposed under the Spending Clause. The Fourth
Circuit’s contrary interpretation disregards the clear
statement rule and conflicts with this Court’s
Spending Clause jurisprudence. It should therefore
be rejected.
B. The Clear Statement Rule Serves as a
Vital
Limitation
on
Congress’s
Spending Power
“[T]he Constitution divides authority between
federal and state governments for the protection of
individuals.” New York v. United States, 505 U.S. 144,
181 (1992). It does so by “confer[ring] on Congress not
plenary legislative power but only certain enumerated
powers,” where “all other legislative power is reserved
for the States,” under the Tenth Amendment. Murphy
v. NCAA, 584 U.S. 453, 471 (2018). Historically,
regulation was “a matter of public congressional
enactment” and Congress was “reluctan[t] … to use
conditions as a means of national domestic
regulation.”
Philip Hamburger, Purchasing
Submission: Conditions, Power, and Freedom 91 n.*
(2021).
As this Court’s precedent instructs, however,
Congress can incentivize desired behavior short of
commanding it by attaching conditions to its grant of
federal funds, based on purported state consent.
Cummings, 596 U.S. at 219; Dole, 483 U.S. at 206-07;
22
Pennhurst, 451 U.S. at 17. In other words, through
spending, Congress can regulate indirectly where it
could not otherwise regulate directly.
See
Hamburger, supra, at 148.
In Federalist 41, James Madison emphasized
that the Spending Clause’s reference to the “general
welfare” was cabined by Congress’s specifically
enumerated powers and thus was not “a power to
legislate in all cases whatsoever.” See The Federalist
No. 41, at 278 (James Madison) (Jacob E. Cooke ed.,
1961). Likewise, in Federalist 45, Madison assured
that “the States will retain under the proposed
Constitution a very extensive portion of active
sovereignty,” while federal powers would be “few and
defined,” directed primarily toward external concerns,
such as war, peace, diplomacy, foreign commerce, and
federal taxation. The Federalist No. 45 (James
Madison). James Wilson made a similar point in his
State House Speech of 1787, emphasizing that the
Constitution’s federalist structure ensured that, for
state governments, “everything which is not reserved
is given.” James Wilson, State House Speech, October
6, 1787, in Pennsylvania and the Federal Constitution
1787-1788 142, 143 (John Bach McMaster &
Frederick D. Stone, eds., 1888). Education appears
nowhere among Congress’s enumerated powers, so it
remains by constitutional design a matter reserved to
the States.
Cf. Neal McCluskey, Schoolhouse
23
Burning: Public Education and the Assault on
American Democracy, Cato Journal (2021).4
This Court has repeatedly affirmed that the
regulation of education is a core police power of the
States. As the Court explained, “States traditionally
have been accorded the widest latitude in ordering
their internal governmental processes, and school
boards, as creatures of the State, obviously must give
effect to policies announced by the state legislature.”
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457,
476 (1982) (citation omitted); see also Yoder, 406 U.S.
at 213. Congress itself has recognized the same
constitutional boundary. Indeed, in the Department
of Education Organization Act, Congress expressly
declared that “in our Federal system, the primary
public responsibility for education is reserved
respectively to the States and the local school systems
and other instrumentalities of the States.” 20 U.S.C.
§ 3401(4); see also 20 U.S.C. § 3403(a)-(b) (“The
establishment of the Department of Education shall
not increase the authority of the Federal Government
over education or diminish the responsibility for
education which is reserved to the States and the local
https://www.cato.org/cato-journal/fall-2021/schoolhouseburning-public-education-assault-american-democracy (“[D]ig
into the Constitutional convention debates, and they confirm
that the Framers overall neither desired nor included a federal
role in education.”).
4
24
school systems and other instrumentalities of the
States.”).
Simply put, Congress has no power to regulate
education directly.
Setting aside whether the
Constitution actually authorizes Congress to regulate
education indirectly through its spending power—a
proposition that some scholars5 have called into
question—at a minimum, the Constitution requires
some limitations on that power to preserve federalism
and the separation of powers. See Hamburger, supra,
at 148 (The “unconstrained reach of federal conditions
makes them especially dangerous for federalism.”).
If this Court were to accept the Fourth Circuit’s
interpretation of Title IX, the clear statement rule
would effectively lose its force as a structural check on
Congress’s power to legislate via spending
5 Some scholars reject that Congress has any power to spend “for
the general Welfare” as a threshold matter. See Hamburger,
supra, at 86 (“Most basically, there is no general spending
power.”); see also Benjamin Ayanian & Ilan Wurman, The
Constitution Provides Answers to Our Federal Debt Problem,
RealClear
Pol.
(Jan.
24,
2025),
https://www.realclearpolitics.com/articles/2025/01/24/the_
constitution_provides_answers_to_our_federal_debt_problem_1
52236.html (recognizing that “the historical evidence …
overwhelmingly supports the proposition that this clause was
intended only as a grant of the single power to tax for the
national purposes specified in the grant, namely, ‘to pay the
Debts and provide for the common Defence and general
Welfare.’”).
25
conditions—particularly where, as here, Congress
intrudes on the State’s power to regulate public
education. The lower court’s reading of the statute
would preempt the laws of more than 20 States that,
like West Virginia, have enacted measures to preserve
fair competition and protect the interests of girls and
women in interscholastic sports. See Christen-Jones,
supra note.3. Such preemption would upend the
contractual understanding on which Title IX funding
rests: States can be bound only to conditions of which
they had clear notice in advance of when they accepted
federal funding.
See NFIB, 567 U.S. at 578
(recognizing that the danger of Congress acting
without accountability is “heightened when [it] acts
under the Spending Clause, because Congress can use
that power to implement federal policy it could not
impose directly under its enumerated powers.”). That
result would undermine this Court’s clear statement
rule precedent while also destabilizing the federalstate balance at the core of our constitutional order.
Congress must not be afforded even more
leeway to “compromise the structural framework of
dual sovereignty” through its already vast spending
power. Printz v. United States, 521 U.S. 898, 932
(1997); see also Hamburger, supra, at 148 (explaining
that dangers to federalism posed by Congress’s abuse
of its spending power hurt not only the States, but
“[t]he people of the United States” who enjoy “a
constitutional freedom not to be subject to power that
violates the Constitution’s structures.”). This Court
26
must uphold the constitutional boundaries of statebased consent and reaffirm the clear statement rule
as an essential safeguard against federal overreach
under the Spending Clause.
C. The Fourth Circuit’s Nullification of the
Clear Statement Rule Empowers
Unaccountable Executive Agencies to
Rewrite the Law
The Fourth Circuit’s Title IX holding also
carries sweeping implications for the executive
branch’s role in administering spending conditions.
By construing Title IX to prohibit gender-identity
discrimination when the statute expressly bars only
discrimination “on the basis of sex,” 20 U.S.C.
§ 1681(a), the lower court injected ambiguity into the
statute where none existed, in violation of the clear
statement rule. If Congress were permitted to enact
ambiguous Spending Clause legislation (as the Fourth
Circuit’s reasoning suggests), administrative agencies
tasked with enforcement would inevitably seize the
opportunity to fill in the gaps with their own policy
judgments.
Even if the Constitution does, in fact, grant
Congress broad power to impose conditions on
spending, it is Congress—and Congress alone—that
must clearly specify the terms of those conditions, not
administrative agencies. See Dole, 483 U.S. at 206;
Pennhurst, 451 U.S. at 17. If “[t]he requisite clarity
… is provided by [Congress],” as was the case in
27
Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 666 (1985),
an agency may issue regulations to administer those
terms. Absent such clarity, however, an agency
cannot divine Congress’s intent, and any regulations
would require the agency to substitute its own policy
preferences for whatever the Congressional will might
be.
That dynamic would transform ambiguous
statutes into a blank check for agency lawmaking,
amounting to an unconstitutional delegation of Article
I’s Spending Clause power that would arguably even
fail the lenient “intelligible principle” test. See FCC v.
Consumers’ Rsch, 606 U.S. ___, 145 S. Ct. 2482, 249798 (2025); see also Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 473 (2001); Gundy v. United States, 588
U.S. 128, 167-68 (2019) (Gorsuch, J., dissenting).
“The idea that an agency can cure an
unconstitutionally standardless delegation of power”
is “internally contradictory.” Am. Trucking Assocs.,
531 U.S. at 473. That is because “[t]he very choice of
which portion of the power to exercise—that is to say,
the prescription of the standard that Congress had
omitted—would itself be an exercise of the forbidden
legislative authority.” Id. (emphasis omitted). The
same reasoning applies to ambiguous Spending
Clause conditions: any attempt to “cure” such
ambiguity through rulemaking would inherently
require the agency to invent the missing conditions
according to its own policy preferences. But that very
choice is itself an unconstitutional exercise of
legislative power because it is the agency, rather than
28
Congress, determining what conditions bind the
States. See Hamburger, supra, at 92 (explaining that
the danger of regulatory conditions is that agencies
“exercise both executive and legislative power, which
the Constitution separates.”). And, of course, the
Constitution vests the spending power in Congress
alone; the Executive Branch has no power of the
purse.
The clear statement rule has thus been
recognized as a type of “nondelegation canon” because
it prevents “administrative agencies from making
decisions on their own.” Peter J. Smith, Pennhurst,
Chevron, and the Spending Power, 110 Yale L.J. 1187,
1204 (2001) (citing Cass. R. Sunstein, Nondelegation
Canons, 67 U. Chi. L. Rev. 315, 316 (2000)). By
requiring Congress to speak clearly, the rule ensures
that elected legislators, accountable to the people,
decide what conditions accompany federal funds. Id.
at 1203. Conversely, allowing agencies—which are
entirely unaccountable to the people—to “impose
conditions on the states’ receipt of federal funds risks
undermining [structural] protections, and creates the
potential that agencies will impose conditions that
were not within Congress’s contemplation.” Id. Nor
is this concern cured by judicial review. Even though
this Court has recently reaffirmed that “courts must
exercise their independent judgment in deciding
whether an agency has acted within its statutory
authority,” Loper Bright/Relentless, 603 U.S. at 412,
that review often comes too late to prevent agencies
29
from regulating through backdoor, quasi-private
arrangements. See Hamburger, supra, at 91 (“Though
regulation was once a matter of public congressional
enactment, it nowadays is divested to agency
decisions and even private deals.”).
The Fourth Circuit’s decision and its resulting
weakening of the clear statement rule risks further
empowering agencies to unilaterally wield spending
legislation against States. Recent history underscores
the danger. The prior administration’s Department of
Education sought, and failed, to promulgate a rule
that would have redefined “sex” to encompass gender
identity. See Tennessee v. Cardona, 762 F. Supp. 3d
615, 626 (E.D. Ky. 2025) (vacating final rule because
Title IX “does not unambiguously condition the receipt
of funds on the prohibition of gender identity
discrimination.”), appeal docketed sub nom.,
Tennessee v. McMahon, No. 25-5206 (6th Cir. Mar. 12,
2025). Likewise, the prior administration sought to
stretch unambiguous statutory language to condition
States’ Medicaid funding on their covering gendertransition procedures, see Tennessee v. Becerra, 739 F.
Supp. 3d 467, 480-82 (S.D. Miss. 2024), and to
override state laws requiring parental consent for
abortions, see Deanda v. Becerra, 96 F.4th 750, 762
(5th Cir. 2024)—all solely through agency
rulemaking.
30
The divestiture6 of regulatory conditions from
elected lawmakers to unelected bureaucrats is
dangerous not only because it transfers legislative
authority from elected representatives to unelected
bureaucrats, but also because it obscures regulation
from public scrutiny. As Professor Hamburger has
explained, “Regulatory conditions take effect only
with private consent, and so legislative power is
shifted out of Congress not merely to agency decisions,
but ultimately to private bargains.” Hamburger,
supra, at 91. While the Constitution authorizes
regulation through public Acts of Congress, and the
administrative state at least proceeds by publicized
rules, when conditions are used to regulate, regulation
occurs entirely through private transactions. See
Mark Seidenfeld, The Bounds of Congress’s Spending
Power, 61 Ariz. L. Rev. 1, 4 (2019) (“[W]hen the
government spends to achieve an end it must engage
in a voluntary transaction with a willing buyer, just
as any private entity would have to do.”). “Not merely
a matter of constitutional structure—or of
congressional power—this divesting and privatization
of regulation threatens the freedom of Americans to
govern themselves through elective consent.”
Hamburger, supra, at 92. For that reason, limitations
on Congress’s use of spending conditions must be
6 The term “divestiture” is used here because “the Constitution
does not generically delegate its powers,” but commands “that
legislative powers shall be ‘vested’ in Congress.” Hamburger,
supra, at 90.
31
vigilantly enforced to ensure that representative selfgovernment is not displaced by agency regulations
and the private transactions that flow from them. Id.
Recent decisions of this Court underscore that
it has never been more vital to maintain and uphold
the structural protections of federalism and the
separation of powers, which serve as essential checks
on the rise of centralized power in the administrative
state and as safeguards of liberty. See Biden v.
Nebraska, 600 U.S. 477, 505 (2023) (“It would be odd
to think that separation of powers concerns evaporate
simply because the Government is providing
monetary
benefits
rather
than
imposing
obligations.”); SEC v. Jarkesy, 603 U.S. 109, 128
(2024) (recognizing that combining “the roles of
prosecutor, judge, and jury in the hands of the
Executive Branch … is the very opposite of the
separation of powers that the Constitution
demands.”); see also Loper Bright/Relentless, 603 U.S.
at 413 (Thomas, J., concurring) (recognizing that
Chevron deference violates the Constitution’s
separation of powers). This Court should not retreat
from those principles here, but instead it should apply
them with equal force to prevent the Spending Clause
from becoming a vehicle for imposing conditions that
Congress never enacted and that the States never
accepted.
32
CONCLUSION
For the foregoing reasons, amicus curiae
respectfully requests that the Court reverse the
Fourth Circuit, reaffirm that, under the Spending
Clause, Congress—not courts or agencies—must
clearly state the conditions for federal funding, and
hold that Title IX does not impose a gender identity
mandate on the States.
September 19, 2025
Respectfully submitted,
/s/ Casey Norman
Casey Norman
Counsel of Record
Andreia Trifoi
Mark Chenoweth
NEW CIVIL LIBERTIES
ALLIANCE
4250 N. Fairfax Dr., Suite
300
Arlington, VA 22203
Phone: (202) 869-5210
Casey.Norman@ncla.legal
Counsel for Amicus Curiae
New Civil Liberties Alliance
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.