The case of Tennessee v. US Dept. of Education will re-examine sex discrimination and gender identity in school sports

KNOXVILLE, Tenn., Feb. 1 — Women’s Liberation Front (WoLF) filed an amicus brief on Tuesday in the case of The State of Tennessee v. United States Department of Education.

The brief argues that forcing female student-athletes to compete against males and share locker sex-specific accommodations such as showers and locker rooms violates Title IX, which prevents discrimination in education on the basis of sex.

Twenty state attorneys general, spearheaded by Tennessee, are suing the US Dept. of Education over guidance that requires schools to allow males who identify as female to participate in sports and other sex-specific activities based on their “gender identity.” Multiple female athletes have also joined the case to protect women’s sports.

The Ed Dept. guidance was issued in response to President Biden’s 2021 executive order to interpret “sex” in civil rights law as including “gender identity.” WoLF has previously submitted multiple petitions and public comments to the Ed Dept. outlining the ways in which this guidance is directly harmful to women and girls and urging the Department to protect female athletes.

WoLF’s amicus brief supports the states’ argument that the Ed Dept. violated procedural rules in issuing their guidance and that the Department’s interpretation of “sex” in Title IX blatantly disregards the text of the law. WoLF also specifically points out that the Department continues to fail to provide a clear or coherent definition of the term “gender identity,” which essentially confers special privileges to a subset of people based on their own beliefs (or claim of such). 

WoLF’s brief states:

“Women’s hard-earned rights are threatened by the agency policies currently being enjoined; policies that embrace the vague concept of “gender identity” in a manner that overrides statutory and Constitutional protections that are based explicitly on “sex.” In doing so, each Defendant not only ignores its obligation but also cedes its own ability to protect women and girls from sex-based discrimination, threatening their physical safety by proclaiming that women are not permitted to exclude males from any space or activity, thus undercutting their access to public life.”

Unlike the inclusion of “sexual orientation” in civil anti-discrimination guidance, gender identity is not based on any material or biological difference in sex. Rather, as Jennifer Chavez stated in WoLF’s public comments, “the concept of gender identity purports to supersede and obfuscate the ordinary public meaning of ‘sex.’”

The brief points out the multiple ways in which women and girls are harmed by the “gender identity” policies, including instances of violence, censorship, and lost educational and athletic opportunities.

“Schools and universities and other public institutions have abandoned fact and reason in favor of a fashionable but completely irrational and harmful ideology. In doing so, they have elevated the subjective beliefs and interest of a very few over the competing interests and free speech rights of all others, particularly the rights of vulnerable women and girls.”

Case Background: Bostock v. Clayton County

The pretext for the Department’s policies is the 2020 Bostock v. Clayton County ruling, which found that the federal government should interpret Title VII of the Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity.  

Despite the fact that judges in Bostock clearly stated the case was being narrowly decided and did not apply beyond Title VII, federal agencies under Biden have already expanded their implementation well beyond the scope of the decision. According to WoLF’s amicus brief, the Biden Administration’s implementation of Bostock is “wholly unreasonable” and relies on interpretations of the case that are being rejected across the Federal Judiciary. For example, in 2022, three eighth-grade students were charged with sexual harassment under Title IX for “mispronouning.”

This is a disturbing distortion of Title IX, which has historically been used to protect women and girls from discrimination, including harassment, in education but is now having the opposite effect under such misinterpretations of Bostock. As WoLF’s brief states, “the theory of male entitlement to female spaces and resources pre-dates Bostock by several years.”

About Tennessee v. US Dept of Ed

On June 2021, the EEOC Chair issued a guidance document on sex discrimination after Bostock. According to the initial complaint in this case, the guidance declared “that requiring transgender employees to use the shower, locker room, or restroom that corresponds to their biological sex, or to adhere to the dress code that corresponds to their biological sex, constitutes discrimination under Title VII (which the EEOC administers and enforces in part), notwithstanding that the Supreme Court expressly declined to “prejudge” those issues.” 

Twenty states (Tennessee, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia) sued the EEOC and Dept. of Ed., and Dept. of Justice in response to prevent this guidance from implementation, as it would directly conflict with many states’ ‘Save Women’s Sports’ type laws already in effect.

Last summer, the states won a preliminary injunction that protects states from new guidance handed down from the Department of Education and EEOC. The federal government has since filed an appeal of the preliminary injunction.

In October, a federal district court vacated the document in response to a separate challenge from Texas. 

Intervenors joining the case against the Dept. of Ed include three Arkansas female student-athletes represented by ADF: Anna Scarborough, Cate Ford, and Amelia Ford. 

Read our brief here.

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