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Legally required notice doesn’t appear to be posted on its website

The Supreme Court’s conflation of the social concept of “gender identity” with the biological reality of “sex” is not relevant to Title IX, according to the Department of Education.

It notified Concerned Women for America, the complainant in a case against Franklin Pierce University’s transgender sports policy, that the New Hampshire school chose to resolve the dispute by eliminating the policy.

“Even if Bostock applied to Title IX—a question the Supreme Court expressly declined to address—its reasoning would only confirm that Title IX does not permit a biologically male student to compete against females on a sex-segregated team or in a sex-segregated league,” the Friday letter says, referring to the Supreme Court’s decision on employment policies for transgender workers this year.

The Sept. 18 resolution agreement requires Franklin Pierce to rescind the “Transgender Participation and Inclusion Policy,” which allowed biological males to participate in female sports, and “cease any and all practices related” to it by Oct. 2. The private university is also required to post notice of this rescinded policy in a “prominent location” on its website by the same date.

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The College Fix could not find the notice posted anywhere on the university’s website, much less in a prominent location, two weeks after the deadline in the agreement. It’s not even on the athletics compliance page, which is buried in a menu on the athletics page. A university spokesperson did not immediately return a request to provide the website location of the notice Friday.

The university has until Oct. 30 to show the department’s Office for Civil Rights that it posted the notice, however.

“Where the University operates or sponsors a particular sport for members of one sex, it will not permit participation of the opposite sex except to the extent permitted under” Title IX regulations, the agreement reads.

Also by Oct. 30, the university must document its “planned activities for the 2020-2021 school year” for OCR “and otherwise provide assurances that it is not utilizing the rescinded Policy.” The case won’t be closed until the university satisfies its commitments in the agreement, and OCR warned the university that it may drop by to confirm that Franklin Pierce is complying.

Concerned Women for America filed the complaint after a biologically male athlete at Franklin Pierce started identifying as a woman. He won a national track title in the female division by more than a second after finishing eighth out of nine in the men’s division the year before.

MORE: Franklin Pierce trans athlete trounces women, fails to men

Great news! The Department of Education Office for Civil Rights is protecting women's sports. “the University will rescind its Transgender Participation and Inclusion Policy and will cease any and all practices related thereto.”
Congratulations to @CWforA
https://t.co/UJXZwhqxuR

— Ryan T. Anderson (@RyanTAnd) October 16, 2020

Even Bostock ‘necessarily relies on the premise that there are two sexes’

The Friday letter to CWA elaborates on the distinction between Title VII, the employment nondiscrimination law at issue in the Bostock ruling, and Title IX, one of whose “crucial purposes is protecting women’s and girls’ athletic opportunities.”

It has protected “equal athletic opportunity for students who are biological females” from the start, “including providing for sex-segregated athletics”:

Congress specifically mandated that the Department of Education consider promulgating regulations to address sports. After first enacting Title IX, Congress subsequently passed another statute, entitled the Javits Amendment, which instructed the Secretary of Education to publish regulations “implementing the provisions of Title IX . . . which shall include with respect to intercollegiate activities reasonable provisions considering the nature of the particular sports.”

The regulations specifically allow sex-segregated teams because “men and women are not similarly situated because of their physiological differences.” The only way females can get equal athletic opportunity is through their own teams, the letter says.

Unlike the Bostock ruling, which concluded sex is “not relevant to employment decisions,” sex is relevant to school sports, the letter continues. It notes that Congress specifically exempted “separate living facilities for the different sexes” from the statute.

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And while the Bostock ruling concerned gender identity, its legal reasoning is based on “biological sex at birth”:

The logic that an employer must treat males and females as similarly situated comparators for Title VII purposes necessarily relies on the premise that there are two sexes, and that the biological sex of the individual employee is necessary to determine whether discrimination because of sex occurred. Where separating students based on sex is permissible—for example, with respect to sex-specific sports teams—such separation must be based on biological sex.

Because the high court found that “homosexuality and transgender status are inextricably bound up with sex,” to grant “special exemptions” in team sports based on either status would also constitute “unlawful sex discrimination,” the department says. That’s because neither involves “physiological differences relevant to the separation of sports teams based on sex.”

In a press release, CWA President Penny Nance said the resolution agreement was “the first victory for college female athletes being forced to compete on an unfair playing field against males claiming transgender status and competing in women’s sports.”

She called the agreement “a warning shot to the NCAA,” whose transgender policy is similar to Franklin Pierce’s, “and every college and university in America to back off policies that discriminate against female student-athletes and restore fairness and equity in women’s sports.”

Read the letter to CWA and the resolution agreement.

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IMAGE: Ben Parker Photography/Shutterstock

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