Title IX isn’t about discrimination based on gender. Title IX protects individuals from discrimination based on sex in education programs or activities that receive federal financial assistance. Title IX states simply that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Emerging definitions in medicine and psychology seem to suggest that sex and gender are not the same. For instance, according to the Planned Parenthood website, sex and gender are different things, whereby one is biological and the other is social. Sex is biological, whereas gender is “a social and legal status, and set of expectations from society, about behaviors, characteristics, and thoughts.” Planned Parenthood goes further and defines gender identity as “how you feel inside and how you express your gender through clothing, behavior, and personal appearance.”
Due to the complex interchange between terms like sex, gender, and gender identity, laws like Title IX seem antiquated and do not sufficiently address these new social constructions. An intentionalist reading of the statute would not permit the notion that sex has a broad meaning such that it encompasses concepts like gender or gender identity because these are exclusively defined terms in contemporary language. Additionally, Title IX clearly states “on the basis of sex,” so a textualist reading of the statute would ignore claims of discrimination based on gender or gender identity as these are, now, distinct terms.
Consequently, it seems a person that identifies as trans finds themself in a conundrum with respect to Title IX. For instance, to suggest that one is a female (on the basis of sex) after their transition (which is on the basis of gender) would violate the emerging definitions from the scientific literature that sex and gender are different if it is argued to be one and the same. But what must be argued for Title IX to be relevant in regard to transgenderism is that sex and gender are one and the same. However, this is just not scientifically the case. Sex denotes one’s biology, anatomy, and chromosomally, whereas gender is a social construction.
It seems social advocates of transgenderism want to save the dollar and spend it too. Unfortunately, science and the law are not so contradictory. To say gender is the same as sex flies in the face of emerging medical and psychological literature, and to not say gender equates to sex means Title IX is irrelevant insofar as gender is the only consideration.
In the case of H.B. 358 advocated for by the North Carolina General Assembly, the bill is largely centered on the biological differences of men and women. The bill highlights “inherent differences” which creates a significant competitive disadvantage for the average female athlete when competing against her male counterpart. Moreover, the bill is not a ban on transgender athletes from playing the sports they love as some critics of the bill have suggested and will suggest. The bill does not restrict transgender athletes from playing on teams that align with their biological sex. Furthermore, transgender athletes are not being asked to choose between their gender identity and playing the sport of their choice because gender identity and sex are two different things according to the growing scientific literature on the matter. Hence, the notion that transgender athletes are being harmed by the legislation in terms of access is unfounded.
Interestingly, counter legislation has been introduced by members of the General Assembly in the form of H.B. 450. The bill seeks to protect individuals from discrimination in “all walks of life.” While this is a noble cause, the bill comes across as a political repudiation of H.B. 358 rather than authentic legislation against discrimination. For instance, the bill makes a concerted effort to replace the term ‘gender’ with ‘gender identity,’ except for in the case of the following passage, “public accommodation to provide separate bathrooms or changing facilities based on gender.” I believe this demonstrates that advocates of transgenderism are starting to feel the pressure to conform to using concise language when it comes to terms like ‘gender’ and ‘sex’. It is interesting to see that the preferred term in H.B. 450 is gender identity which is more of a fluid form of gender expression predicated on appearance rather than objectivity. I have concerns about introducing this kind of language into law due to it being predicated on how someone feels as oppose to something more objective in observation (like age, skin color, and sex which is more or less apparent).
If there is not a broad consensus on what is meant by ‘gender’, ‘sex’, and ‘gender identity’ from a legal perspective, then Congress should move to clarify the language of Title IX or change the statute to be more definitive. Otherwise, bills like the one being advocated for by the North Carolina General Assembly and across the nation to keep sporting programs separated by sex will likely come down to a battle of words between states and bureaucrats in the Department of Education.
Joshua Peters is a philosopher and social critic from Raleigh, NC. His academic background is in western philosophy, STEM, and financial analysis. Joshua studied at North Carolina State University (BS) and UNC Charlotte (MS). He is a graduate of the E.A. Morris Fellowship for Emerging Leaders.