EPPC Scholars Comment Supporting 2022 Model Policies (Part 3/3)
Additional Related Laws
We applaud the inclusion of relevant federal and state laws, as well as case law. We suggest the following evidence-based changes and additions to the descriptions of law.
Title VII
The explanation of Title VII states “The U.S. Supreme Court has determined, for purposes of terminating employees, ‘sex’ under Title VII includes gender and sexual orientation.” 2022 Model Policies at 6. This is incorrect. The Court used the language “homosexuality or transgender status” not “gender and sexual orientation” more broadly. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741 (2020). Indeed, the term “gender” does not appear by itself once in the majority opinion. Its only references are to “gender dysphoria” once, “gender identity” once, and “gender roles” three times. Id. at 22, 23. As a recent federal district court explained, “Though human sexuality correlates to myriad attractions, identifications, actions, and relationships, the Court cabined its definitions and descriptions of ‘being homosexual’ and ‘being transgender’ to status.” Texas v. Equal Emp’t Opportunity Comm’n, 2:21-CV-194-Z, 4 (N.D. Tex. Oct. 1, 2022) (quoting Bostock, 140 S. Ct. at 1737-38, 1741-49, 1753-54).
Further, while it is correct that the Bostock opinion did not address other federal antidiscrimination laws, it also did not address issues under Title VII outside the hiring and firing context. As the Bostock Court explained:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” ... Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
140 S. Ct. at 1753. We ask that Bostock’s exclusion of sex-specific bathrooms, locker rooms, and dress codes, even under Title VII, be recognized as limitation of the scope of the decision.
We ask that the summary of Title VII also recognize the nondiscrimination protections for employees on the basis of religion. 42 U.S.C. § 2000e-2. Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief” and requires employers to “reasonably accommodate” employees’ religious observances and practices when such accommodations do not impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). These protections may be relevant when it comes to expectations for interactions with “transgender students” by teachers and other school employees. Many employees are likely religious, and many religions hold sincere beliefs about marriage, gender, and sexuality which may differ from a student’s or parent’s beliefs or purported identity.
Title IX
In the discussion of Title IX regulations, we ask that Virginia also recognize regulations that permit sex-specific athletics (34 CFR § 106.41). Title IX is widely lauded for championing women’s sports, and since its implementation, participation by girls and women in athletics have increased more than tenfold.[1]
Grimm v. Gloucester County School Board
In the summary of the Grimm v. Gloucester County School Board case the 2022 Model Policies state: “the U.S. Court of Appeals for the Fourth Circuit held that transgender students must be allowed to use restroom facilities that correspond to their gender.”[2] We ask that “gender” be changed to “transgender identity” to reflect the mandates of Virginia Code, to acknowledge the internal subjective nature of the designation, and to avoid confusion over the historic use of the term “gender” as a synonym for “sex” (both biological in nature). This is consistent with the Fourth Circuit’s decision. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 619 (4th Cir. 2020) (“Grimm’s four years of high school were shaped by his fight to use the restroom that matched his consistent and persistent gender identity.” (emphasis added)). Note however, that, as stated earlier, Title IX still prohibits schools from allowing a hostile environment where biological boys are allowed to either undress in front of biological girls, or to see biological girls undress. Justice Ruth Bader Ginsburg reminded us that “Physical differences between men and women, however, are enduring” and that women’s admission to an all-male school “would require accommodations, primarily in arranging housing assignments and physical training programs for female[s].”[3]
Meriwether v. Hartop
In the description of the Meriwether v. Hartop case, the 2022 Model Policies mention that the Sixth Circuit held that the state university “violated a professor’s free speech rights when it punished him because he declined to refer to a male student as a woman, with feminine titles and pronouns, after the student requested that he do so.”[4] The court also found that the university violated the teacher’s free exercise rights. Meriwether v. Hartop, 992 F.3d 492, 512 (6th Cir. 2021) (“Meriwether next argues that as a public university, Shawnee State violated the Free Exercise Clause when it disciplined him for not following the university’s pronoun policy. We agree.”). We ask that the 2022 Model Policies reflect this important holding as well.
Sample Policy
Discrimination, Bullying, and Harassment
We applaud Virginia’s sample policies recognizing the importance of prohibiting discrimination, harassment, and bullying for all students.[1]
Identification of Students
Section III.D.6 of the sample policy states: “Notwithstanding the provisions of paragraph (4) of this section, [School Division] shall not compel [School Division] personnel or other students to address or refer to students in any manner that would violate their constitutionally protected rights.”[2] We ask that this paragraph also recognize statutorily protected rights. For example, as discussed above, Title VII provides religious accommodation protections for employees which may provide additional protections against compelled speech. We also ask that this provision clarify that students and staff have a constitutional right to decline to address a person using a pronoun that does not match their biological sex both on Free Speech grounds and, where relevant, Free Exercise grounds. See Cross v. Loudon County case discussed above. Leaving this scenario unspecified would allow recalcitrant school boards to easily trample on the rights of students, faculty, and staff.
Enforcement of Sex-Based Dress Codes
The 2022 Model Policies would allow students to “dress in any manner consistent with maintaining a respectful, distraction-free environment which supports a focus on learning for all students.” It helpfully clarifies “that students are not required to dress in a gender-neutral manner.” It also contemplates school dress or grooming codes that are sex-specific so long as they “provide the same set of rules and standards regardless of gender, as required by the Code of Virginia, § 22.1-279.6.” This section must clarify that sex-specific dress codes are not only allowed but in some cases are required by law. For example, concerning school activities involving water sports or water play, not only may a school impose a dress code requiring the covering of breasts, it must do so to avoid creating a hostile sexual environment.
Student Participation in Sex-Specific School Activities and Events and Use of School Facilities
As recognized in Section III.G.4, single-user bathrooms and facilities are a great option for all students who are not comfortable using a bathroom with others, regardless of the reason—whether they identify as transgender, do not want to share a facility with someone of the other sex, or for medical, personal, or practical reasons. This alternative should be encouraged and promoted in all schools. This is especially important in light of the sexual assault of a Loudon County female student in the women’s bathroom by a male student wearing a skirt.[3] The 2022 Model Policies should clarify that sex education classes may have sections taught to biological boys and girls separately to preserve student privacy. For example, no biological boy, regardless of self-identification has a right to intrude on a class of biological girls discussing their menstruation as part of their education. Overnight travel accommodations, locker rooms, and other intimate spaces, as discussed above, must be based on biological sex, not subjective gender identity or transgender status to avoid creating a hostile sexual environment contrary to law. The 2022 Model Policies should make this explicit.
Athletics
We especially applaud the inclusion of Section III.H, which recognizes the important of ensuring sex specific athletic programs and activities are based on sex.
The reason why there are separate female sports is because of the recognition of the significant physiological and anatomical differences between males and females, and the resulting performance advantage for males—an advantage that has not diminished even though female athletes now receive the same top-level training as male athletes. Biology and sex must continue to be the basis for participation standards in interscholastic athletics. A research review published in 2021 in the journal Sports Medicine states that “the performance gap between males and females becomes significant at puberty and often amounts to 10-50%, depending on the sport.”[4] This performance gap is greatest in sports like track and field that require explosive power—track and field, incidentally, is the among the most popular sports for high school female athletes.[5]
The basis of this performance gap is physiological: males and females are physiologically different. On average, males have a built-in biological advantage. They are bigger, stronger, faster, have more muscle mass, stronger bones, greater lung and cardio capacity, and more fast-twitch muscle fibers (which gives an advantage in explosive power); males, on average, also have more upper-body muscle and lower-body muscle than females.[6] The male body is simply built differently—an advantage conferred by nature. As exercise physiologists have long acknowledged, in direct competitions between male and female athletes, males will win. For females to have the chance to win, especially at higher levels of competition, males and females must compete in separate categories.[7]
This performance advantage cannot be erased even when males suppress their testosterone production: longitudinal studies show that “the loss of lean body mass, muscle area and strength typically amounts to 5% after 12 months of treatment” to suppress testosterone.[8] Moreover, suppressing testosterone does not eliminate enduring male-bodied anatomical advantages. A 15-year-old male who uses medication to suppress his natural testosterone does not lose the performance advantages conferred by nature, rooted in numerous physiological differences.
All males and females deserve a team on which to play. But the costs to females, who are muscled out of positions on “girls” or “women’s” school athletic teams by males who identify as “girls” or “women,” are likely to be substantial.
Conclusion
We applaud Virginia’s concrete action to respect parental rights guaranteed by the U.S. Constitution and laws of Virginia and to ensure privacy, dignity, and respect for all students in Virginia schools. We urge adoption of the 2022 Model Policies and the recommended changes identified above.
Sincerely,
Ryan T. Anderson, Ph.D.
President
Ethics and Public Policy Center
Mary Rice Hasson, J.D.
Kate O’Beirne Senior Fellow and Co-Founder, Person and Identity Project
Ethics and Public Policy Center
Rachel N. Morrison, J.D.
Fellow, HHS Accountability Project
Ethics and Public Policy Center
Roger Severino, J.D.
Senior Fellow, HHS Accountability Project
Ethics and Public Policy Center
[1] 2022 Model Policies app. 1 at 14-15.
[2] 2022 Model Policies app. 1 at 16 (alterations in original).
[3] See Justin Jouvenal & Hannah Natanson, Va. Supreme Court Affirms Probe of Loudoun Sexual Assaults Can Continue, Wash. Post (Sept. 2, 2022, 3:13 p.m.), https://www.washingtonpost.com/dc-md-va/2022/09/02/loudoun-bathroom-assault-grand-jury/. (Loudoun County schools’ policy allowed students to access single-sex bathrooms corresponding to gender identity.)
[4] Emma N. Hilton & Tommy R. Lundberg, Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage, 51 Sports Medicine 199 (2021), https://doi.org/10.1007/s40279-020-01389-3.
[5] Jill Kochanek, & Daniel Gould, The Status of High School Girls’ Sport Participation: A Report Compiled for the State of Michigan Women in Sports Task Force, Institute for the Study of Youth Sports, Michigan State University, East Lansing, Mich. (2020).
[6] Eduardo Saez-Saez de Villarreal et. al. Does Plyometric Training Improve Strength Performance? A Meta-Analysis, 13 J. Sci. Med. Sport 513 (2010), https://pubmed.ncbi.nlm.nih.gov/19897415/; A. E. Miller, Sale DG. Gender Differences in Strength and Muscle Fiber Characteristics. 66 Eur J Appl Physiol Occup Physiol 254 (1993), https://pubmed.ncbi.nlm.nih.gov/8477683/.
[7] “Virtually all elite sports are segregated into male and female competitions. The main justification is to allow women a chance to win, as women have major disadvantages against men who are, on average, taller, stronger, and faster and have greater endurance due to their larger, stronger muscles and bones as well as a higher circulating hemoglobin level. Hence, elite female competition forms a protected category with entry that must be restricted by an objective eligibility criterion related, by necessity, to the relevant sex-specific physical advantages.” David J. Handelsman, et. al. Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance, 39 Endocrine Reviews 803 (2018),https://doi.org/10.1210/er.2018-00020.
[8] Emma N. Hilton & Tommy R. Lundberg, Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage, 51 Sports Medicine 199 (2021), https://doi.org/10.1007/s40279-020-01389-3.
[1] See Charles L. Kennedy, A New Frontier for Women’s Sports (Beyond Title IX), Gender Issues (1-2) 78 (2010), https://link.springer.com/article/10.1007/s12147-010-9091-y.
[2] 2022 Model Policies at 9.
[3] United States v. Virginia, 518 U.S. 515, 540 (1996).
[4] 2022 Model Policies at 9.