PDE Files 9th Circuit Court of Appeals Amicus Brief in Doe v. Horne


Congress passed Title IX to ensure that female students in the United States could access the same benefits and opportunities enjoyed by male students. As one might expect, Title IX recognizes two categories of students: males and females. Consistent with its purpose, the law repeatedly speaks about benefits provided by “one sex” versus “the other sex,” and sometimes references “both sexes.” Title IX, by its very nature, is comparative: it requires school administrators—and the courts overseeing them—to compare the opportunities afforded to one group with the opportunities afforded to another.

It is impossible to compare two things, however, if neither has a verifiable definition. The issue before the Court in this case is straightforward: what did Congress mean when it required equal treatment for members of each “sex”? Appellees try to sidestep this question by invoking the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and a loose collection of inapposite circuit opinions like Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020). See, Dkt. 3 at 9, 13; Dkt. 65 at 11 & n.9, 12, 15. But Bostock interpreted a different statute—with a different structure and different purpose—and the Court specifically disavowed that its reasoning was controlling for Title IX purposes. And while Grimm applied Bostock to a discrete issue in the Title IX context, the Fourth Circuit’s reasons for doing so are inapplicable to this case.

The plain text, structure, history, and purpose of Title IX all point to one conclusion: that “sex” refers to biological and inalterable differences between males and females, and the law protects athletic competitions that are separated on that basis. As the Eleventh Circuit recently observed, “[t]here simply is no alternative definition of ‘sex’ for transgender persons as compared to nontransgender persons under Title IX.” Adams by & through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 813-14 (11th Cir. 2022) (en banc). Because Arizona’s policy provides equal opportunities for both sexes, it is permissible under—and, in fact, required by—Title IX. The district court’s decision should be reversed.