USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 54 of 150
change in the quality of women’s athletic competition was not a sudden, anomalous upsurge in women’s interest in sports, but the enforcement of Title IX’s mandate of gender equity in sports.” Cohen, 101 F.3d at 188 (citing Robert Kuttner, Vicious Circle of Exclusion, Wash. Post, Sept. 4, 1996, at A15). In short, “[t]here can be no doubt that Title IX has changed the face of women’s sports as well as our society’s interest in and attitude toward women athletes and women’s sports.” Id.
But had the majority opinion adopted Adams’s argument that “sex,” as used in Title IX, includes the concept of “gender identity” or “transgender status,” then it would have become the law of this Circuit for all aspects of the statute. Under such a precedent, a transgender athlete, who is born a biological male, could demand the ability to try out for and compete on a sports team comprised of biological females. Such a commingling of the biological sexes in the female athletics arena would significantly undermine the benefits afforded to female student athletes under Title IX’s allowance for sex-separated sports teams.
This is because it is neither myth nor outdated stereotype that there are inherent differences between those born male and those born female and that those born male, including transgender women and girls, have physiological advantages in many sports. Doriane Lambelet Coleman, et al., Re-affirming the Value of the Sports Exception to Title IX’s General Non-Discrimination Rule, 27 Duke J. Gender L. & Pol’y 69, 87–88 (2020). While pre-puberty physical differences that affect athletic performance are “not
