We would like to give special thanks Zack Flagel, a Foley Summer Associate in our Milwaukee office, for his contributions to this article.
On June 15, 2020, the U.S. Supreme Court issued a watershed decision in Bostock v. Clayton County, holding, for the first time, that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination in the workplace based on sexual orientation or gender identity. The opinion, penned by Justice Gorsuch, was widely lauded for its expansion of workplace and hiring protections for vulnerable members of the LGBTQ community. Justice Alito’s dissent, however, raised some interesting questions about the decision’s application—specifically as it pertains to the world of sports, including how it might impact “female only” employers such as women’s professional sports, and whether the Bostock definition of “sex” could, or should, be applied to Title IX of the Civil Rights Act (“Title IX”), which would extend the protection beyond the employment context and into youth and college athletics. These questions could further complicate an already complex situation, where professional, youth and college sports struggle to balance competitive play with tolerance and inclusion.
Title VII Generally
Title VII of the Civil Rights Act (“Title VII”) generally prohibits employment discrimination based on, among other things, race, color, religion, sex, and national origin. These traits are known as “protected characteristics,” and the groups of people sharing such characteristics are known as “protected classes.” Before Bostock, the question of whether sexual orientation or gender identity qualified as a “protected characteristic” under Title VII had been in dispute, but never clarified by either Congressional act or Supreme Court decision.
Employment policies or practices can be unlawfully discriminatory (i.e., violate Title VII) if they either constitute “disparate treatment” of an employee based on a protected characteristic or have a “disparate impact” on employees in a protected category. Disparate treatment generally covers intentional discriminatory conduct directed at an individual. Disparate impact, however, is generally referred to as “unintentional discrimination”, and occurs where a policy—although seemingly fair-minded and neutral on its face—nevertheless results in a disproportionately discriminatory impact on a protected group. Any policy or practice with such disparate impact is violative of Title VII if it is not job-related and consistent with business necessity and there is no less discriminatory alternative available to the employer. A classic example of a disparate impact policy would be a strength test that has the effect of screening out female workers applying for a job.
Not all protected-class discrimination is illegal under Title VII, however. The law provides that disparate treatment may be permissible if based on a bona fide occupational qualification (BFOQ). A BFOQ may exist where (1) a particular non-racial protected characteristic is an actual qualification for performing a certain job; and (2) that requirement is necessary to the normal operation of the employer’s business. BFOQ exceptions are interpreted extremely narrowly, but are often recognized where practical questions of privacy and safety necessitate certain gender requirements; such as excluding male prison guards at female prisons, for example. Women’s professional sports leagues can rely on BFOQ exceptions where male competitors would arguably disrupt the operation of businesses such as the Women’s National Basketball Association (WNBA) or National Women’s Hockey League (NWHL)—both of which require that their athletes be female by league policy.
Policies that result in disparate impact against protected classes are also permissible under Title VII, but only where an employer demonstrates that ¬¬the otherwise discriminatory practice is justified by a business necessity that is manifestly related to job duties—colloquially known as the “business necessity exception.”
The business necessity exception has a high evidentiary bar, and can only be applied where an employer’s standards serve a legitimate purpose closely related to the applicable job function and where a less discriminatory alternative cannot be imagined. In Lanning v. Southeastern Pennsylvania Transportation Authority (2002), the U.S. Court of Appeals for the Third Circuit struck down a physical fitness test for prospective police officers over the defendant police department’s business necessity defense. The court rejected the defense because although the fitness test did measure a legitimate occupational need (namely the ability to chase and arrest criminals) it did not articulate the minimum qualifications necessary for performance of the occupation. This necessarily meant that lower and less discriminatory standards could exist that would limit the existing disparate impact on hiring female officers who disproportionally could not pass the test.
Lanning highlights the difficulty in mounting an affirmative business necessity defense against disparate impact discrimination—especially where physical occupational tests are involved. In the wake of Bostock, women’s professional sports leagues that impose physical tests or policies that disparately impact transgender athletes might be faced with these same challenges, as such leagues could be required to establish not only the business relevance of their employment requirements, but that no less discriminatory policies could take their place.
The Bostock Decision
Bostock v. Clayton County consolidated three lower court Title VII appeals—two of which involved the firing of employees for being gay, and another involving the termination of a male employee who had told his employer that he planned to transition genders. In a surprising 6-3 ruling, the Supreme Court found that homosexual and transgender individuals were, in fact, afforded “protected class” status under Title VII, and that the employer conduct in question was therefore unlawfully discriminatory.
In his opinion for the majority, Justice Gorsuch argued that discrimination “on the basis of sex” is inextricably tied to both gender and sexuality, and that Title VII must therefore be read to prohibit all such discrimination. Justice Alito’s lengthy dissent branded Gorsuch’s opinion an act of judicial legislation that “falsely sails under a textualist flag,” before going on to examine the practical implications of such a broad expansion of Title VII, especially in women’s sports.
Alito’s dissent also wondered aloud how the decision would impact Title IX of the Civil Rights Act, which, although distinct from Title VII in the context of the Bostock ruling, is part of the same federal statute, and applies the same wording concerning gender discrimination to educational and athletic programs receiving federal aid as Title VII does to employment:
“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 program or activity receiving federal financial assistance.” 20 U.S. Code § 1681
In support, Alito referenced various lower-court cases concerning laws and policies disallowing transgender women to compete against cisgender women in athletic competitions. Although Justice Alito’s dissent plainly indulged in more than a bit of “slippery slope-ism,” it does raise an interesting question—just how will Bostock impact hiring practices and Title IX competition policies for transgender athletes?
Gender Policies and Title VII
Expansion of women’s professional sports leagues in the United States has been one of the great triumphs of the sports industry over the last thirty years. Leagues like the WNBA have afforded female athletes the chance to pursue the sports they love and get paid to do it. These leagues are defined, in part, as leagues for women, as league policies often explicitly exclude men from employment as players. These exclusions appear consistent with the purpose of common-sense BFOQ exceptions, as inclusion of male athletes would obviate very point of the league’s business—namely, female athletic competition.
Although no major women’s leagues exclude transgender athletes, some do limit the permissible testosterone levels of its competitors. These policies are designed to maintain an even-playing field between competitors—mirroring International Olympic Committee (IOC) guidelines that do the same. The NWHL, for example, has a policy that allows an athlete who is transitioning from male to female to participate only if “her total testosterone level in serum is within typical limits of women athletes,” with such compliance and conditions monitored by league testing.
In a post-Bostock world, however, such limitations—however well-meaning—could conceivably qualify as disparate treatment of transgendered applicants. Alternatively, neutral and uniform testing of all players in the league could have a disparate impact on transgender individuals. Many transgender athletes, for example, might naturally be above threshold testosterone levels, and thus be ineligible for employment. In such cases, leagues would likely seek to show a compelling BFOQ (or job-relatedness and a business need) for their testosterone testing policies, just as they do for excluding male participation. Although such a defense could be successfully mounted, courts notoriously apply BFOQ and disparate impact exceptions narrowly. In addition, relying on the exception could put leagues in the thorny position of appearing to defend exclusionary – and perhaps unlawful – restrictions against transgender individuals. Keep in mind, however, that these leagues have successfully sustained their policies and practices notwithstanding already existing state laws that prohibit the type of employment discrimination that, per Bostock, federal law now also prohibits. Still, a decision like Bostock, could have practical – if not legal – ramifications for women’s professional sports leagues, which generally take great pride in being socially progressive and forward-thinking. Thus, even if their exclusionary practices do not violate Title VII or similar state laws, these leagues could face increasing social and cultural pressure to permit the participation of transgender females, regardless of testosterone levels or other physiological traits generally considered relevant to fair play.
Gender Policies and Title IX
Another question raised in Justice Alito’s dissent is the extent to which the Bostock decision applies to Title IX, which broadly outlaws discrimination in athletic and educational programming, like Olympic, college and high school sports.
The majority in Bostock made it clear that they were defining “sex” only under Title VII—i.e. employment matters. Even so, Justice Alito’s dissent presents a legitimate question. If the phrasing “on the basis of sex” is meant to apply to both gender identity and sexual orientation in Title VII of the Civil Rights Act, what principle could limit or preclude the same analysis and application under Title IX of the very same act? If no such limiting principle exists, what might application of Bostock under Title IX look like?
Legal battles over the inclusion of transgender athletes have occurred in high school and college athletics—both of which generally receive federal financial assistance, and thereby operate under Title IX. Two current federal district court cases highlight the issues at play. In, Hecox v. Little, two transgender women have sued the State of Idaho over its Fairness in Women’s Sports Act, which prohibits transgender women from competing on women’s sports teams at public schools. The plaintiffs seek to apply Title IX antidiscrimination protections to strike down the state law. In Soule v. Connecticut, certain cisgender female high school athletes in Connecticut are suing their local interschool athletic conference for its permissive gender policy, which they say has allowed certain transgender athletes unfairly to dominate track and field events meant for cisgender female competitors.
If Justice Alito is right, plaintiffs may argue that Bostock should extend to Title IX cases, which could have an immediate impact on both of these ongoing cases. If that argument were to prevail, Idaho’s law that bars transgender athletes from participating in female competitions would likely violate Title IX. Similarly, Title IX claims by aggrieved cisgender female athletes, such as those in Soule, would suddenly be at odds with competing anti-discrimination principles protecting transgender athletes under Bostock.
Should Bostock apply to Title IX, policies that bar transgender participation in cisgendered athletics would have difficulty surviving scrutiny. For example, the NCAA’s current Policy on Transgender Student-Athlete Participation bars female transgender student athletes from participating on women’s teams unless they have completed one calendar year of testosterone suppression treatment. This policy might be susceptible to challenge under an extension of Bostock, and stakeholders should consider and prepare for the potential need to make changes.
There is little doubt that the Bostock decision heralds a new day for LGBTQ protections in the workplace. These hard-won advancements are long overdue, whether granted through legislation or confirmed by judicial determinations. Applying these principles of non-discrimination to women’s sports, however, might prove a practical challenge for all those involved, as good faith stakeholders will seek to balance competing interests in equal opportunity for multiple protected groups. Only time—and perhaps significant litigation—will tell how these interests are ultimately balanced.