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Title IX's Post-Skrmetti Peril & Promise
Suski, Emily
Suski, Emily
Abstract
This term in West Virginia v. B.P.J., the Supreme Court will resolve a circuit split regarding the meaning of sex and sex discrimination under Title IX. The Court will decide whether sex and therefore sex discrimination is defined under the statute in biologically limited terms that exclude gender identity. This question has taken on added weight following the Court’s decision in United States v. Skrmetti. In Skrmetti, the Court evinced a narrow conceptualization of sex and sex discrimination under the Equal Protection Clause that cabins its reach. Because Title IX’s purpose is to provide protections against sex discrimination where the Equal Protection Clause does not, Title IX has powerful potential to conceive of sex and therefore sex discrimination more broadly.
Yet, Skrmetti poses threats for Title IX’s ability to provide those broader protections. Because the Supreme Court has said that Title IX’s protections overlap in ways with the protections available under the Equal Protection Clause but has not said how, the Court could resolve Title IX’s circuit split by importing the conceptualization of sex and sex discrimination evident in Skrmetti into Title IX. Such a doctrinal turn would undermine Title IX’s purpose and its capacity to provide protections broader than those available under the Equal Protection Clause.
Still, arguments exist based on Title IX’s history, goals, and construction that the Court should not import the view evident in Skrmetti about the meaning of sex and sex discrimination into Title IX. This Essay develops those arguments and, drawing on anti-stereotyping theory, proposes a definition of sex as gender identity that abandons biology as the determiner of sex and would preserve Title IX’s power to protect against sex discrimination that the Equal Protection Clause cannot reach.