PRESS RELEASE: Defense of Freedom Institute Files Supreme Court Amicus Brief Defending Women’s Sports

DFI urges Court to end lower courts’ gender confusion and restore clarity to Title IX

WASHINGTON – The Defense of Freedom Institute for Policy Studies (DFI) filed an amicus brief with the U.S. Supreme Court in West Virginia v. B.P.J. and Little v. Hecox, urging the Court to reverse lower court rulings that struck down state laws protecting female athletic opportunities.

DFI’s brief argues that lower courts wrongly applied the Supreme Court’s 2020 Bostock decision, which dealt with workplace disputes under employment law, to rewrite Title IX. In contrast, Title IX was enacted to prohibit discrimination on the basis of sex in education to ensure equal opportunities for women. Congress made clear in Title IX that some sex-based distinctions are necessary to preserve those opportunities, including athletics.  

The brief also stresses that Title IX was enacted under Congress’s Spending Clause authority, which requires that funding recipients receive clear notice of conditions upfront. At the time of its passage in 1972, Title IX was universally understood to address biological sex, not gender identity. Applying it differently now would violate the requirements of the Spending Clause.

DFI warned that confusion following Bostock has destabilized courts and schools nationwide, and the Supreme Court now has the opportunity to restore clarity. As the brief states: “Bostock’s text-driven analysis centered exclusively on Title VII, and the efforts of the Fourth and Ninth Circuits to impose the holding onto Title IX and the Equal Protection Clause simply try to force a square peg into a round hole.”

“Bostock’s text-driven review of Title VII does not govern Title IX or the Equal Protection Clause, which have substantially different language.  Furthermore, Title IX has been spectacularly successful in opening doors for countless women and girls to excel in academics and athletics,” said Don Daugherty, Senior Counsel at DFI. “Rewriting Title IX to erase biological distinctions undermines the very opportunities Congress intended to protect. We urge the Supreme Court to reject the lower courts’ misapplication of Bostock and to reaffirm that women’s sports must remain a place where biological girls can compete on a level playing field.”

To read the full brief, click here.