PRESS RELEASE: DFI Argues to the Supreme Court that Title IX Does Not Prohibit Public Schools From Maintaining Separate Bathrooms Based on the Biological Sex of Students

WASHINGTON—The Defense of Freedom Institute for Policy Studies (DFI) filed an amicus brief on Monday supporting the petition filed by an Indiana school district requesting the Supreme Court to resolve whether Title IX requires a national policy prohiiting schools from maintaining separate bathrooms based on students’ biological sex.

In Metropolitan School District of Martinsville v. A.C., a student, a biological girl who identifies as a boy, is suing for access to the boys’ bathroom. Citing the Supreme Court’s ruling in Bostock v. Clayton County, a case involving Title VII that protects employees and applicants from discrimination in the workplace, both the lower court and the U.S. Court of Appeals for the Seventh Circuit ruled that Title IX requires school districts in Indiana to allow students to use the bathrooms and locker rooms that match their gender identity.  

A conflict now exists amongst the circuit courts of appeals on this issue. In Adams v. St. John County, the U.S. Court of Appeals for the Eleventh Circuit ruled that requiring students to use intimate facilities that align with their biological sex does not violate Title IX. Because the Seventh Circuit’s wrongly decided ruling conflicts with the Eleventh Circuit’s decision, DFI is urging the Supreme Court to resolve the circuit split in favor of the Metropolitan School District of Martinsville.  

DFI’s amicus brief states, “This Court should resolve the circuit split by granting the petition for certiorari in this case and declaring that its decision in Bostock does nothing to supersede the plain meaning of ‘sex’ in Title IX as a binary, biological distinction. Bostock contemplated entirely different conduct—hiring and firing adults—in an entirely different setting—the workplace—under a statutory scheme—Title VII—that is entirely distinct from Title IX. 

“This Court should recognize that the text, common public meaning at the time of enactment, and context and history of Title IX establish that the word ‘sex’ for purposes of Title IX refers to a binary distinction between biological males and females. Interpreting Title IX’s many uses of the term ‘sex’ to encompass the concept of ‘gender identity’ would not only contravene the plain meaning of the statute but would also conflict with the very purpose of the law when passed by Congress in 1972[.]”

DFI President and Co-Founder Bob Eitel said, “When Congress passed Title IX to prohibit discrimination on the basis of sex, it did so with the clear understanding that sex is biological and binary. Unlike Title VII, the law at issue in Bostock, Title IX is threaded with binary, biological distinctions, such as its allowance for separate living facilities like bathrooms.”

DFI Senior Litigation Counsel, Donald A. Daugherty, Jr., said, “The Supreme Court should take this case and assure the schools across the country grappling with the issue that separating boys and girls bathrooms based on biology does not violate federal law.”

To read the amicus brief, click here.