quo vadis
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RE: NCAA Tournament Games In Boise In Jeopardy Over Transgender Law
(06-15-2020 12:11 PM)Frank the Tank Wrote: (06-15-2020 11:20 AM)quo vadis Wrote: (06-15-2020 10:44 AM)Frank the Tank Wrote: (06-12-2020 11:38 AM)quo vadis Wrote: (06-12-2020 11:23 AM)Frank the Tank Wrote: Of course the NCAA has the right to come in and influence state law. This is an organization that is made up of a significant number of public institutions, many of which have enforceable policies that directly state that they cannot do business with entities that take the position that the entire state of Idaho is taking here. They can choose to hold or not hold events at venues provided that they're not doing so in a way that is discriminatory (and in this case, the reason why they're moving is that the state itself is being discriminatory).
IIRC, there are cases working their way through the courts about whether transgender athletes should be able to compete as one gender or the other, and while I agree that the NCAA has every right to boycott or otherwise take actions to pull its events out of states that have discriminatory laws, IMO it should wait for the courts to determine the status of these laws.
For example, the Department of Justice has filed briefs indicating that allowing a male-to-female transgender athlete to compete against females *violates* Title IX, as it diminishes competitive opportunities for non-transgender females. If the courts agree and the NCAA decides to pull out of places like Idaho anyway, it will be boycotting a state for complying with Title IX, a pretty crazy idea.
https://www.justice.gov/opa/pr/departmen...ities-case
Yes, the current DOJ has pursued variations of this argument in several different areas, but the already thin thread of an argument that they had just got obliterated today with the Supreme Court's ruling that language applying to the discrimination on the basis of sex under the Civil Rights Act also applies to sexual orientation even though the law doesn't specifically refer to sexual orientation. Moreover, this opinion was written by freaking Justice Gorsuch (who is even more of an originalist conservative than the late Justice Scalia) in a 6-3 decision, which effectively makes this decision unassailable regardless of who ends up replacing Justice Ginsberg down the road.
That pretty much destroys any attempt at twisting the interpretation of Title IX (which is specifically about sex discrimination) in the manner that the DOJ has attempted. If anything, today's ruling just made Idaho's law a bright line discrimination case. Essentially, any law on the books that refers to sex discrimination means that it also applies to discrimination against transgender people even if such law doesn't refer to sexual orientation at all. I wouldn't be surprised if that Idaho law quickly goes away as a result of today's ruling - it's a surefire loser if they try to battle that one in court now.
I would tend to agree with you about the Idaho law, though not with the same surety you seem to have. IIRC, the DOJ position is that allowing transgender females to compete against biological females discriminates against biological females, and that could be a different issue than employers firing gay and transgender employees, the issue that was decided today.
The key difference here is that a physical disadvantage is not necessarily the same as discrimination. Sex is a protected class, but having (or not having) a physical advantage isn't protected under the law. Also, you could conceivably have discrimination on both sides to a varying degree. For instance, there are many cases where there's a tension between free speech/religious rights and many types of laws (including anti-discrimination laws), so you need to apply a balancing test. In the Title IX instance, you have to balance the rights of the biological female versus a transgender female.
A biological female may have a physical disadvantage against a transgender female in competing in sports. Does that constitute discrimination? Maybe.
On the flip side, a transgender female is told that she cannot compete as a female and can only compete as a male, which is a gender that she does not identify with. Does that constitute discrimination? Yes, where I think that's pretty clearly discrimination in the way that the law is being interpreted (especially after today's ruling).
Essentially, the biological female may or may not have a discrimination claim if transgender females are allowed to play in female athletics. There's a potential discrimination claim there, but you could argue it either way (where a physical disadvantage doesn't necessarily constitute discrimination).
In contrast, the law today indicates that the transgender female would be discriminated against if she is only allowed to participate in sports as a male. The discrimination comes from having to participate as a male even though the transgender female doesn't identify as male. There's isn't much of an argument here - it's bright line discrimination under today's law.
So, it might be a 50/50 discrimination case for the biological female versus a 100% discrimination case for the transgender female.
Plus, putting aside all of that, the Gorsuch opinion from today is incredibly simple: regardless of any cultural issues, the text of the law refers to sex and any issue with sexual orientation inherently deals with sex. If treatment is different for a male compared to a female or vice versa, then it is inherently discrimination on the basis of sex.
Ironically, the narrowness of the Idaho law is why it is shooting fish in a barrel for tort lawyers if the state foolishly tries defending it. The Idaho law bans transgender females from participating in female athletics, yet it doesn't ban transgender males from participating in male athletics. Straight from today's decision, that's a law where one sex is treated differently than the other sex, which is inherently illegal.
Forget about transgender issues for a moment, in these examples no transgeneder people are involved: If a high school or a school district has a policy that girls can try out for the boy's basketball team, but boys cannot try out for the girl's basketball team, that would now violate the Bright Line Gorsuch Rule, right? Or no?
Or if the NBA, which owns the WNBA and NBA, allows women to try out for NBA teams but does not allow men to try out for WNBA teams, another Gorsuch Rule violation (this time Title VII), right? Or no?
Are those really the kinds of things Title IX (or in the NBA case, VII) was designed to eliminate? I'm not so sure.
Beyond that, you make some logical linkages here based on the Gorsuch decision, but I think you downplay some important factors.
1) Categorical (male/female) physical disadvantage is a key concept in gendered athletics. The basic reason we have separate men's and women's sports is because it is generally true that men are more physically athletic than women, even though that's not always true on an individual level. So I wouldn't dismiss that so quickly. That's why in the NCAA transgender female athletes are required to take testosterone suppression for a year before being allowed to compete vs biological women.
2) Regarding the nature of discrimination, you say "the discrimination comes from having to participate as a male even though the transgender female doesn't identify as male." This seems to imply that identity alone is the determinate issue here. But if so, then the NCAA's own policy would seemingly violate the Gorsuch Rule, because as noted above for the NCAA it is not enough for a trans-female to identify as female, they have to take hormone suppression as well.
And if the Gorsuch Rule is applied as you describe it, based on identity, then that basically means the end of separate male and female athletics, because "identity" is a psychological state anyone can claim at any time. What are you going to do, have someone sign an affidavit or swear under a lie detector test that they truly identify as something other than their at-birth biological designation? That's unworkable. Anyone can lie, and it also is demeaning to the trans-person to have to swear to their status. Nobody ever made a biological female swear to being a female.
But seemingly equally unworkable are rules that require hormone therapy or sex-change surgery. For one thing, those things may well not work to actually eliminate disadvantage (and remember, disadvantage is why we have separate men's and women's athletics to begin with, and nobody as seriously suggested ending that). I mean, if someone like Zion Williamson, 6' 8" and 285 pounds of male athletic muscle takes hormone suppression for a year, is it possible the may still have a massive physical advantage over biologically-female basketball players? Are the hormones going to make that underlying male bone structure and muscle mass go away? Ditto for sex-change surgery, which IIRC typically involves only changes in reproductive organs.
So unless Gorsuch et al are willing to destroy separate male/female athletics in colleges, I'm not so sure his new rule can work to undermine the DOJ view or the Idaho law.
But we might see, though.
(This post was last modified: 06-15-2020 04:19 PM by quo vadis.)
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