WASHINGTON, D.C. – Today, America First Legal (AFL) and its co-counsel, Christopher Mills, filed an amicus brief in defense of West Virginia’s Save Women’s Sports Act, which requires students to compete based on their biological sex. After the District Court upheld the Act as constitutional, the Fourth Circuit reversed the decision. 

The Fourth Circuit’s opinion overturns the long-held understanding that “sex” in Title IX means biological sex and not “gender identity.” The Fourth Circuit held that “discrimination based on gender identity is discrimination ‘on the basis of sex’ under Title IX.” This conclusion ignores the critical distinctions between males and females we all recognize and which Title IX protects. 

The Fourth Circuit’s decision destroys Title IX’s protections for girls and girls’ sports. It would require a school to permit any boy who identifies as a girl to participate in girl-only sports. This is because the Fourth Circuit’s decision finds that a boy who identifies as a girl is “similarly situated” to a girl, and treating that boy differently than a girl is discrimination. 

This is obviously wrong. A boy who identifies as a girl is “similarly situated” to other boys because the critical consideration is the boy’s biological sex, not his self-identification. Sex-separated activities discriminate based on sex and not gender identity.

Title IX was designed to protect girls’ sports, women’s bathrooms, and locker rooms by recognizing biological differences and realities. This erroneous reading of Title IX fails to combat “pervasive discrimination against women with respect to educational opportunities.” McCormick, 370 F. 3d at 286. The end result is the destruction of women’s sports and private spaces.

AFL will continue to fight to protect women from being forced to compete against men.

Read the amicus brief here.

Photo Credits: Adobe Stock Images / Tierney.