We Dissent welcomes guest Shiwali Patel, Senior Director of Education Justice at National Women’s Law Center, who walks us through the anti-trans sports ban cases currently before the Supreme Court, Little v. Hecox and West Virginia v. B.P.J. We discuss the history of Title IX and why the attack on trans sports participation is really an attack on the basis of this critical nondiscrimination law.
Background
Previous trans rights episodes
Supreme Court appears likely to uphold transgender athlete bans – SCOTUSblog
Cases
Little v. Hecox
West Virginia v. B.P.J.
Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for Separation of Church and State.
Liz Cavell: And I'm Liz Cavell with the Freedom From Religion Foundation.
Alison Gill: And I'm Alison Gill with National Women's Law Center. And I'm excited to welcome Shiwali Patel, one of my colleagues at the Law Center to speak a little bit about Little v. Hecox and West Virginia v. B.P.J., or as we'll collectively call them the trans sports cases. Shiwali is the Senior Director of Education Justice here at the Law Center, and she has deep expertise in Title IX and other critical civil rights laws that impact schools. Welcome, Shiwali.
Rebecca Markert: Welcome.
Shiwali Patel: Thank you for having me.
Alison Gill: So Shwali, I'd love to hear a little bit more about your background and the work you do. Can you tell us a little bit about your work?
Shiwali Patel: Sure. Again, thanks so much for inviting me on your podcast and very lucky to call myself a colleague of Alison's because we both work at the National Women's Law Center where I lead our education work that primarily focuses on Title IX, a civil rights law that protects against sex discrimination and education been in effect for decades since 1972, the same year the Law Center was created. And I've been working at NWLC for over seven and a half years. But going a bit back, I always knew from a young age that I wanted to focus on women and girls' rights and also working on issues addressing gender-based violence. This is in large part due to experiences in my own family and community. And so when I was in college, I learned about the value of activism and advocating for better protections for survivors. I was a student activist then.
I did education on campus sexual assault. I participated in Take Back the Nights. I created a zine that included a survey conducted of my peers and artwork and resources on sexual assault, and one summer I volunteered at DC Rape Crisis Center. But it wasn't until after I graduated from undergrad at Boston University and working for two years at the DC Rape Crisis Center as an educator that I realized I wanted to go to law school. At DCRCC, I educated high school students, and I worked in the community and taught middle school and high school students and adults about sexual assault, harassment, dating violence and domestic violence and where to get support. I also oversaw planning of citywide events in DC for Sexual Assault Awareness Month and came to a place where I realized I wanted to do more to be able to support survivors. And I had met attorneys along the way when I was working there.
That's when I decided to go to law school. And when I graduated law school, I didn't really have the most linear path of getting to National Women's Law Center, but I knew I wanted to also focus on civil rights and be a civil rights advocate, as well as someone who focuses on addressing gender-based violence. And so I clerked for two years for a judge in DC. I had a brief stint as a trial attorney at the US Attorney's office. I was an administrative judge at the Department of Energy, all sorts of jobs that are not directly related to what I do now, but I think have given me good experience for what I do. And then eventually I landed at the Department of Education's Office for Civil Rights. I started in early 2016. This was under the Obama administration, and I came in at a time when there was a lot of great work happening at OCR.
OCR is like the primary office within the Department of Education, a primary agency that enforces students' civil rights. And so I was a Title IX policy attorney and my colleagues who were there for years, letters, policy documents. And when I joined, it was a month before the OCR release guidance addressing how Title IX protects the rights of trans students. And so I'm proud to say I came in at the tail end and got to help with the end of that guidance and outreach for it, but it was a really important time for the agency and for this country in clarifying how trans students have explicit protections. So that was a really big deal when the guidance was issued. And there was other work that was happening under the Obama administration that was really exciting to be a part of as a policy attorney there. And so when the Trump administration came in and Betsy DeVos became the secretary of education, one of the first actions she took in February of 2017 was to scrap that guidance addressing trans students' rights under Title IX.
That guidance wasn't even in effect for a year because it came out in May 2016, yet it took years to develop. And then DeVos began to roll back protections for student survivors of sexual assault under Title IX. And so during my time at OCR under the Trump administration, I learned that the National Women's Law Center was hiring for an education attorney, and I applied and got the job. And initially my work focused on representing student survivors of sexual assault. We really worked hard to ensure that the Trump administration would not attack those rights. And then it really morphed over the years to meet the moment and to work across gender justice issues and education. And so when attacks on trans athletes began around 2019 with the Alliance Defending Freedom, filing this lawsuit against Connecticut school districts because of trans-inclusive sports policies and then the first anti-trans sports ban being passed in 2020, I became heavily engaged in that work at the Law Center of pushing back against those attacks and really pushing back against the use by extremists or claim that they were quote unquote protecting women and girls by attacking the rights of trans women and girls.
Alison Gill: Thank you so much, Shiwali. Just one note here. I actually worked at GLSEN, the Gay, Lesbian & Straight Education Network back in 2010 and helped drive a lot of the initial advocacy for the rule that you mentioned that came out in 2016. So it took years and years, at least six years of different work very closely with PFLAG and with HRC and other groups, National Center for Lesbian Rights and others to push that forward. And it was really disappointing when Betsy Devos struck it down. I was doing private contract work at the time and that's what convinced me to get back into nonprofit work, that very situation because I was like, we worked for years to get this passed and within one year they struck it down. I was like, "I have to get back in the fight." Right?
Shiwali Patel: Yeah. I mean, it was quite awful.This is a group of students who are vulnerable to experiencing discrimination, bullying and harassment. And in developing guidance at OCR, I mean, there is a lot of work that goes into it. There's meetings with students and families and stakeholders and advocates, school administrators. There's researching what states are doing, tracking the case law. And there was case law, right? There was a Gavin Grimm case at the time where that issue specifically was around access to bathrooms, but also addressed how Title IX protects the rights of trans students to access sex separated spaces. So this didn't just happen overnight. It took a lot of work. And yet when DeVos rescinded it, it was a very short letter of rescission. It didn't have an explanation. It certainly did not involve the same level of thoroughness and thoroughness and thoughtfulness as developing the guidance in the first place required.
I mean, they just rescinded this very quickly and without any explanation, it was devastating.
Alison Gill: Thank you so much. So let's turn to the current transport cases before the Supreme Court. I think this is a good lead in. Can you tell us a little bit about the laws, state laws that these cases are challenging?
Shiwali Patel: Yeah. So these are two cases that are before the Supreme Court. There was oral argument on January 13th on both cases. They've been moving on the same track because of how similar the issues are that's being addressed. And so we will be expecting a decision this summer. But one case, Little v. Hecox, Little is Brad Little, you see governor of Idaho involves the first state to have passed an anti-trans sports ban, which was Idaho in 2020. And so that was the first state to impose an outright ban in school sponsored sports on the participation of women and girls who are trans and banning them from participating on women and girls sports teams. The second case also arose out of a challenge to an anti-transsports ban that specifically banned trans women and girls from playing on women and girls sports team. And this was West Virginia v. B.P.J., and West Virginia enacted their law in 2021 and it bans trans girls from participating on girls sports teams from middle school through college, even in non-competitive sports.
And the plaintiff is Becky Pepper Jackson or B.P.J. for short. At the time, she and her mom have called before this was signed into law by the governor. They've urged Governor Jim Justice to veto the bill. There were tens of thousands of others who did the same and he signed it anyway. One of the differences I'll say about between the two is that in the Idaho law, it also allows anyone to question whether a student is quote unquote really a girl, which would then force her to have to prove her gender, which could involve blood work, chromosome testing, even gynecological exams. And so initially when that lawsuit was filed, there was also a cisgender girl high school athlete, Jane Doe, who had filed a lawsuit because of the very real risk that it poses to all women and girls, including girls who are cis who don't fit traditional stereotypes who might be more likely to face questioning as to, in someone else's idea, whether or not they really are a girl.
That's terrifying. And now today, more than half the states have anti-trans sports fans, which is horrific.
Rebecca Markert: It's terrifying to think that somebody would do that type of exam on my child just in order for them to play a game.
Liz Cavell: And anyone under the Idaho law, Shiwali, anyone can trigger that, like citizens, teammates, parents or …
Shiwali Patel: Yeah. It's not limited to this to school. It's not limited to school administrators. So again, you can imagine the type of gender policing. And we've seen this. In Utah, there are a couple of examples where cisgender girl athletes had their gender question because of how well they played or because of wearing baggy clothes or having short hair.
Liz Cavell:Wow.
Shiwali Patel: In one case, it was a soccer player and there were parents, they played another girl's team and parents of the losing team complained and thought that this cis girl was trans. And so that led to this school essentially secretly looking into her records to see whether or not she was trans.
Alison Gill: We often say that these laws hurt all women and girls, right? And so maybe this is a good example of that.
Shiwali Patel: Yeah, absolutely. There was another girl too who's a basketball player. And I believe a school board member kind of implied that she was trans on social media, and then that girl in her family received a lot of harassment. They ultimately received police protection as a result. There are countless examples, many of that we don't even know about, just what the media has reported of cis women using the women's bathrooms being harassed because someone didn't think that they were cis. So this is really harmful to all women and girls, and it's about forcing us into these gender-based stereotypes, like putting us into these boxes of what it means to someone else, what their idea is of femininity. And if we dare to defy their stereotypes, we are now subjected to invasive scrutiny. It's very harmful and really scary, to be honest, especially at a time when there are escalated attacks on women, on trans people, on this push to push us back into narrowly defined gender roles.
Alison Gill: So one thing that I'll think gets lost in these conversations about these laws is the trans young people that are challenging them because I mean, they focus so much on the schools and women's sports, but I feel like the plaintiffs often get lost. Can you tell us a little bit more about the plaintiffs in these cases?
Shiwali Patel: Yeah. Yeah. So Becky Pepper Jackson, at the time the court heard oral arguments this year in January, was 15 years old, 10th grader, but she brought this case when she was 11 years old and these kids, any student athlete, whether or not they're trans or cis, wanted to play sports and hang out with friends. She's like any other kids who likes hanging out with their friends. She has dogs and loves to play with them. She was also marching in her high school band and she was also throwing discus and shot put for her school's track team. She comes from her family runners and being part of school sports has always been a way to connect with people she loves and loves to be in community with. Again, as it is for anyone playing sports, especially kids. And Becky also is transgender and she's known that she was a girl for as long as she can remember.
And in 2019, she was diagnosed with gender dysphoria, which is when puberty began and she started taking puberty delaying medication to avoid the distress of developing in ways that didn't match who she is. And so by fourth grade, she was recognized as the girl she is at home and in school. So when she was 11 years old, she had filed this lawsuit challenging the West Virginia law under Title IX and also the Equal Protection Clause. The federal court granted her preliminary injunction, allowing her to continue playing sports, and she is an advocate.
She said, "All kids, including trans kids, deserve to play sports." Lindsay Hecox brought the other lawsuit challenging Idaho's, an anti-trans sports ban, again, the first sports ban to pass in this country in 2020. She's 25 years old. She is a transgender woman who was a freshman at Boise State when this lawsuit began more than five years ago.
She had run track and cross country in high school and she wanted to compete at the college level. And as part of her treatment for gender dysphoria, Lindsay took and takes testosterone-suppression estrogen that lowered her testosterone levels, reduced muscle mass, and at the time there were NCAA eligibility requirements that she had met to compete on the women's teams. However, now, unfortunately, the NCAA has implemented a ban in response to, which I know we'll talk about later, the Trump administration's attacks on trans people, and in particular, trans women and girls and trans women girl athletes. But despite this, the Idaho law, HB 500 barred her from even trying out. And so for both Becky and Lindsay, competing on the boys team or men's team wasn't a real option, would conflict with their gender identity and their medical treatment plan. And so these are bans on their ability to play sports and to push them out of this important opportunity to develop the benefits of playing sports, right?
Learning good sportsmanship, developing leadership skills, the social emotional benefits that come with playing, the academic benefits, all things that have been well documented and well researched. So it's clear violations of Title IX, which is about ensuring equal opportunity. And so here we are now with our lawsuits.
Alison Gill: I think that's a great point about the benefits of sports. These laws were passed across the country in a big wave one year, and the next year they passed a lot of laws blocking trans people, trans youth from accessing medical care. And so I think in many ways these were sort of like a stepping stone, a way for them to start legislating against trans people, against trans youth in a way that was publicly acceptable, and then it started to get worse and worse and worse, right? Every year since then, we've seen more and more anti-trans bills. So I think that's worth noting, this was like a crack in the door that then allowed them to legislate against healthcare, against using bathrooms, against their civil rights utterly, right?
Shiwali Patel: Yeah, absolutely. I mean, it's so important to understand what has triggered this, right? Because this is really a manufactured issue. It's not a real one. And it was developed and pushed by the far right, even though they claim to, again, and I quote because it's not actually doing that, protect women and girls. Idaho's role in this in 2020 was really important because that, to Alison, your point has really … It started with Idaho and then dozens more states began to push back against the rights of trans women and girls, and then more broadly on other protections for trans people. And they positioned this, the conservatives did, as a culture war issue and became a centerpiece of their political strategy. And so going back a few years, conservative groups, and there's been reporting about Terry Schilling, who's a strategist with American Principles Project, and how he realized that this was an issue that could reliably excite Republican and potential swing voters to vote for them and to then draw them into broader cultural debates surrounding trans rights to further chip away at the rights.
Because once you start dehumanizing trans people and seeing trans women and girls as different from other women and girls and less deserving of the same protections in sports, it then becomes a starting place for then chipping away even more and more on their rights, right? And that's what we've seen. Also, when these bans began passing in the States, a lot of it was through model legislation developed by groups like Alliance Defending Freedom and Heritage Foundation. Heritage Foundation is behind Project 2025, or at least half of that plan has already been implemented by the Trump administration. I mean, clearly these are groups that don't care about women's rights. They are advocating against our reproductive rights, healthcare, equal pay, protections against harassment, and yet they claim to be protecting women and girls, but really it was about attacking trans people and energizing their base. And the media also played a huge role in this.
Media Matters did a lot of reporting from January 2019 to March 2021, for example, that Fox News had aired at least 126 segments about trans athletes with 72 of those in just the first three months of 2021, more than double the total from 2019 and 2020 combined.
Liz Cavell: Whoa.
Shiwali Patel: And yeah, so there was just such a focus from the political strategists, the funders in the elections, from the media. They amplified this and they made this part of the narrative and to make this into an issue and to position itself to become a cultural issue that impacted elections and how voters felt. And then of course, in recent years, Riley Games then came into the spotlight after she tied fifth place with the trans swimmer, Lia Thomas in a 2022 NCAA competition, then being paid as a spokesperson for this conservative push. And Mother Jones recently, there was a really great podcast episode that dug really deep into Riley Gaines and how she became in the spotlight and viewed as a leader to push back against trans rights. And she's also been stated, I think in one of those pieces quoted to say that, again, this is never just about sports.
It was really broadly about attacking the rights of trans people.
Alison Gill: So let's talk about the cases. What were the arguments challenging these laws and how did the lower courts rule?
Shiwali Patel: So both laws involve categorical sports bans against participation of trans women and girls in sports across different sports, across different competitive levels. And in the book cases, in the Hecox case and BPJ, they have brought an equal protection challenge claiming that these bans violate the Constitution. And the BPj case challenging the West Virginia law also has a Title IX challenge saying that the law also violates Title IX of the education amendments of 1972. The Ninth Circuit in Hecox upheld an injunction against the Act and the Fourth Circuit held that West Virginia violated BPJ's Title IX rights, but it remanded on the equal protection case for further factual development. I think it's also important to take a step back here. And on the Title IX piece in particular, which we had filed an amicus brief on, it's really important to understand what the history of Title IX is because the other side keeps saying that Title IX means one thing.
Title IX is intended to do a thing, which means that supports their reason that Title IX should ban trans women and girls when that's actually not reality. And we're also seeing how the Trump administration is now enforcing Title IX in a way to require schools to ban trans women and girls, which goes even further than what we're seeing in these challenges because the challenges are addressing whether or not these schools can allow these bans, but Trump is saying, no, Title IX requires it, even though Title IX does not mandate results.
Rebecca Markert: I think it would be helpful to hear a little bit about the history of Title IX because I don't believe we've ever talked about it extensively on this podcast before. So it might be helpful for our listeners to know a little bit more about the history and the purpose of Title IX.
Shiwali Patel: Yeah. So when Title IX was enacted decades ago of 1972, Senator Berchbay was the principal sponsor in the Senate and has said that the goal broadly was to root out sex discrimination and education caused by sex-based stereotypes because it was these sex-based stereotypes that led to women and girls being denied equal opportunity, being denied eligibility into certain academic programs or being viewed as athletically inferior and therefore not having the same opportunities to play sports. Sex-based stereotypes are really the root at so much sex discrimination. And that was what the sponsors of Title IX and the goal was to eradicate because of the role it played in discrimination. So in 1975, three years later, the first agency regulations were issued and finalized. And it was not the Department of Education. It actually was the predecessor department of it. It was the Department of Health Education Welfare, which was then split into what we have as HHS and Department of Education today.
And before the department or before HEW, I should say, finalized their regulations, which address sports because the statute itself does not explicitly talk about sports. The regulations is where really the meat of the Title IX protections are. At the time, there were some members of Congress who wanted to exempt athletics from Title IX's coverage, or they wanted to exempt revenue generating sports from Title IX's coverage because they felt that men's teens should be treated differently and men's revenue generating sports, but that was denied because again, it doesn't matter whether or not a sport generates more revenue. That doesn't mean that civil rights protections don't apply. And so Congress is very clear that no, Title IX does apply to sports and revenue generating sports, but they did allow the Javits Amendment, which was proposed by Senator Jacob Javits at the time. He was a Republican from New York.
That was the amendment that directed HEW to develop regulations specifically to "include with respect to intercollegiate athletic activities, reasonable provisions considering the nature of particular sports." And so Title IX permits sex separated sports, but it does not require them. And even still when it permits sex separated sports, it's only under certain conditions. And in fact, when their Title IX was being enacted and when the regs were then being developed and then finalized, there were some groups and women's groups who were advocating for mixed gender sports teams because they were concerned that by separating sports by sex, that women and girls sports teams would be treated less favorably, would be kind of like what we see today actually giving fewer resources and funding, but ultimately they permitted sex separation. And the reason wasn't because of some presumed biological advantage that they believe men had over women, but it was really to address the long history of exclusion of women in sports, stereotypes that were used to exclude their participation.
And the goal was then to ensure that women and girls could develop their athletic skills and abilities by playing on teams that would play with them as equal opponents or teammates, right? So if they played on a mixed gender team, are they going to face harassment? Would the men who they're playing with be willing to pass on the ball or to really play with them as opponents? There were concerns about that, validly so. And so I think the irony today is that while the stereotypes that led to women and girls being denied opportunities to play sports were stereotypes about them being less athletic, more frail, less competitive. The types of anti-transforce bans that we see today are rooted in these same types of stereotypes, linking being assigned male at birth as somehow categorically athletically superior to being assigned women or female at birth as being smaller, weaker, and less athletic.
You see the same types of stereotypes that are underlying these anti-trans sports bans, which contravene the purpose and intent of Title IX when it was enacted decades ago.
Alison Gill: That history is so important to understand because you're exactly right. I've seen all these legal arguments are full of them making the case that women can possibly compete and that, well, first of all, they just call trans women men, and that's just part of a refrain too, and they treat them exactly the same, even if there's massive differences, which I think is a big part of these cases too. So I think that's really, really helpful history. Thank you for going through all that. So let's go look at the Supreme Court. You've talked about the lower court cases. What were the issues before the Supreme Court?
Shiwali Patel: The Supreme Court was considering the Title IX and the equal protection issues, the questions presented before. And the court essentially is, do these bans violate Title IX? Do they violate equal protection? But the court was really focused on what to do with the almost half of the country, almost half the states have laws that include trans women and girls on women and girls sports team. They really wrestled over whether or not Title IX or equal protection would have to have a uniform answer as to whether or not Title IX requires one way or the other inclusion or exclusion and seemed to, I think, want to leave room for states to be able to have policies that are inclusive and just focus on the narrow question of whether or not the bans violate the law rather than implementing a rule that would require a ban across the country.
There was also questions about scientific uncertainty, including questions posed by Justices Barrett and Gorsuch and Kagan. They were wondering about the science. There were disputes about whether testosterone suppression eliminates athletic advantage that had come up. Should they defer to state legislators? Do they need stronger evidence or should the record be complete? And in the lower courts on that issue of scientific certainty, the Title IX interpretation was also a key piece of this. There was some mention around disparate impact. Just going back, there was also an attorney for the DOJ, so the Trump administration who also provided oral argument. And so there were questions that the government was also answering, but on this piece of does Title IX and equal protection allow for states to have inclusive policies, how the court comes out on that could also and would have an impact on what the Trump administration is doing today because they are claiming, again, that Title IX requires exclusion and have been threatening to pull millions of federal funding from educational institutions and school districts that have inclusive policies.
I think, unfortunately, there still likely will be a ruling that will allow the bans exist in some form, but my hope is that based on the questions, that at least it will not be so broad in a way that could pierce a whole in what the Trump administration is doing with Title IX.
Alison Gill: That sort of leads right into the oral arguments. It seemed to me, based on what you were saying, it was similar to that, the justices were trying to reach a point where they wanted to find a way to allow these state laws, but also not condone a sweeping, state's Title IX sweepingly does not allow some states to go the opposite way and allow trans young people to participate in sports. Is that your read as well? What do you make of the oral arguments?
Shiwali Patel: Yeah. Yeah. I think they really wrestled on, does Title IX require a national rule? Would it allow state by state variation? I mean, there's at one point, and Kavanaugh was also really interested in this question. And remember that Justice Kavanaugh was also a coach for his daughter's basketball teams. And at one point during oral argument said something to the effect of he would hate for any student to be denied an opportunity to play sports and had asked at different times, alluding to wanting to allow states to have their inclusive rules or to not touch what other states are doing and allowing some state by state variation. So I agree, Alison, with that. So in terms of how broadly these rulings should be, that was definitely a theme. And the other was on the scientific uncertainty piece that had also come up a few times, especially when addressing the constitutional scrutiny around these bans, because the constitutional question was in both Hecox and BPJ, the Title IX question again was only in the BPJ case. I will also say that in the Idaho case that there is another question on mootness because the threshold question even before reaching the merits in Lindsey Hecox's case is whether or not the case is moot because she had submitted a sworn declaration. She said that she stopped playing sports covered by Idaho's law and she was entering what she hopes is her final year of college. She said she's willing to permanently step away from competition to focus on graduating without the stress and public scrutiny of the ongoing litigation. She's agreed that the lower court's rulings in her favor can be vacated because it's been really difficult and stressful and challenging to be the face of this lawsuit. And I think it's so important to underscore how hard it is to be a named plaintiff in these lawsuits, especially at a time when the vitriol and the attacks are so, so strong.
And yet, even though she wanted to dismiss this and the rulings in her favor, Idaho still pressed on in wanting to continue the lawsuit despite how much negative attention has provided her and how much she just wanted to focus on finishing her school because the stress of all this has just made it difficult to do that.
Rebecca Markert: How much was the mootness part of it brought up at oral argument?
Shiwali Patel: There was some questioning around mootness. This was brought up in the first case against Lindsay Hecox, and maybe it was Satomayor, who I think raised questions about the cost of putting someone through these cases and to forever have your name attached to a lawsuit. There's that very real public scrutiny of you as the named individual. The names are forever there. We associate these lawsuits with the plaintiffs, with their stories. And so even if the Idaho is claiming they wanted the issue to be dealt with, they wanted a decision on the merits, it wasn't so easy as, "Well, we'll just push this case and it shouldn't impact Lindsay." No, it is going to have a great impact on her, not just now, but for as long as this case will exist, for its history, for the future, because her name is always going to be on this.
And she just wants to move on with her life. So there was some focus of the mootness argument in the Hecox argument, but it wasn't the majority of the argument because again, there were questions that were centered around scientific uncertainty. There were questions about whether or not there should be a broad ruling or what happens to those 20 plus states that have inclusive rules.
Alison Gill: Can I just say we see this over and over again when it comes to issues the Supreme Court wants to take up and deal with? A good example is the Coach Kennedy case, right? Kennedy v. Bremerton, where there was no real chance that Kennedy's going to go back and teach and be a coach in Washington State after he moved to Florida. And I think Americans United represented the school district and they said, "Well, we suggest there's mootness here," but they really wanted to have a ruling on that, so they move forward with it. But we see this constantly. We see manufactured standing by groups like ADF and we see nursing standing don't seem to matter all that much when it comes to a decision that they want to really rule on.
Shiwali Patel: Yeah.
Alison Gill: So we've already talked about this a little bit. Decision could come down at any point. Controversial ones tend to be a little bit later, maybe June and July that time period, but we don't know how things are going to turn out, of course, but what do you think this case will end up looking like?
Shiwali Patel: Yeah, we definitely don't know and can't say for sure even based on oral argument. But what I think and heard from reports by other legal advocates is that it seems that, again, unfortunately that the court may uphold the bans and that they will not uphold it in a way to disallow other states to have inclusive policies. So in that way, depending on how they frame that part of their decision, I think it could have an impact on what the Trump administration is doing. I mean, schools should not be capitulating in the first place because their interpretation of Title IX is just wrong. They're weaponizing Title IX to force schools to discriminate against trans students, but now they have even a stronger legal basis to push back when the Trump administration is demanding they implement bans in order to maintain their federal funds. We might see the bans be allowed to remain in place, but that states that have inclusive policies could also keep their inclusive policies.
There's the other question about Bostock, right? And this came up a bit as well, not as much, but Bostock, that Title VII's protections against sex discrimination include protections based on trans status, trans identity, and sexual orientation. And Title IX in prohibiting
Sex discrimination education, often courts are interpreting Title IX's protections. They often look to Title VII. So it's logical for Bostock's analysis to apply to Title IX, and several lower courts have said that. And Title IX is much more than about sports. There are so many provisions. And so whether or not the court will say anything about does Title IX in and of itself apply the same analysis as Bostock with some different treatment of athletics? I'm not sure, but I think that's the other thing to look for. And maybe they'll just avoid it and they'll just focus on the narrow issue that's before them of sports, but that's the other part of the decision.
Rebecca Markert: I'm curious to hear about your thoughts more on the Bostock discussion that we were just having, because Justice Gorsuch was the one who wrote the Bostock decision. So how vocal was he at oral argument and is there any glimmer, I guess, of hope that we could see coming from him on this decision?
Shiwali Patel: There was a question that Kavanaugh asked to the DOJ attorney about, would Bostock apply? At one point, I think he said, "Finish this sentence. Bostock does not control here because … " And then he said, "Well, actually it doesn't because it doesn't classify transgender status." So there's that whole piece, whether or not they're even going to say this law classifies untrans status. If it's just focused on the sports piece, then they might avoid the broader question of whether or not Title IX protects against discrimination based on trans status. I didn't get an indication from Gorsuch's questioning or statements about whether or not he felt that they would answer the Bostock question for Title IX here. This is also related to Skrmetti because in Skrmetti, the gender affirming care ban case, the restriction, which was a gender affirming care ban was kind of considered to be more neutral, not a restriction based on trans status or sex.
And the court focused instead on it being, or held that it was based on age or medical treatment. I disagree with that approach, but that's what the court held, the majority. And so they avoided that question. So similarly here, what has come out in argument is in the context of sports bans, would they say something similar about how this isn't a sex-based classification or even one on trans status, which I don't know how you would be able to argue that, or is it more on competition or fairness? And that these bans aren't targeting trans women and girls because of their status, but other criteria. So maybe they'll try to sidestep in that way based on their reasoning in Skrmetti.
Alison Gill: That seems to me it walks directly into sex though, like for Title IX, right? If they try to separate it that way. I mean, in Bostock, Gorsuch famously said, "This is discrimination based on sex." So I don't know. It's interesting. I don't understand how you can affect sports, but not other education issues under Title IX. If they're excluded from one, what's the differentiation? And that Title IX affects things like harassment. It affects things like admittance and being treated equally in schools, like courses, all sorts of things, right? And if there can be broad discrimination against trans students, that could have real repercussions, couldn't it?
Shiwali Patel: Yeah, of course. These laws are flat out discriminatory against trans students and particular trans women and girls. Their whole purpose and intent, even if they don't have the word transgender in the law, it's clearly motivated by anti-trans animists and it's clearly intended to ban trans women and girls from participating in sports and really erasing discrimination protections for them. I'm just kind of speculating on how the court might view these particular issues kind of more in a maybe Skrmetti type light than Bostock, but I don't know because there is that broader question about Bostock's application to Title IX. So the Law Center submitted an amicus brief and putting aside the fact of how blatantly discriminatory these bans are against trans students, Title IX, as we argue, requires inclusion of trans students in sports because when you ban trans women and girls, effectively, you're not allowing them to play school sports because of their sex and denying them an opportunity to get all the benefits from playing sports because these bans are flat out discriminatory against trans students. That is what we've have been saying over the years and that Title IX requires trans-inclusive sports policies. And these sports fans don't actually address factors that contribute to competitive advantage. It's important to know, as any athlete would, that athletes come in different shapes, sizes, physical makeups that may be more or less advantageous depending on the athlete's sports and oftentimes we celebrate that, right?
So for some sports, more dominant athletes may be flexible and strong and others height matters like basketball, being tall or gymnastics, being short, hand-eye coordination, left-handedness for fencing. I'm a left-handed person. Who knew? Maybe I should stick up fencing or quick reflexes. And then there are actual inequities that also contribute to competitive unfairness based on financial resources, right? Having the financial means to be able to go through special camps, trainings, coaching, all of that helps with developing a skill and being more competitive in sports. And I have two kids right now and I'm definitely seeing the cost needed to be able to get them to train so that they can be competitive enough to play if and when they're interested in doing that. It's really expensive. There are disproportionate inequities based on socioeconomic class and equities that we see that also specifically harms Black and brown girls who are more likely to be in under-resourced institutions that, again, they're not funding or supporting sports in the same way.
And then the other issue is that, as I said to you earlier when I discussed Title IX's history, is that associating athleticism exclusively with masculinity and banning certain women and girls from playing sports subjects all women and girls to increase gender policing, suspicion and harassment because if a woman or girl doesn't meet stereotyped ideals of femininity because she's so strong athletically or tall or muscular, wear short hair, wears baggy clothes and she's going to have her femininity called into question and we've seen this happening that's led to harassment and shame and embarrassment. And then third, and I think very important to underscore is that these bans don't actually address gender-based disparities in sports. High school girls still have over a million fewer opportunities to play sports than high school boys. College women have, I think, about 60,000 fewer opportunities to play. In our amicus brief, we cited that in the two states that are in these lawsuits in Idaho, boys have more opportunity to play high school sports.
And in West Virginia, the same. And women's sports programs remain underfunded. They have fewer resources, less access to athletic scholarships. We are now in the NIL landscape where name, image, and likeness deals have exacerbated the financial resources provided to college athletes based on gender. And then of course, we've all heard about the high profile cases of sexual harassment against student athletes, especially women and girls by men in power like Larry Nasser or Lars Jorgensen. These are the issues that lawmakers should try to resolve if they truly cared about protecting women and girls in sports.
Liz Cavell: Yeah, that's such a good point. And Shiwali, one of the things that came up at oral arguments, and it came up in the context of there aren't enough transgender athletes to constitute a class that would be protected under equal protection, right? That there's some sort of critical mass of people in that group to make them a suspect class. And one of the things that Sotomayor, she always does so eloquently said was, "Well, the numbers don't talk about the human beings." And you're raising the very critical point that 2020, the first state to ban trans girls in girls' sports happens. And now six years later, all of a sudden, half of the states have a ban. And what the far religious right wants you to believe is that in that time, they're just responding to this explosion in trans girls just ruining girls' sports and creating this unfairness that never existed back when America was great, but really it's probably the same three girls in the whole entire state that are even affected by the ban.
And I don't have the numbers in front of me, but I would bet a hundred bucks. Those numbers haven't changed that much from 2020 to now, but what's changed is what you've talked about, which is that this has been a concerted political effort to scapegoat a group of people and kind of change the conversation from other things politically. But I just think it's so important you started with this, and I think it's important to end with this, which is centering the human being. This is at the state level passing a law that basically targets less than a half a dozen kids in any given state and the numbers don't talk about the human beings. And that's definitely what's going to be missing from the Supreme Court's decision. However it comes down is like any kind of discussion of the actual impact on the actual humans who happen to be mostly kids, people under 20, who just are trying to play sports.
Shiwali Patel: Yeah. Yeah. I mean, there was an AP piece about this a few years ago that looked into these state lawmakers that were sponsoring these sports bans through legislation. And in many cases, the lawmakers couldn't even identify a trans student, much less a trans student athlete. So yet they were focusing all these resources to the sports ban because again, this was never just about sports. It was not ever about protecting women and girls. It was about something much more deeper. It's about legislating trans people out of existence and erasing trans people from protections, from anti-discrimination protections and really controlling us all and how we show up in our gender. And so I don't know, that point couldn't be underscored enough. And in the meantime, these handful of students that have come forward so courageously and so bravely, they shouldn't have to. They should just be able to be students and be themselves and play and be like every other kid.
And now here they are defending their rights and defending the rights of other children and facing a lot of scrutiny and vitriol as a result.
Rebecca Markert: I wanted to touch on that point a little bit because after the oral arguments, some of us got together on a call and that morning there was a rally at the Supreme Court, Becky was present and went to the oral arguments and afterwards she came out and everybody was chanting her name. And her attorney had reported that she turned to her and said, "I've never had that much support before." Usually when there's chanting, it's not a good chant. And to feel the support outside the Supreme Court was just so heartwarming. And I still, every time I think about it, I get goosebumps that like at least she had the support there at the Supreme Court and was able to see it because yes, there's so much vitriol thrown at these children who just want to participate in sports with their friends and have fun.
Shiwali Patel: Yeah. Yeah. I mean, that was really powerful to hear. And it also made me really sad that she was like so used to-
Rebecca Markert: Yeah. Right,
Shiwali Patel: Right. A lot of vitriol and anger directed at her. And then it also makes me so angry at all these institutions that did not have the courage to stand firm and their commitment to inclusion when you have these children that are sticking their necks out to defend their rights, like how shameful for NCAA and all these other sport governing bodies to just roll back these protections and to essentially give the other side, the extremists, a win.
Alison Gill:We've talked about how it's been a handful of students in some of these states and in some states they can't identify any trans students, the laws are actually impacting. But I'll say this also, it affects every trans student, every trans young person in the state when these laws are put forward, because they see the conversation, the discourse, they see their rights are under attack. They see the lawmakers that are elected attacking them and their identities and saying they're not valid. And all sorts of horrible things are said during these fights over these bills. I used to work at the Trevor Project, which is an LGBTQ youth suicide prevention hotline and other work. And so you saw the impact that these things have. When these laws are moving forward in a state, it has a real psychologically negative impact on trans young people. And so I think that's worth noting too, like this is, as you said, it's all political.
It's not really about women's sports, not really even about trans people. They're a wedge issue, but they're suffering these consequences regardless.
Liz Cavell:But that, Alison, I think really actually is a true aim of these bills. They're not about sports safety or fairness, but they are aimed at doing exactly what you're describing. They're a signal to everyone in this community that you're being targeted, your existence is like under attack. And that's part, I think, of the project of it's not just like a political wedge or like trying to elevate this culture war issue. It's that too, but it's a campaign of terror.
Rebecca Markert: So I want to talk about how these cases fit within the larger context of Christian nationalism. There were no religious liberty claims at the US Supreme Court, which is one of the reasons why Americans United, and I think FFRF didn't submit amicus briefs, but I think it's pretty clear to those of us here and our loyal listeners, these cases do really reek of Christian nationalism. And so I just kind of wanted to talk a little bit about how these cases are playing out in the rise of Christian nationalism and why those of us who work in this space should be worried about these decisions.
Shiwali Patel: Yeah. I mean, I think a lot of it also goes back to the groups who were behind this, right? It was alliance defending freedom,
Right? These are the groups that are pushing for Christian nationalists and using religion as an excuse to undermine discrimination protections or force and allow discrimination against anyone and including the most vulnerable amongst us. So I mean, that really speaks volumes of how this is part of their broader strategy and pushing not only again to erase protections for trans people, and part of that really is also pushing us all into very narrowed definitions or ideas of gender and the role that we're supposed to play based on our sex assigned at birth, that sort of biological essentialism, which is also underlying these anti-transports bans because it's based off of biological essentialist views on our abilities, based on our sex assigned at birth. So I think we should be alarmed because again, looking at the groups and their broader agenda, it's clear that these are the same groups that are pushing for Christian nationalism, but also that they never just, they didn't end with sports.
I mean, it began with sports. I mean, really, they tried with bathrooms with North Carolina and that failed in 2016, right? And then this became an issue that they manufactured in 2019, 2020, and then just skyrocketed. And now we're seeing so much more legislation and policies that are attacking the rights in existence of trans people more broadly, which to the points that were made earlier, it's about forcing gender roles and allowing for gender policing and pushing all of us into specific roles, cis women as well, based on our sex designed at birth. So I think there's this deeper underlying goal that they have that the sports bans a part of, but it obviously doesn't end with the sports bans.
Alison Gill: I agree. And I also think if you look back at some of their earlier strategy thinking about this, someone mentioned Terry Schilling before and like the strategy here. This was after marriage equality was one and I think that had enough public support that they were looking at other lines of attack. And I think that they identify trans people as a group that's specifically vulnerable. There's much fewer of them, fewer people know a trans person, and this is the line of attack that they found, which was athletics. And so, but I think it's part of a larger strategy to undermine support for LGBTQ equality more broadly. And it's worked to some degree. Same sex marriage is more vulnerable than it used to be, non-discrimination laws protecting LGBTQ people are more vulnerable than they used to be. So I think to some degree, I think that's worked.
I also find it kind of fascinating that there were no ready-made religious arguments against transgender people. Unlike, if you look in the Bible, it says something about, obviously there's that famous phrasing around men who sleep with men, for example, but there's not much in there about trans folks. And so a lot of it was sort of reinvented after the fact. And I found that they had to justify the hatred and it was kind of amazing, but that's just my opinion.
Liz Cavell: Well, I mean, again, it all just happens to align with an extremely conservative, religious view of the appropriate spheres of genders. I mean, and the involvement of ADF obviously speaks to this too. It's like they exist to enforce a narrow Christian worldview on everyone in American society through policy and litigation. That is what they're doing and their attacks on LGBTQ people and undermining anti-discrimination protections for LGBTQ people and their anti-abortion program. Everything they're doing is all to force us all as a society to become more reflective of one specific narrow worldview. And I think gender, binary man, woman, literally just like Adam and Eve BS is so much a part of that. And that's what they kind of slot the trans controversy into is that it disrupts that simple man/woman spheres of domestic influence. It's clearly part of a broader strategy to further Christian nationalism.
Alison Gill: Well, I really want to thank Shiwali for joining us today. It was really insightful and I really appreciate your expertise in both Title IX and also our discussions on these two cases. So we'll eagerly wait to see what the Supreme Court does and want to thank you for your time.
Rebecca Markert:Yeah, thank you so much. This was amazing. What our listeners probably didn't see and what I actually love because I love seeing moms interact with their kids and still being incredibly amazing at their jobs. Shiwali's kids were home today and kept popping in and out during the interview. And you were still amazing and gave us so much insight and I love to see it. You can be a working mom and still be badass. That's awesome. Thank you so much.
Shiwali Patel: Thank you. I really enjoy this conversation and appreciate you all inviting me.
Rebecca Markert: Well, that is it for today's episode. I'm Rebecca Markert.
Alison Gill: I'm Alison Gill.
Liz Cavell: And I'm Liz Cavell. If you haven't already, please follow us on our socials. We're on Facebook, Instagram, Blue Sky and X. And please also remember to let us know how you're liking the show by leaving us a review. You can also find us at we-dissent.org. Thanks for listening.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion Foundation, the National Women's Law Center, and Americans United for Separation of Church and State. It is hosted by attorneys, Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio engineering is provided by audio for the arts based in Madison, Wisconsin. Thanks for listening.
