I’m going to say it: I want SCOTUS to rule for WVa in West Virginia v. B. P. J. and to rule based on the Spending Clause. I may be the only person in the world who wants that. But that’s what I want. It looks like Mr. Williams, who represents WVa, would be fine with winning based on the “Spending Clause.” Mr. Moopan, who represents the Feds? Nope. Nope. Nopey, Nope. You can read a bit about Spending Clase the exchanges during oral arguments in Josh Blackman’s post at Volokh.
We can discuss why I want the ruling based on the Spending Clause in comments, but the way I see it: These “transgender” cases are coming hot and heavy now. But cases that could trim executive power in favor of leaving States latitude? Less common.
So what follows is my view on why I’d like to see a ruling based on the Spending Clause.
Title IX is passed under the Spending Clause. If I understand correctly, when a statute is passed under the Spending Clause, federal funding cannot be withheld from a state based on unclear statutory terms; the statute must clearly specify the conduct or condition that could result in funds being withheld. There is an argument that WVa violated Title IX. But, given all the strum and drang over what ‘sex’ means under Title IX and the fact that Congress almost certainly did not mean “gender identity,” one would argue that it is at least possible they did not mean “gender identity.” If they did mean “gender identity”, they could have said so way back when, and they certainly could get together and modify the bill to say so clearly now. So WVa should not be subject to withdrawal of Federal funds for interpreting it to mean “biological sex.” And so their bill does not violate Title IX.
With regard to statutes passed under the Spending Clause, what a ruling on spending would do (among other things) is:
- Preserve state latitude to do things unless Congress writes a bill that clearly withdraws that latitude, preventing funds-withholding coercion based on unclear statutory terms.
- Reduce administrative overreach to interpret statutes as doing more than they clearly say.
- Stop executive flip-flopping that happens when the preferences of the executive branch change — generally due to election of a new President.
- Force Congress to own its decisions, or admit its non-decisions.
That said, if the ruling is purely on the Spending Clause, this does a few things some people might not like:
- Applies to lots of cases outside the “transgender” issue. This could be seismic.
- Allows states like California to pass the law it likes on the transgender issue. After all, if what Title IX says about “sex” is unclear, Cali can’t have its funding yanked either.
- Trims all executives—including the current sitting one—of the power to use an ‘unclear’ statute to carry out their preferred interpretation.
- Makes legislatures have to pass laws about transgender rights instead of trying to twist laws that were not even thinking about the issue when they were passed.
- Leaves the “equal protection” argument alone, for the time being, and leaves defining what “sex” means until later. But while doing so, it forces Congress to be explicit in future laws.
My prediction: If the ruling is based on the Spending Clause, Congress will not modify Title IX to tighten the language. This is because too many Congress critters would be thrown out of office.
For the time being, I am holding my opinion on how they would rule on the “equal protection” argument in Idaho. But I’m pretty sure my feeling is: Equal Protection does not require a carve-out for transgender students in women’s sports. I can discuss that later.
But I like the Spending Clause issue for now. I also don’t think I’ll get exactly what I want. But you can’t have everything.
Note:
- Transcripts to the oral arguments are here: here.
- Google’s summary of “Spending Clause”:
The Spending Clause, found in Article I, Section 8, Clause 1 of the U.S. Constitution, grants Congress the power to levy taxes, duties, imposts, and excises to pay debts, provide for common defense, and promote the general welfare, serving as the foundation for federal taxing and spending authority. This clause allows Congress to attach conditions to federal funds, influencing state policy (e.g., setting drinking ages) as long as conditions are clear, related to the program, and not coercive, as defined by Supreme Court cases like South Dakota v. Dole.
If any of the lawyers challenging the bans coherently explained how to square the circle of alleged trans discrimination of the sports ban and Title IX sex discrimination then I missed it.
I read it as Title IX funds could legally be withheld if a state allowed men’s bodies in women’s sports, as the laws were written. The challengers kind of created a legal paradox here and basically are trying to go with “sex and gender means what we want when we want”. Or something. I couldn’t figure it out.
Withholding Title IX funding would be in effect a legal mandate.
The activists want to redefine the very definition of man and woman and I don’t support that. If they can get the legislative support to rewrite Title IX and other laws then so be it.
lucia wrote: “That said, if the ruling is purely on the Spending Clause, this does a few things some people might not like:”
Those are almost all things that I, for one, would like. The exception is:
“Allows states like California to pass the law it likes on the transgender issue. After all, if what Title IX says about “sex” is unclear, Cali can’t have its funding yanked either.”
I suppose that would be true if the decision is only on the Spending Clause and if the ruling says the meaning of “sex” is unclear. But, of course, the original meaning of “sex” is perfectly clear and would not let boys play on girls teams.
But it is not at all clear that a Spending Clause based ruling on this case would have the knock-on effects that you list. At least not if such a ruling left South Dakota v Dole unchanged.
Tom,
To some extent I agree. Some confusing things spring from the fact that lawyers don’t want to foreclose any arguments they might otherwise win. So some are like, “Well… maybe it does mean biological sex. But that still doesn’t block our student because that still violates “equal protection”. Because the only reason we block men from women’s sports is their advantage.. so if we take it away… then the rfeason goes away.. (We can disagree whether it does– but that’s an argument.
But in terms of the “Spending Clause” bill, it’s really difficult to say it clearly can’t have meant biological. (In reality, it almost certainly did. And
(a) if there is any doubt, then WVa should win under the spending clause. Because then it’s “unclear”.
(b) if it means biological sex, WVa should win unless sex having that meaning and enforcing that meaning is unconstitutional for some other reason.
It’s really difficult to insist that the term sex clearly means gender identity and meant that when Congress passed it. If the word clearly meant that in the 70s, it managed to escape everyones attention for decades. Clear meanings don’t take that long to discover.
A ruling based on the spending clause would mean that for those who want Transgender to be used in every state, they must get the legislature to pass a new statute that clearly states the definition as “transgender”.
However, it would also mean that trans-advocates could get what they want in states where the state legislature allowed transgender students to play women’s sports.
Mind you– the states that disallow XY-trans in women’s sports might even be able to disallow teams from visiting states having transgender students compete. So… for example: Idaho or WVa might e able to say: your XY-trans students can’t compete in when the meet takes place at University of ID or University of Wva. We can’t do anything about you letting them on your team or having them compete when they are in other states, but the can’t compete when the visit our state universities.
Tom,
Oh….
To be clear: One side says this. The other side says Title IX funds could be withheld if the state (i.e. WVa) does not allow XY-trans to play in women’s sport.
WVa ‘wins’ this case as long they are allowed to exclude XY-trans to play in women’s sports. And under the spending clause they win as long as “sex” even might mean “biological sex”. Because, under that theory, funds cannot be yanked if they apply WVa’s law– so win for WVa.
They still would not have resolved what the word means under Title IX. And obviously, some people want that issue resolved. But some want it resolved in one direction and some in the other.
Of course, WVa would also win if the word does mean biological sex.
CA tried to stop their state employees visiting other states that didn’t meet their morals standards. I think they had like 20+ states on their incrementing banned visitation list and invoked some crazy exception to allow sports teams to visit during away games. It became so convoluted that they eventually dropped the entire thing.
Yeah, the opposing read on Title IX is crazy IMO. Good luck getting that through. I don’t think the court spent much time seriously considering that argument.
They can alternately argue that Title IX isn’t really about this boutique trans in sports issue at all but about general sexual discrimination overall. The numbers are so small that withholding gargantuan funds on this issue would be inappropriate.
States can write rules on what being a “woman equivalent” in sports means, be subject to challenges and enforcing it in court, and states can also just ban it. That’s probably where it will end up.
Tom
Oh… but Gorsuch brought up the Spending Clause issue. And they discussed it several times … so did Sottomoyor. And this cuts to the argument about “what does sex mean”. It might not be as obvious this is related to the pro-trans discussion of “what does sex mean” .. because they are discussing whether the Spending Clause is still “alive” legally in this specific case. (Gorsuch says, yeah. And Sottomayor: yeah. And none of the judges said, “Hey. wait a minute, no….”)
But the Spending Clause is a big problem for the pro-trans legal team.
Tom,
Saying “xy-trans can’t compete in our state” is much less convoluted. Their team can come. They can compete– except specific people.
And of course, state employees can come to conferences, or trips to buy stuff or… whatever. Much easier to implement.
Tom,
.
If SCOTUS rulse based on Spending Clause, it will end up there. At least for a while –though I predict for seeable future. Because Congress will find themselves unable to write a specific clarification to what sex means. The ones who want to “clarify” in includes trans gender will be at great risk of being voted out of office, and the ones who want to clarify in the other way may be also!
“They can compete– except specific people.” More specifically, certain persons can’t compete in the women’s events. I don’t think there’s any objection to XY-trans competing in the men’s events, which should perhaps be called “open”.
Winning a championship as a trans will be tainted. The states that allow it will get sued and that will eventually be before the court. What is a woman equivalent? One measurement is they cannot win a disproportionate number of events. Back to disparate outcomes!
HaroldW
Yes. But a person on U California’s women’s team does not simultaneously run on the men’s team. But yes, Idaho and W.Va would word their ban to only say XY can’t run on the women’s team. Though, I think they actually word it by “gender assigned at birth.”
I’d rather they did “XY” or “gametes”. But birth certificates are much easier in k-12.
Tom Scharf,
Well…. if xy-trans – to women win too much, that’s evidence to decree the medical procedures used supposedly eliminate the xy advantage aren’t doing so. And now the argument becomes “the science”.
There was a question about whether transwomen win disproportionately relative to their numbers. I don’t remember if it was in the ID case or the WVa one.
“Title IX is a federal law that prohibits sex discrimination in educational programs and activities receiving federal funding.”
Properly carried through there would or should be only an open category of sport.
And no seperate changing rooms..
.
Lucia I do not understand if you want trans sports competitors allowed or not.
It is clear that open competition is not fair.
It is also true that men could and should be allowed to play sports together if and only if all people on the opposite sides in Toto agree that it is OK I.e informed consent of all the people participating in whatever the contest is.
–
Re reducing execucutive overreach on statutes it is a great but unrealistic objective.
All administrations strive for as much power as they can get.
If blocked by an interpretation they will get cleverl lawyers to get around it, bully it through or change the legislation. In one sense it is a necessary and expected executive function to find a way to get things done
Biden poised the Justice Department and CIA FBI in thi way to get Trump (JF)
Trump uses it by executive order fief.
Whoever is in with enough control us City Hall and virtually always wins.
I
As a reults on Angech’s comment, I looked up Title IX.
https://www.law.cornell.edu/uscode/text/20/1681
It says nothing whatsoever about sports. The application of Title IX to sports is entirely a result of administrative rules. Huh. And those rules would seem to be based on disparate impact. So this might not be as simple as it ought to be.
IIRC the initial application of Title IX to sports was related to men’s sports getting a lot more money than women’s sports. Men’s sports generated a lot more income though (college football by itself funds the entire athletic department in some cases) so the picture is complicated.
The Big Ten TV contract provides about $75M annually per school and this is almost entirely about men’s football and to a lesser extent men’s basketball.
I think I understand Lucia’s desire to rule based on the Spending Clause but I’m in the originalist camp and would prefer a ruling on the strict language of the legislation as it exists.
Title IX as it exists now should be interpreted in the plain English as it was understood when it was passed. “Men”, “women”, “boys”, and “girls” were well understood when Title IX was drafted and passed and I hate the semantic games trying to change the meaning of words.
I want to put a stop to the linguistic shenanigans that have been pushed through the courts over the last 30 or 40 years. Then again, as ridiculous as I thought it was to ask KBJ to define what a woman was in her hearings before Congress, her apparent INability to do so was worse. Yes, it’s not binary on the fringes but that’s just a reminder that life isn’t completely stochastic and there are fringes but they are fringes.
Activists have been playing this word game in court like the Red Queen for decades specifically because they would lose in the court of public opinion every time if they were honest about their goals and objectives.
Derek H: “ ‘Men’, ‘women’, ‘boys’, and ‘girls’ were well understood when Title IX was drafted and passed”.
But I don’t think any of those words appear in Title IX.
The statute is here
https://www.law.cornell.edu/uscode/text/20/1681
It starts
And continues.
My word search finds Men and Women here.
The words boys and girls does appear above and also below:
So do Father, son, mother, daughter.
When this was passed, I’d say it is almost certain they meant “biological” or “assigned at birth”. But if they meant “gender identity”, they should have said so explicitly. If they meant “gender identity”, their meaning was certainly not clear. (If it’s not clear, then you can’t yank funds for violating that part because to yank funds, the wording needs to be clear. )
I think one perverse argument goes something like this. Teams segregated by sex discriminate on the basis of sex. So they are not allowed. But it is not prohibited to have teams segregated by gender identity. So a girls team has to allow boys provided that they identify as girls. Otherwise, you are discriminating on the basis of sex!
Our legal system seems perfectly capable of accepting such nonsense.
Mike,
It’s impressive how many fallacies you crammed into that construction. I’m not sure I could have done that myself without segfaulting my mind in the trying. I’m a little awestruck.
Mike M,
“Our legal system seems perfectly capable of accepting such nonsense.”
I’d say it is our political system, as the nomination and confirmation of Justice Jackson proves.
SteveF,
It is not just Justice Jackson and her ilk.
A funeral home that had a dress code for employees fired a male employee for dressing as a woman:
https://en.wikipedia.org/wiki/R.G._%26_G.R._Harris_Funeral_Homes_Inc._v._Equal_Employment_Opportunity_Commission
The case was consolidated with a couple others and heard by SCOTUS in 2020 as Bostock v. Clayton County,
https://en.wikipedia.org/wiki/Bostock_v._Clayton_County
The funeral home lost 6-3. Since a woman would not have been fired for dressing as a woman, it is sex discrimination to fire a man for dressing like a woman. That is the first key step to the inane argument I presented above.
Justice Gorsuch wrote for the majority:
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
Biden relied on that nonsense to justify his executive actions on trans rights.
Mike —
Yeah, Bostock is another decision where I think the Court got it completely wrong and don’t understand what the conservatives who voted with the majority were thinking. Gorsuch’s rationalization in Bostock is ridiculous and certainly doesn’t fit with originalist or textualist thinking as I understand them.