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A Vermont high school was expelled from the athletic association they were in, and cannot participate in any future sports, over said school's decision to forfeit a girl's basketball game against a team with a boy on the roster.
Coverage of the original incident:
Mid Vermont Christian School girls basketball refused to play Long Trail because of transgender player, forfeits playoff game
The latest:
Mid Vermont Christian School ousted from sports over transgender discrimination; Mid-Vermont Christian deemed ineligible by VPA; Mid Vermont Christian School ousted from Vermont Principals Association-sanctioned activities
A local letter to the editor called for a similar outcome last week.
The school is a Christian school, which I'm sure played a large role in all of this. For my part, I'm left wondering what Title IX was supposed to be for, in light of the Bostock decision and Gorsuch's but-for. If you are a boy, and claim to be a girl, and someone treats you as if you were a boy, then but-for your sex, you would expect to be treated as a girl, and therefore anyone treating you as a boy is discriminating on the basis of sex. Yet Title IX explicitly requires discrimination on the basis of sex, since it requires in practice equal numbers of athletic spots available for each sex.
The particular method of exclusion, through the state athletic association, seems like it would make a good target for a lawsuit under Title IX. The prescreens of a boy on the girl's team denies that spot to a girl (on the basis of sex), yet under Bostock that can't be the case.
How can you square this circle? How can you both require separate (discriminatory) athletic spots based on sex, while simultaneously requiring self-ID onto sex segregated teams?
There's another supreme court case currently being held regarding a high school football coach who was fired for praying on the field after games. I mention it because it gets at the religious aspect, rather than the sex aspect.
I found two particular parts interesting, aside from the question above. First, the boys defended the honor of their classmates:
And second, it's these boys who will also suffer for the girl's basketball coach's decision to forfeit, and for their Head of School's decision to comment. Their entire school, and all of their sports teams, are now without opponents against which to compete.
Title IX is just one avenue to pursue. This looks like a very likely 1st Amendment violation under a myriad of precedents.
What sort of precedents?
Christianity doesn't exactly address the question of playing sports between the sexes. That makes it a poor fit for freedom-of-religion. It's not establishing one religion over another, either. I'd assume it fails to harm any particular religion, and that there are secular sports teams making similar protests.
Freedom of association is also implicated. But I was particularly thinking of the line of cases that include:
Pierce v. Society of Sisters of the Holy Names, Trinity Lutheran Church of Columbia, Inc. v. Comer, and Espinoza v. Montana Department of Revenue
This is actually a very non-constitutional way of looking at it. You might not think Christianity addresses it, some Christian sects might not think it does, but the courts are not supposed to try to be priests/rabbis/etc by proxy and determine what a religion actually believes.
Some people might disagree with this categorization of transgender ideology. It is probably a loser in court, but just saying sincere religious belief + discrimination by the state entity probably wins under Comer.
There is no general constitutional right to freedom of association. "There are two distinct forms of freedom of association: (1) freedom of intimate association, protected under the Substantive Due Process Clause of the Fourteenth Amendment; and (2) freedom of expressive association, protected under the Freedom of Speech Clause of the First Amendment." Erotic Serv. Provider Legal Educ. & Rsch. Project v. Gascon, 880 F.3d 450, 458 (9th Cir. 2018). The freedom of intimate association relates to the right to form and maintain "'relationships . . . that attend the creation and sustenance of a family' and similar `highly personal relationships.'" Ibid. The right to expressive association is the right of people to associate together for the purposes of expression. NAACP v. Alabama, 357 U.S. 449 (1958).
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I have no reason to doubt this school had a sincere religious belief that Trans Bad. What's the reasoning to get from there to a forfeit? If the religious belief is "trans women are men," then Long Trail was violating the rules, violating rules undermines the tournament, undermining the tournament demands a boycott.
My original thought was that the chain doesn't depend on religious character. A secular school could have made the same argument. If they'd also get slapped for it, then there's no discrimination for Trinity v. Comer, right? On further inspection, though, I can see the problems with my reasoning. The religious character of, say, abstaining from alcohol is not diminished if an atheist chooses the same. And as you observe, it's not the job of the courts to figure this out. Ex. Presbyterians v. other Presbyterians.
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They seem to be the organisation responsible for co-ordinating all schools athletics competitions at the state level, so probably they're important.
However, we see the tension between the principles stated in their High School Policies in action right in this case:
So the VPA wants to promote respect for gender differences and religious differences, but when push came to shove, we see that the gender differences won out over the religious differences. To be fair, they may be constrained by regulations, as per the Act below:
So if the VPA recognised the right of Mid Vermont Christian School not to compete against teams with transgender athletes, they might be in breach of the Public Accommodations Act. This is one for the courts to figure out - is refusing to play the transgender team "discrimination and/or harassment"? What if it rises out of religious beliefs? Are those protected as well, in which case which is the more protected right?
Re religion, many anti-discrimination laws have exemptions for religious organizations re religious activities, etc. Not sure about VT. More generally, since anti-discrimination laws are general laws that apply broadly, religious freedom would not be violated, under current Supreme Court precedent. Many states have "religious freedom restoration acts" which say that general laws that affect religious practices can be enforced against those who engage in those practices only if necessary for a compelling state interest, but VT is apparently not one of those states.
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