Facing federal defunding, schools claim courts require them to let males play on female teams

The Trump administration's ongoing threats to yank funding from school districts and colleges that govern athletic eligibility by gender identity – so that males who identify as girls can play on girls' teams, use their restrooms and locker rooms and share their overnight accommodations – may soon reach a head as targeted schools run to court to protect their funding.

Five days after the California State University system sued the Department of Education for finding San Jose State University violated Title IX by letting male volleyball player Blaire Fleming compete on the women's team and share intimate spaces with females, Secretary Linda McMahon dared SJSU to call her bluff.

"Protecting women’s sports is nonnegotiable," McMahon wrote on X, giving SJSU 10 days to accept the feds' resolution conditions or lose funding. 

She posted the first page of a March 11 letter from the department's Office for Civil Rights – not posted on OCR's website – that cites SJSU President Cynthia Teniente-Matson's public statement that SJSU "cannot and will not" accept the feds' conditions. This "impasse" triggers the 10-day countdown for a resolution before SJSU loses federal money.

McMahon's missive sparked cheers from sex-based rights activists including former Olympian and XX-XY Athletics founder Jennifer Sey and recommendations from other commenters on school districts the feds should target for allowing males in female intimate spaces.

OCR determined Friday that suburban Denver's Jefferson County Public Schools violated Title IX by letting a staggering number of males participate in girls' sports and share intimate spaces and sleeping arrangements with females. The original basis for the investigation was allegedly shared sleeping arrangements.

Athletic rosters turned over by Colorado's second-largest school district show that "male students may occupy up to 61 roster positions on girls’ sports teams," OCR said. Jeffco, as the district is known, has 10 days to accept the feds' conditions or it too risks "imminent enforcement action." 

It must rescind or revise policies that allow males in "female intimate facilities," overnight accommodations and girls' sports, publicly comply with Title IX by using "biology-based definitions" of male and female and agree that "Title IX applies irrespective of state law or regulation and the policies of sports governing bodies."

Protect Kids Colorado got two ballot measures related to gender identity approved last week for the November ballot. Initiative 109 would ban "boys," defined as adolescent males, from playing on girls' teams, and Initiative 110 would prohibit surgeries to alter "biological sex characteristics" for gender-confused minors.

A woman who competed against SJSU's Fleming was told in a March 11 Arizona Senate Education Committee hearing that she could have handled the male player, who allegedly injured several competitors and conspired with another player to injure Fleming's critical teammate Brooke Slusser, had she simply been more competitive.

After former Utah State University volleyball player Kaylie Ray testified last week at Arizona Legislature hearing in favor of sports legislation that would require school teams to be designated male, female or coed, Democratic state Sen. Catherine Miranda went viral for analyzing Ray's body. 

"Growing up in sports, being a tomboy, I mean, you look pretty healthy," Miranda told Ray. "I've played against girls that look like you — you look very much in shape and strong, but it's a sports mentality when you're growing up and how much competition that you'll take on."

Letting males compete on women's teams is not a "silver bullet" for the former, "it's [up to] the individual person on how competitive you want to be," Miranda said. "So you grew up one way. I grew up a different way. I would have taken on a man in a heartbeat" and "welcomed" a man on her team.

Ray told Fox News she was "definitely caught off guard" by the lawmaker's comments, marveling that "my physical appearance or stature should have some type of effect on how competitive I am with men." She said teammates "seriously jammed their fingers" playing against Fleming, whose spikes she described as more dangerous than those of female players.

Mischaracterizes Supreme Court ruling limited to employment context

Both SJSU and Jeffco insist their actions are in line with binding legal precedents and they would get in trouble with courts for accepting the feds' resolution conditions.

University lawyer Bryan Heckenlively told OCR Regional Director Bradley Burke on March 6, apparently before CSU filed the same-day lawsuit, that OCR has identified no other instance of SJSU "rostering a transgender woman" on any "intercollegiate women's teams" except for Fleming from 2022-2024.

"Because of binding [9th U.S. Circuit Court of Appeals] authority and federal agency interpretations on point, SJSU lacked clear notice from 2022 to 2024 that permitting a transgender student to participate consistent with conference and NCAA eligibility rules would violate Title IX," Heckenlively wrote.

He rewrote OCR's proposed resolution, which uses the biological terms "male" and "female," with gender ideology language. It would require SJSU to stop "transgender women" from competing in "any women’s athletic program" and to publicly define sex by "OCR's preferred definition" and agree "there are only two sexes" and sex is "unchangeable."

It would require SJSU to give "cisgender women" – females who identify as women – awards they would have won if not competing against males, and issue a "personalized apology letter" to every woman who played on the team with Fleming or "forfeited a match against SJSU" and express "genuine regret and remorse” about Fleming's participation.

Heckenlively incorrectly described the Supreme Court's Bostock ruling on homosexual and transgender employees, which explicitly instructed lower courts not to extend the holding to bathrooms, locker rooms and dress codes or apply it beyond Title VII employment rights, as requiring SJSU to let males compete in women's teams under Title IX.

He said the 9th Circuit extended Bostock's reasoning to Title IX in 2023, but that case concerned sexual orientation, not gender identity. The appeals court made explicit in 2024 that it read Bostock to prohibit "blanket prohibitions" on males competing in female sports, so "SJSU was constitutionally prohibited from excluding" Fleming based on gender identity.

CSU's same-day lawsuit accuses the feds of "lawless overreach" for trying to punish SJSU for conduct "required by Ninth Circuit law and the federal government’s own guidance at the time," referring to the prior administration's Title IX guidance, which was never formalized into binding regulations.

In a statement given to Denver 7, the JeffCo school district said the feds faulted it for "provision of equitable access for all students" — allegedly letting dozens of males take female roster spots – and would also force it to violate Colorado law.

"The Department’s interpretation has no basis in the Title IX regulations and is not supported by any binding court decision," the district said, ignoring the Supreme Court's explicit refusal to add transgender status to the meaning of "sex" in the Civil Rights Act in upholding Tennessee's ban on medicalized gender transitions for minors.

JeffCo noted a federal judge last summer tossed a lawsuit against its policies that let males share overnight accommodations with females, without telling parents it defines "girl" and "boy" by gender identity. The parent-plaintiffs are appealing the ruling to the 10th Circuit, backed by 21 states and several public interest groups.

"Jeffco’s policies and practices align with the Colorado Anti-Discrimination Act, prior federal guidance on Title IX, and [Colorado High School Activities Association] policy," and the Colorado Civil Rights Commission has required districts to treat students by gender identity since 2013, the district said.

JeffCo's Title IX office didn't answer Just the News queries on how it provides "equitable access for all students" if 61 slots on girls' teams are taken by males, whose historically favored athletic teams were a driving force behind Title IX.