7 Bostock, 590 U.S. at 681 (of “other federal or state laws prohibit[ing] sex discrimination” and “sex-segregated bathrooms, locker rooms, and dress codes[,]” noting that “none of these other laws are before us;” “we do not purport to ...

... Congress established that “nothing contained [in Title IX] shall be construed to prohibit any educational institution … from maintaining separate living facilities for the different sexes.” Nonetheless ...

Nonetheless, the Appellants continue to maintain through the New Rule that it is no violation of Title IX for federal funding recipients to maintain in the future separate bathrooms defined by gender identity.

More specifically, “textualism isn’t a mechanical exercise, but rather one involving a sophisticated understanding of language as it’s actually used in context.” Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 CASE W. RES.

And there is no doubt that “the import of language depends upon its context, which includes the occasion for, and hence the evident purpose of, its utterance.” See Antonin Scalia, Response, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 144 (Amy Gutmann ed., 1997).

A few months later, the Committee heard testimony from the Chairman of the National Organization for Women, Wilma Scott Heide, who carefully noted that “[t]o demand to be equal to men under the law is not to state or imply sameness of biology.” The “Equal Rights” Amendment: Hearings Before the Sub-comm.

In 1971, the House Judiciary Committee issued a report endorsing a softening amendment to the ERA proposed by Representative Wiggins of California that would have exempted any discriminatory law that “reasonably promotes the health and safety of the people.” H.R.

Nor would there be anything impermissible about “a separation of the sexes with respect to such places as public toilets, as well as sleeping quarters of public institutions.” Id. Appellate Case: 24-3097 Document: 215 Date Filed: 10/16/2024 Page: 32 Appellate Case: 24-3097 Document: 230 Date Filed: 10/16/2024 Page: 32 The legislative debates over Title IX and the ERA reveal, crucially, not only that Congress viewed “sex” as defined in terms of the different biological traits of men and women, but also that Congress’s understanding of sex as being biological was the very reason Congress sought to eliminate it as a permissible basis of discrimination.

ENTRY OF APPEARANCE (10th Cir. R. 46.1(A)) In accordance with Tenth Circuit Rule 46.1, the undersigned attorney(s) hereby appear(s) as counsel for: Billy Burleigh, KathyGrace Duncan, Laura Perry Smalts, Jane Smith, and the Manhattan Institute

Appellate Case: 24-3097 Document: 201 Date Filed: 10/16/2024 Page: 2 Appellate Case: 24-3097 Document: 203 Date Filed: 10/16/2024 Page: 2 CERTIFICATE OF INTERESTED PARTIES (10th Cir. R. 46.1(D)) Pursuant to Tenth Circuit Rule 46.1(D), the undersigned certifies2 as follows:

The following (attach additional pages if necessary) individuals and/or entities are not direct parties in this appeal but do have an interest in or relationship to the litigation and/or the outcome of the litigation.

Signature 2 Pursuant to Tenth Circuit Rule 46.1(D)(6), this certificate must be promptly updated if the required information changes.

Appellate Case: 24-3097 Document: 201 Date Filed: 10/16/2024 Page: 3 Appellate Case: 24-3097 Document: 203 Date Filed: 10/16/2024 Page: 3

E-Mail Address 1 Counsel must list each party represented.

Appellate Case: 24-3097 Document: 253 Date Filed: 10/16/2024 Page: 2 Appellate Case: 24-3097 Document: 256 Date Filed: 10/16/2024 Page: 2 CERTIFICATE OF INTERESTED PARTIES (10th Cir. R. 46.1(D)) Pursuant to Tenth Circuit Rule 46.1(D), the undersigned certifies2 as follows:

The following (attach additional pages if necessary) individuals and/or entities are not direct parties in this appeal but do have an interest in or relationship to the litigation and/or the outcome of the litigation.

Signature 2 Pursuant to Tenth Circuit Rule 46.1(D)(6), this certificate must be promptly updated if the required information changes.

Appellate Case: 24-3097 Document: 253 Date Filed: 10/16/2024 Page: 3 Appellate Case: 24-3097 Document: 256 Date Filed: 10/16/2024 Page: 3

At SAU, women compete in these female sports programs: Basketball, Bowling, Cross Country, Golf, Soccer, Softball, Tennis, Track & Field, and Volleyball.

In this Brandeis-style Amicus Curiae brief, President Ellis presents the conclusions the NAIA task force reached to assist this Court in understanding the jurisprudential differences underlying the parties’ positions in our divided culture.

The NAIA’s study demonstrated the relevance of biological sex to “supporting the fair and safe competition opportunities for all student athletes.” The task force study found each NAIA male and female sport “includes some combination of strength, speed, and stamina, providing competitive advantages for male student athletes.” As to whether NAIA policy should permit men to compete against women in female sports, each of these elements rationally relate to – and are necessary for – creating a fair playing field, ensuring safety for competing athletes, and Appellate Case: 24-3097 Document: 217 Date Filed: 10/16/2024 Page: 9 Appellate Case: 24-3097 Document: 232 Date Filed: 10/16/2024 Page: 9 precluding male athletes from unfairly taking scholarship positions of female athletes.

Medical experts in Europe now recognize that the “use of masculinizing / feminizing hormones … present many unknowns Appellate Case: 24-3097 Document: 217 Date Filed: 10/16/2024 Page: 15 Appellate Case: 24-3097 Document: 232 Date Filed: 10/16/2024 Page: 15 ….” Hillary Cass, M.D., Independent review of gender identity services for children and young people (2024), https://cass.independent- review.uk/wp-content/uploads/2024/04/CassReview_Final.pdf (last viewed Oct. 15, 2024) (results of a four-year review commissioned by the United Kingdom’s National Health Service).

Moreover, elevating self-identifying subjective gender fluidity over the objective biological truth that sex is immutable results in the unfair and unjust outcomes for female athletes that the appellees in this case have articulated in their complaint.

7 None has ever been approved by the FDA for this purpose and the long-term risks remain unknown.

Do not use “et al.” or generic terms such as “Plaintiffs.” Attach additional pages if necessary.

State of Kansas, et al. United States Department of Education, et al. Amici Curiae States of Mississippi, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, and West Virginia in support of Plaintiffs-Appellees Scott G. Stewart s/ Scott G. Stewart P.O.

Appellate Case: 24-3097 Document: 192 Date Filed: 10/15/2024 Page: 2 CERTIFICATE OF INTERESTED PARTIES (10th Cir. R. 46.1(D)) Pursuant to Tenth Circuit Rule 46.1(D), the undersigned certifies2 as follows:

The following (attach additional pages if necessary) individuals and/or entities are not direct parties in this appeal but do have an interest in or relationship to the litigation and/or the outcome of the litigation.

Signature 2 Pursuant to Tenth Circuit Rule 46.1(D)(6), this certificate must be promptly updated if the required information changes.

A spending-power law thus must “furnish[ ] clear Appellate Case: 24-3097 Document: 194 Date Filed: 10/15/2024 Page: 8 notice” of what it requires, because recipients “cannot knowingly accept conditions of which they are unaware or which they are unable to ascertain.” Arlington Central School District Board of Education v. Murphy, 548 U.S. 291, 296 (2006) (internal quotation marks omitted).

It would empower the Department of Education to require schools to force boys and girls to share bathrooms, locker rooms, and other intimate spaces with those of Appellate Case: 24-3097 Document: 194 Date Filed: 10/15/2024 Page: 11 the opposite sex.

And, because Title IX’s nondiscrimination prohibition now applies in federally funded healthcare programs, it would allow agency officials with no medical training to dictate to doctors when and how they can rely on sex-based distinctions when caring for patients.

“Separate places to disrobe, sleep, [and] perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” Ruth Bader Ginsburg, The Fear of the Equal Rights Amendment, Wash. Post (Apr. 7, 1975).

This success owes to Title IX’s recognition that, due to “inherent differences” and “physiological advantages” between males and females, Adams, 57 F.4th at 819 (Lagoa, J., concurring), structuring sports based on biological sex is essential for equal opportunity, competitive integrity, and physical safety.

In accordance with Tenth Circuit Rule 46.1, the undersigned attorney(s) hereby appear(s) as counsel for: Dr. Stephen Cranney

Appellate Case: 24-3097 Document: 193 Date Filed: 10/15/2024 Page: 2 CERTIFICATE OF INTERESTED PARTIES (10th Cir. R. 46.1(D)) Pursuant to Tenth Circuit Rule 46.1(D), the undersigned certifies2 as follows:

The following (attach additional pages if necessary) individuals and/or entities are not direct parties in this appeal but do have an interest in or relationship to the litigation and/or the outcome of the litigation.

Signature 2 Pursuant to Tenth Circuit Rule 46.1(D)(6), this certificate must be promptly updated if the required information changes.

Appellate Case: 24-3097 Document: 193 Date Filed: 10/15/2024 Page: 3