EPPC Scholars and Others Submit Comments Opposing ED’s Proposed Gender Identity Mandate in Athletics

May 15, 2023

On May 15, 2023, EPPC scholars Rachel N. Morrison, Mary Rice Hasson, and Eric Kniffin submitted a public comment opposing the Department of Education’s Notice of Proposed Rulemaking (NPRM) that would establish a new regulatory standard for athletic participation under Title IX. Title IX—the landmark federal civil rights law that prohibits sex discrimination in education—has been lauded for its vital role in advancing athletics opportunities for girls and women over the last fifty years. Yet ED’s proposal would mandate student participation in sex-specific athletics teams on the basis of “gender identity” at federally funded educational institutions.

The EPPC scholars argued in their comment:

ED proposes this Athletics NPRM, whose vague terms and draconian threats will have the predictable effect of putting schools subject to Title IX on their heels. Schools will understandably want to avoid DOJ enforcement actions and will roll over, abandon common sense, and adopt new policies that would allow males in practically every circumstance to participate on and compete against female sports teams. ED’s proposed regulatory standard would thus deny females the equal opportunities in athletics they have enjoyed for 50 years, turning Title IX’s long-standing protections from sex discrimination on their heads. It will have devastating impacts for girls’ and women’s sports. As proposed, the rule is arbitrary and capricious, exceeds statutory authority, and is contrary to law. The rationale for the proposed changes is unsupported by substantial evidence and selectively embraces and ignores case law to advance the Departments’ radical policy agenda. ED claims its proposal will provide clarity, yet it is unworkable and will cause confusion. The proposed regulatory standard contradicts long-standing scientific understandings of the human person and places ideology ahead of sound policy. It turns the clock back on girls’ and women’s rights, harms children’s interests, and ignores religious freedom of educational institutions and students.

The scholars urged the Department to withdraw and abandon the Athletics NPRM.

A diverse group of educational, family, religious, legal, and policy organizations also submitted comments opposing the Athletics NPRM.

About the EPPC comment signers:

Rachel N. Morrison, J.D., is an EPPC Fellow, director of EPPC’s HHS Accountability Project, and former attorney at the Equal Employment Opportunity Commission.

Mary Hasson, J.D., is the EPPC Kate O’Beirne Senior Fellow, an attorney, and co-founder of EPPC’s Person and Identity Project, an initiative that equips parents and faith-based institutions to counter gender ideology and promote the truth of the human person. 

Eric Kniffin, J.D., is an EPPC Fellow, member of the HHS Accountability Project, and a former attorney in the U.S. Department of Justice’s Civil Rights Division.

Other organizations submitting comments on the proposed rule include:

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