Published August 9, 2022
Controversy continues to surround the participation of transgender-identifying athletes in women’s sports. This issue garnered national attention earlier this year with Lia Thomas’ collegiate swimming success.
Thomas, a biological male who identifies as transgender, competed for the University of Pennsylvania women’s swim team in compliance with the NCAA transgender student-athlete participation policy. Thomas smashed women’s swim records, won the Division I national title in the 500-yard freestyle, and most recently was nominated by the Ivy League university for the NCAA “Woman of the Year” award. (Another athlete ultimately received the award.)
In its press release on the nominations, the NCAA stated, “As 2022 marks the 50th anniversary of Title IX, the NCAA Woman of the Year program is an important opportunity to honor and reflect on the impact of women on intercollegiate sports.”
Historically, women had few athletic opportunities in school. That all changed when Congress passed Title IX in 1972. The law prohibits sex discrimination in federally funded education programs or activities, including athletics. Title IX is widely lauded for championing women’s sports, and since its implementation, participation by girls and women in athletics have increased more than tenfold.
But that is all about to change.
On the 50th anniversary of Title IX in June, the Department of Education released new proposed regulations on the landmark statute (formally open for public comment a few weeks later). After wading through the 700-plus-page document, here is what I discovered.
Under the proposed regulations, discrimination “on the basis of sex” would be expanded to include discrimination on the basis of gender identity (among other things). The proposal explains, “preventing any person from participating in an education program or activity consistent with their gender identity would subject them to more than de minimis harm on the basis of sex and therefore be prohibited.” Since school sports are considered “an education program or activity,” the regulations seem to require that sports participation be based on gender identity.
The Education Department, however, appears to punt on the sports issue, promising to issue separate proposed regulations to address “whether and how” to amend the current regulations on sex-specific athletics and “the question of what criteria, if any, recipients should be permitted to use to establish students’ eligibility to participate on a particular male or female athletics team.”
The Department further explains that it does not propose (at this time) to change current Title IX regulations, under which schools may “operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
That is a win for girls’ and women’s sports, right? Wrong.
Just last year, the Biden Department of Justice issued a statement of interest in a federal court case about a state law ensuring only biological females can participate in girls’ and women’s sports. DOJ claimed that the law violates Title IX. It argued that Title IX regulations do not “address how students who are transgender should be assigned to such teams” and do not “require, or even suggest” that schools assign students who identify as transgender to teams based on their biological sex. “[A]ny interpretation of Title IX’s regulations that requires gender identity discrimination would violate the statute’s nondiscrimination mandate,” the statement declares.
It doesn’t get much clearer than that. DOJ’s statement exposes the Biden administration’s true legal position: Title IX and current regulations require participation in sex-specific sports based on gender identity.
Nowhere do the proposed regulations explicitly state that participation in sex-specific sports must (or may) be based on biological sex. Indeed, there is no indication that schools can choose not to take gender identity into consideration.
This is a fake punt by the Department of Education. The Biden administration has already telegraphed in court its legal and policy position: Title IX requires that female athletes submit to biological males who identify as female. Just as with Thomas’ participation on the UPenn women’s team, women will be required to give up their spots on teams, in competitions, at championships, and on the podium. Biological men will continue to receive women’s honors and awards.
Anything short of an explicit statement that athletes’ gender identity does not apply to sex-specific school sports would be patently unfair to female athletes and antithetical to the 50-year legacy of Title IX. The Education Department’s failure to state its position outright and take the political backlash is cowardly.
The proposed Title IX regulations would formalize the Biden administration’s extreme gender ideology, turn back the clock on women’s rights, and erase women’s educational and athletic opportunities.
Do not fall for the fake.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.