EPPC Scholars Submit Comment Opposing Proposed Title IX Rule

Published September 12, 2022


On September 12, EPPC Fellow Rachel N. Morrison and Kate O’Beirne Senior Fellow Mary Rice Hasson submitted a public comment opposing a proposed rule by the U.S. Department of Education that would alter and expand the scope sex discrimination in Title IX regulations. (You can read Rachel’s summary of the proposed rule here.) 

The Proposed Rule would define discrimination on the basis of sex in education to include (“at a minimum”) discrimination on the basis of: sexual orientation, gender identity, sex stereotypes, sex characteristics, and pregnancy or related conditions. 

As the scholars summarize: 

The Proposed Rule radically rewrites Title IX of the Education Amendments of 1972, landmark federal civil rights law that prohibits sex discrimination in education. As proposed, the rule is arbitrary and capricious, exceeds statutory authority, and is unlawful and unconstitutional. The rationale for the proposed changes is unsupported by substantial evidence. The Proposed Rule 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, tramples parental rights, harms children’s interests, and ignores religious freedom and free speech of students, employees, and religious educational institutions. We urge the Department to withdraw and abandon the Proposed Rule.

Regarding the addition of “gender identity,” the comment explains:  

It’s not clear precisely what “gender identity” is (and ED fails to define the term), but it’s clear what it isn’t: “gender identity” is not the same as “biological sex.” In fact, the only thing that is certain when a person declares a “transgender,” “queer,” or “nonbinary” “gender identity” (or any of the terms listed in the Proposed Rule, 74 is that the person is rejecting a sex-based identity, determined by natal or biological sex. Consequently, redefining “sex” (a biological reality) to include “gender identity” (a contradictory self-perception) does violence to the express intent of Title IX and, as discussed below, jeopardizes the rights of the very people—females—it was designed to protect.


Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs 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.

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