The White House’s Title IX Bait-and-Switch

Published May 20, 2024

Earlier this month, President Joe Biden, in a post on X, called on the nation to “support women’s sports.”

This tone-deaf post comes on the heels of the Department of Education’s final Title IX rule, which will destroy sex-based protections and athletic opportunities for girls and women.

Title IX—the 1972 civil rights law that prohibits sex discrimination in federally funded education programs and activities—was instrumental in advancing women’s equality and opportunities, especially in sports. Since the law’s passage, female participation in sports has increased significantly.

However, in recent years, an increasing number of male athletes who identify as female have been allowed to participate in women’s sports programs, often under the guise of sex or gender identity nondiscrimination. Male athletes dominating women’s sports and undressing in female locker rooms have garnered media attention, public backlash, and even Title IX lawsuits.

Against this backdrop, the department’s Title IX rule, published at the end of April, declares that sex discrimination includes discrimination on the basis of gender identity. The department is circumspect about how the rule applies to sports.

This ambiguity is nothing new. In its June 2022 proposed Title IX rule, the department appeared to punt on the sports issue, promising a separate rule would address sex-specific athletics. As I explained at the time, this was a “fake punt.” Under the proposed Title IX rule, discrimination on the basis of gender identity would be prohibited in any education program or activity, which necessarily includes athletics.

Making good on its promise, the department proposed a separate athletics rule in April 2023 that addressed what criteria could be used to establish students’ eligibility to participate on male or female sports teams. Under the proposed rule, which has not yet been finalized, schools could not categorically ban transgender-identifying students from participating on sex-specific teams consistent with their gender identity. They could, however, adopt “more targeted” participation criteria that is “substantially related to sport, level of competition, and grade or education level.”

In reality, such alternate criteria would be rare. Schools would be incentivized to allow participation based on gender identity for all sports to avoid making complicated criteria judgments for every single sports team and to eliminate the risk of punishment if the department disagreed with the school’s judgment.

The department explained in the new Title IX rule that until the athletics rule is finalized (likely after the election), the current athletics regulation will “continue to apply.” The current regulation permits schools to “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.”

The Title IX rule states that in the “limited circumstances” where Title IX allows “different treatment or separation on the basis of sex,” that treatment or separation is only allowed to the extent it does not subject a person to more than insignificant harm.

According to the department, such harm occurs when a school adopts a policy or engages in a practice that “prevents a person from participating in an education program or activity consistent with the person’s gender identity.” Under this standard, schools could not prevent male athletes who identify as female from participating on girls’ or women’s sports teams.

But the department added an exception: the rule’s gender identity mandate applies “except as permitted by” the current athletics regulation (and a few other statutory and regulatory provisions). Of course, it is quick to note that nothing in the rule prohibits a school from “voluntarily taking steps” to allow students to participate in sex-specific sports consistent with their gender identity.

Pointing to this exception, some have claimed that the new Title IX rule does not apply to athletics. Indeed, that is what the Education Department would like you to believe. Even the Biden administration knows that forcing schools to let males compete in girls’ and women’s sports is a political loser leading up to the election.

Don’t be fooled. The exception is a bait and switch.

Taking a closer look, anything permitted by the athletics regulation is exempt from the new rule’s gender identity mandate, but anything not permitted is not exempt. According to the Biden administration, the current athletics regulation permits having sex-specific sports teams; it does not permit excluding athletes from participating on teams consistent with their gender identity.

As the Biden Department of Justice told a federal court last year, the athletics regulation “does not dictate the athletic teams on which transgender students may participate” and is “silent as to which athletic teams transgender students may join.” It argued that “categorical bans” that exclude transgender-identifying students from participating on sex-specific athletic teams based on their gender identity violate Title IX’s sex discrimination prohibition.

In short, the Title IX rule allows sex-specific sports teams but requires participation on those teams to be based on gender identity, not biology.

This interpretation is further solidified by the Education Department’s refusal to define “sex” and its application of the rule’s gender identity mandate to locker rooms, athletic facilities, and P.E. classes.

If the administration truly wanted to exempt athletics from its Title IX rule, it could have done so explicitly. The fact that it did not is telling. Notably, the Justice Department has not withdrawn its legal position in court, and the Education Department did not walk back the administration’s legal position in the rule.

The administration wants all of the benefits (in its view) of allowing students to participate in sex-specific sports based on gender identity, without the political consequences of such a mandate.

Don’t fall for the false advertising and political cowardice of Biden’s Title IX rule.

If Biden really wanted to support women’s sports, he wouldn’t gut Title IX protections for female athletes.

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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