The Department of Education just released its long-delayed Title IX rule—a rewrite of the 50 year-old civil rights law so vast that it promises to turn Title IX’s guarantee of sex equality in education completely upside down.
Title IX of the Education Amendments Act of 1972 is all of a single sentence. It simply bars sex discrimination in any federally funded education program. It does not matter how much federal funding a school or institution of higher education receives. And it does not matter whether such funding from the federal government is direct or indirect. So yes, even the vast majority of private schools must comply with the rule.
But this simple longstanding prohibition on sex discrimination has been manipulated by the Biden administration to both undermine constitutional freedoms—like the freedom of speech—and erase the very women that Title IX was enacted to protect.
The Department of Education has unilaterally expanded the prohibition against discrimination based on “sex” to include a prohibition against discrimination based on: “sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”
Under the Biden administration’s sweeping new Title IX rule, any K–12 school or institution of higher education that receives any federal funding would have to open girls’ bathrooms, locker rooms, housing accommodations, sports teams, and any other sex-separated educational program or offering to biological boys who claim to “identify” as girls. Similarly, boys’ facilities would have to be accessible to biological girls who “identify” as boys.
And the law’s decimation of equality doesn’t stop there. The regulations also eliminate due process protections for students accused of sexual misconduct (like the right to call witnesses, introduce evidence, or be represented by counsel during an investigation), and violates the First Amendment to the Constitution by forcing teachers and fellow students to use of a student’s “preferred pronouns.”
The regulations also require K-12 schools to accept a child’s gender identity regardless of biological sex without providing any notice to, much less seeking the approval of, the child’s parents.
And while the Education Department has punted, at least for the moment, on its second Title IX rule—one that applies only to athletics—the Biden administration’s representation that sports are not included in today’s rule is a complete head fake. By expanding the definition of “sex” to include “gender identity” and applying the rule to all “extracurricular activities,” male and female athletic teams will be a thing of the past. Indeed, the word “athletics” appears in the new rule at least 31 times.
Furthermore, the Department of Education’s reading of Title IX lacks any support in the text of the title, its implementing regulations, and the law’s congressional history.
Congress had a chance in 1987 to amend the Title IX “sex” definition to include “gender identity,” when it amended Title IX under the Civil Rights Restoration Act. But it did not.
Executive agencies are empowered only to promulgate “rules” or “regulations” that implement or interpret laws passed by Congress—not to create completely new laws.
Apparently, the Department of Education has forgotten that.
Now the question isn’t if legal challenges will follow, but how fast they’ll come.
The Independent Women’s Law Center has already indicated it is readying a lawsuit against the Department of Education. Others are likely to follow. Let’s hope so.
