Title IX, the law protecting girls and women in education from discrimination, passed in 1972, has become a political hot potato ever since Barack Obama unilaterally reinterpreted the legislation to include “gender identity.” By doing so, Obama forced all public schools in the country to recognize a student’s gender identity as their sex for the enforcement of Title IX and allow them to use bathrooms and locker rooms according to their “gender identity,” as well as play on the sports team of their choice. If schools refused, they would be refused federal aid under the law.
Donald Trump revoked the Obama reinterpretation, which was unconstitutional, but Obama had opened Pandora’s box, and once Biden took office, he immediately sought to revert to the Obama-era change, as well as target Republican-led states have passed legislation to protect girls’ sports and private single-sex spaces like bathrooms and locker rooms.
This week, the Biden administration released its proposed rules changes to Title IX, which are confusing and problematic.
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“The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are,” the White House explained in a press release. “The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation. The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.”
The recent rule change seems to be presented as a compromise on the issue by giving the impression that schools have some flexibility, but make no mistake, it’s a mirage.
“The Biden Administration is trying to have their cake and eat it too: inject gender identity into athletics while placing the onus upon school districts to determine whether doing so would be problematic or not,” Nicole Neily, president of Parents Defending Education, a parental rights advocacy group, said in a statement. “Without a doubt, institutions are going to err on the side of ‘inclusion,’ because they fear the wrath of the Education Department – thus, achieving the Department’s end goal while allowing them to maintain plausible deniability that they coerced districts into doing so.”
Biden’s recent proposal cannot be considered a compromise, and the reality is that changing Title IX through rule changes is unconstitutional. Title IX solely pertains to biological sex, and the legislators who introduced the law did not even acknowledge the existence of “gender identity” or “gender expression” or any recently created terms.
Nonetheless, as clear as Title IX is, the only way to end this back and forth is via legislation. Obama’s actions in 2016 set off the pendulum; Title IX’s interpretation and enforcement will repeatedly change depending on which party controls the executive branch, which means that Republicans must act quickly to codify protections for girls and women the next opportunity they have.
