Conservatives have had plenty to celebrate recently: the end of Roe v. Wade, the reinforcement of the Second Amendment and the triumphs for the free exercise of religion, free speech and school choice. But not all is on the right track.
On its 50th anniversary, Title IX of the Education Amendments of 1972 — the pinnacle achievement of sex equality in education — took a massive hit. Even as the Supreme Court delivered landmark opinion upon landmark opinion, the U.S. Department of Education issued a new rule on Title IX redefining “women” and proposing to undo many of the law’s successes.
Once considered a feminist triumph, Title IX was enacted to prevent sex-based discrimination at any educational institution receiving federal funding. For hundreds of thousands of women, it has opened the door to graduate schools, scholastic sports, study programs and, ultimately, professional achievement.
The rate of female participation in high school athletics is now 10 times what it was in 1972. Women now constitute over 56% of America’s college students. And they hold nearly half of all tenure-track teaching positions.
But on the law’s golden anniversary, and in a twist of nearly Shakespearean tragedy, the Biden administration redefined womanhood in the very law passed for women’s advancement and protection. In its 701-page proposed Title IX regulation, the Department of Education has expanded the term “sex” — plain, unambiguous and understood by the 1972 ratifiers to mean biological distinctions between men and women — to include “sexual orientation and gender identity.”
Seeking to advance his pet policy agenda on transgender ideology, the president has in one swift move made a mockery of the women’s liberation movement and the achievements of women everywhere. While the media fixates on protests over a woman’s “right” to obtain an abortion, a woman’s right to equal protection in education is on the line.
By redefining “sex” to include “gender identity,” the administration has opened sex-segregated spaces like bathrooms, locker rooms, dorm rooms and single-sex admissions programs to anyone who identifies as a woman, regardless of that individual’s biology. But in what can only be seen as his recognition of the issue’s abysmal polling, President Biden has separated out the controversial trans-inclusive athletic issue.
The Education Department “plans to issue a separate notice of proposed rulemaking to address whether and how the Department should amend the Title IX regulations to address students’ eligibility to participate on a particular male or female athletics team,” it wrote.
The use of “whether” is illuminating. The department’s unwillingness to commit to a full-throated repudiation of men competing in women’s sports hints that the proposed rule perhaps already addresses the issue.
Because it does.
After expanding the term “sex” to include gender identity, the proposal goes on to state, “under the proposed regulations … a recipient’s education program or activity would include buildings or locations that are part of the school’s operations. … A recipient’s education program or activity would also include all of its academic and other classes, extracurricular activities, [and] athletics programs.”
Thus, the department has ensured that the sports issue will be decided in favor of biological men whether or not it engages in additional rule-making.
In addition to the above, the new Title IX rule removes commonsense student due process protections in campus sexual assault and harassment proceedings, returning investigative power to the hands of a single, unelected bureaucrat, and gutting the 2020 Title IX rule that established those due process guarantees.
It likewise muzzles students and professors by elevating “misgendering” or a failure to use their preferred pronouns as a sufficient basis to launch a Title IX investigation, creating a heckler’s veto of the highest order.
The burden is on the Department to provide evidence that Title IX requires modification.
Rewinding the clock and pitting males against females once again fails to meet that burden.
• Sarah Parshall Perry is a senior legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies.