The four conservatives on the U.S. Commission on Civil Rights urged House Republicans to battle the Biden administration’s effort to give female-identifying male students access to girls’ restrooms and locker rooms, which could include amending Title IX to include “biological sex.”
The commissioners encouraged House Speaker Kevin McCarthy to hold hearings on the proposed rule, unveiled last year by the Education Department’s Office for Civil Rights, seeking to add sexual orientation and gender identity to Title IX, the 1972 law forbidding discrimination in education based on sex.
In the letter to Mr. McCarthy, they said that Assistant Education Secretary for Civil Rights Catherine Lhamon is “ideologically committed to promoting gender identity over biological sex, and the interests of transgender students over the interests of other students.”
“We therefore urge you to hold hearings on Title IX and sex separation in sports teams and intimate living facilities,” said the letter, sent Friday. “Although we do not believe it is necessary, it might be useful for Congress to pass an amendment to Title IX specifying that schools may separate athletic teams and intimate living facilities by biological sex and prohibiting any federal agency from issuing regulations to the contrary.”
The four signers are labor lawyer Peter Kirsanow; University of San Diego law professor Gail Heriot; Public Interest Legal Foundation president J. Christian Adams, and South Carolina African American Chamber of Commerce CEO Stephen Gilchrist.
The Education Department said the proposed rule published July 12 in the Federal Register was needed to “strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity.”
The department also said it would engage in a “separate rulemaking to address Title IX’s application to athletics,” although the commissioners said the proposed rule “will also require schools to allow biological boys to compete in sports against biological girls.”
The rulemaking relies on the Supreme Court’s 2020 decision in Bostock v. Clayton County, which found that Title VII of the Civil Rights Act covers employment discrimination based on sexual orientation and gender identity.
The administration cited Bostock’s finding that it is “impossible to discriminate against a person” based on sexual orientation or gender identity without “discriminating against that individual based on sex,” but the commissioners said the department relied on a “misreading of both Title IX and Bostock.”
Unlike Title VII, Title IX contains the following exception: “[N]othing contained herein shall be construed to prohibit any educational institution … from maintaining separate living facilities for the different sexes.”
In other words, Title IX does in fact discriminate against the sexes, “but it is a form of sex discrimination that is expressly authorized by 20 U.S.C. § 1686 and by the 1975 Regulation,” the commissioners said.
“The statute — 20 U.S.C. § 1686 — explicitly and unambiguously authorizes schools to separate intimate facilities by sex,” the letter said. “Congress could repeal that through further legislation if it wants to. But it cannot be done through executive rulemaking.”
In addition, Justice Neil Gorsuch wrote in the majority opinion in Bostock that “we do not purport to address bathrooms, locker rooms, or anything else of the kind.”
The sweeping regulations proposed last June on the 50th anniversary of Title IX would also reverse policies enacted during the Trump administration strengthening due process for allegations of campus sexual assault and harassment.
The department said it took its cue from President Biden’s March 2021 executive order seeking to ensure “an educational environment free from discrimination on the basis of sex, including orientation or gender identity.”