BIDEN'S OUTRAGIOUS TITLE IX REWRITE

National Review

 

Biden’s Outrageous Title IX Rewrite

By MADELEINE KEARNS

April 19, 2024 3:28 PM

 

The administration’s omnibus rule is a contemptible abuse of executive power.

 

On Friday, the Department of Education announced its final Title IX regulations, broadening the definition of sex-based discrimination to include “gender identity.” This effectively prohibits all educational entities in receipt of federal funds from acknowledging biological reality when individuals dispute it. As well as undermining free speech and due-process rights, the new rule will have sweeping and disastrous consequences for women and girls, the very people Title IX was supposed to protect.

 

The Biden administration is framing the final rule as a delivery of a campaign promise to better protect LGBTQ students from harassment “just because of who they are” and to restore Obama-era kangaroo courts for sexual misconduct on college campuses, which the Trump Department of Education (DOE), under Betsy DeVos, reformed to protect due-process rights and investigatory integrity.

 

Meanwhile, the DOE claims that its rulemaking process “is still ongoing for a Title IX regulation related to athletics.” Biden officials may have enough political sense to know that explicitly banning schools from keeping males out of women’s sports would likely backfire. Still, the administration’s PR front is disingenuous.

 

Last April, the DOE proposed a separate rule to address this question, one in which “schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.” But that “would allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.” (Whatever that means.)

 

The Associated Press reports that the delay on athletics is “widely seen as a political maneuver during an election year in which Republicans have rallied around bans on transgender athletes.” Nearly 70 percent of the public say that “transgender athletes” should be allowed to compete only against athletes of their own birth sex. It’s about time Democrats realized that transgenderism in sports is a losing issue.

 

Yet the same aim — allowing men into women’s sports— can be achieved by subtler means. Namely, by redefining sex-based discrimination to include gender identity. Which is precisely what the newly released final rule does.

 

Thanks to the Biden administration, women’s privacy and safety are in jeopardy. As my colleagues as the Independent Women’s Forum (IWF) have summarized: “This new Omnibus Rule, which governs all aspects of the educational experience, turns Title IX on its head through extra-statutory regulations that require schools to allow males to self-identify into women’s spaces, opportunities, and athletics.”

 

Single-sex spaces — bathrooms, locker rooms, dorms — will be single-sex no longer. And it doesn’t stop there. If “sex-based discrimination” includes gender identity, then refusing to use preferred pronouns or acknowledging a person’s sex could itself be considered discriminatory or harassment. Far from protecting women from sex-based discrimination, the new rules enable mistreatment and injustice toward those who defend sex-based rights and realities.

 

The original purpose of Title IX was fairness, opportunity, and safety for female students. The original understanding of sex in 1972, when the law passed, was indisputably anatomical. Even the New York Times can see that the new rules “effectively broadened the scope of Title IX.” But with what authority?

 

In its ruling, the administration cites Bostock v. Clayton County, the 2020 Supreme Court decision that confused matters but was nevertheless explicitly limited to Title VII in its scope. As the Trump administration noted at the time in a memo: “The Court decided the case narrowly, specifically refusing to extend its holding to Title IX and other differently drafted statutes.” The Biden administration has no mandate to redefine sex for the purposes of Title IX.

 

The Biden administration, like the Obama administration before it, overreaches by stealth. Yet as Jennifer C. Braceras, vice president for legal affairs at IWF and founder of Independent Women’s Law Center, said: “The Department of Education can’t just rewrite the statute by administrative fiat. We are confident the courts will remind the Department of this basic principle and strike down this unlawful rule.”

 

What is perhaps most outrageous is the president’s hypocrisy. Whether it’s abortion or the “gender pay gap,” Biden is happy to harp on about “women’s rights” this election cycle. But when it comes to the basic everyday rights to privacy, safety, or equal opportunity in education, Joe Biden and his band of progressive activists would set women back by more than 50 years.