OPINION: Biden Administration delivers blow to women’s and girls’ Title IX

— Department of Education ignores thousands of comments in opposition, publishes rule conflating gender identity with sex; effectively reverses Congressional intent behind its passage — 

OPINION: On April 19, 2024, the Biden Administration’s Department of Education published a 1,577 page Final Rule.

The Green Alliance for Sex-Based Rights believes that this new final rule, much like the draft originally proposed, eliminates Title IX protections for women and girls in educational settings by muddying the definition of sex by the inclusion of “gender identity” as a protected class.

Though the regulators claim they are not overriding biological sex by including “gender identity”, the effect of this is that sex is erased as a class since anyone can “identify” their way into it.

This move essentially negates the purpose of eliminating sex discrimination by nullifying the category of sex and elevating a mutable, subjective perception to the same status as an immutable, biological actuality, undermining the original intent of Title IX.

The proposed rule, from which this Final Rule was derived, was published in the Federal Register on April 13th, 2023 as 2023-07601. Originally, the Administration had sought to add a new provision, section 106.41(b)(2), requiring that policies related to the protection of single-sex sports must make allowances to “(m)inimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

Just days before the new rule was published on Friday, April 19th, the National Association of Intercollegiate Athletics (NAIA) voted unanimously to keep women’s sports for females only.

A few weeks earlier, on March 14th, current and former women’s college athletes filed a federal lawsuit against the National Collegiate Athletic Association (NCAA) for allowing transgender males to compete in women’s sports.

In an apparent political move to avoid the controversial issue of trans-identified males competing in female sports, media outlets are reporting that the Department’s recent rule change removed proposed language on the subject.

Though the changes regarding sexual assault and harassment may seem positive at first blush, they have opened the door for potential abuse. Under the new rules, trans-identified males will be enabled to file spurious charges of “misgendering” or “mispronouning” for anyone simply recognizing reality, for objecting to unfair and unequal treatment, or for simply objecting to compelled speech.

The claimed intent of these changes is to balance the overly broad formulations of the Obama Administration and the narrow and burdensome requirements of the Trump Administration, but the Biden Administration’s ruling allows the incursion of males in female spaces and is oblivious to the negative impact of “inclusion” on the rights, opportunities, dignity, privacy, and safety of women and girls.

“In its zeal to protect trans-identified people, mostly males, from discrimination, the Biden Administration is either blind or indifferent to how this ruling discriminates against biological females. It is staggering that this obvious reality fails to inform its decision, which effectively erases a sex class, and punishes truth while rewarding illusion,” observed Carol A. Bouldin, Co-Chair of the Green Alliance for Sex-Based Rights.

“Further, it is a clear dereliction of the sworn duty to uphold the laws of the United States Biden assumed when taking office, as these regulations subvert the intent of Congress for Title IX and compel speech and belief, in contravention of the First Amendment,” Bouldin said.

The Green Alliance joined 240,000 other individuals and organizations that offered comments on the proposed rule introduced on June 23, 2022. Department of Education spokespeople have acknowledged that this level of engagement is unprecedented in the Department’s history. In the comments offered on behalf of GASBR members, the organization told Education Regulators that,

“We agree that persons who so identify [as transgendered] should enjoy the same civil rights and liberties as all other members of our society. But we disagree that this means recognizing a ‘right’ for males who ‘identify’ as female to invade women’s and girls’ sex-segregated spaces, participate in women’s and girls’ sports, access scholarship programs or other programs intended to benefit women or take advantage of other protections or opportunities that Congress intended to set aside for women and girls when it adopted Title IX. Yet that is exactly what the Department’s proposed inclusion of ‘gender identity’ will do – to the detriment of women and girls.”

The statement went on to say, “The inclusion of this language in the proposed amendments would undermine the very statute the Department of Education is charged with administering.”

Twenty states sued the U.S. Department of Education in 2022 and are likely to do so again; Women’s Liberation Front (WoLF), a radical feminist organization, has already stated its intention to litigate the new rule.

“One is left to speculate on how girls and womens sports might be a fight postponed till after the election, to deny Republicans a card, while mobilizing the Democrat base for re-election,” said Hugh Esco, an officer of GASBR. “The rules we are looking at right now will surely gum up the works and burden families with responsibility to navigate, even litigate at their own expense, this new regulatory environment for a way to protect their daughters from our publicly-funded schools. Watching the safety and security of girls and young women being swept aside in order to favor the irrational demands of the well-financed and predatory transgender lobby that sacrifices children as political pawns, has become an all-too familiar spectacle.”