President Joe Biden’s Department of Education has issued guidance declaring that Title IX’s prohibition on sex discrimination also prohibits discrimination — or so-called discrimination — on the basis of sexual orientation or gender identity.
The new guidance mirrors the stance taken by Barack Obama’s administration during the final year of his presidency, when the Education Department issued a “Dear Colleague” letter tacking on “sexual orientation” and “gender identity” to the definition of sex discrimination as outlined in Title IX.
Wielding this radical redefinition of terms, the Obama administration proceeded to mandate that federally funded schools use students’ preferred pronouns and permit students to use bathrooms, locker rooms, and accommodations, and participate in athletics, on the basis of self-identified gender rather than biological sex.
Those policies were reversed under then-President Donald Trump, whose administration rejected Obama’s “Dear Colleague” letter and allowed schools to divide bathrooms, athletic teams, and dorm rooms on the basis of biological sex. In the meantime, states have begun to enact their own policies on the matter, declaring specifically in the realm of student athletics that biological sex still matters.
Justifying this reversion to the Obama-era guidance, Biden’s officials at the Education Department argue that they’ve merely interpreted the Supreme Court’s decision in Bostock v. Clayton County to mean that “sex discrimination” now includes sexual orientation and gender identity for the purposes of Title IX.
This is a poor reading of what was already a faulty Court ruling. In Bostock, the Court held that Title VII’s prohibition on sex discrimination in the context of employment also forbade employment discrimination on the basis of sexual orientation or gender identity — but the majority decision was silent on whether that holding applied to other nondiscrimination laws.
Though Biden’s officials evidently hope to strengthen their guidance by giving it the appearance of a Supreme Court imprimatur, the Education Department’s “interpretation” of Title IX is no more sanctioned by federal law than it was when the Obama administration attempted it.
The implications of the Biden administration’s move are immense. For one thing, supporters of the new guidance hope that it will prevent states from enacting and enforcing “Fairness in Girls’ Sports” laws, which are growing in popularity and which require students to compete in athletics alongside members of their own biological sex.
While opponents of such policies — among them news reporters — allege that such laws “bar transgender athletes from playing sports,” the reality is far less sensational. These policies ensure that young female athletes aren’t forced to compete against biological males, who maintain obvious physical advantages that are especially relevant when it comes to sports.
But redefining sex discrimination for schools across the country has implications beyond youth athletics. In several key contexts, this redefinition will put girls’ privacy and safety at risk, permitting a biological male to enter any female-only space without anything more than an assurance that he identifies as female. One need not be a critic of gender theory to understand why such a situation poses unique risks to female students.
With this policy, the Biden administration has overstepped its constitutional authority, circumventing the legislative process to impose on the country a radical redefinition of sex that coerces educational institutions into violating the rights of young women.