The reaction from the mainstream media over the Biden administration’s Title IX overhaul has been predictably slanted and misleading.
The reaction from the mainstream media has been predictably slanted and misleading.
I n the name of fighting discrimination against trans-identified students, the Biden administration has issued guidelines and proposed sweeping new Title IX rules that, ironically, discriminate against women. The Biden policies place schools and state officials between a rock and a hard place, caught between protecting the rights of women and girls under Title IX and state law and complying with administrative edicts that require them to allow males into female-only spaces.
Seeking clarity, multiple Republican attorneys general filed suit in federal court in Tennessee. Last Friday, Judge Charles Atchley indicated skepticism about the administration’s approach, temporarily enjoining the Education Department’s Title IX guidelines.
The reaction from the mainstream media was predictably slanted and misleading. According to Politico, this “essentially ties the department’s hands when it comes to protecting transgender students from discrimination in 20 states.” Politico gets it wrong for at least two reasons.
First, there are many more interests at stake than simply those of trans-identifying students.
By redefining sex to include gender identity, the administration is moving toward prohibiting schools from having female-only facilities, housing, and sports teams. Furthermore, the new rules would redefine “sex-based harassment to include but not be limited to sexual harassment.”
In other words, Biden’s proposed rules wouldn’t only affect the 0.7 percent of the population who identify as transgender. They would also affect the 50 percent of the population who are female — the very people Title IX was designed to protect in the first place — as well as the free-speech rights of every American who attends or works at a federally funded school.
I say the rules “would” do these things because they haven’t yet gone into effect. This brings us to the second point of clarification: The administration was already prevented from legislating via guidance documents without proper public consultation.
The Obama administration was notorious for precisely this type of executive overreach. In 2016, the Education and Justice Departments instructed public schools to “treat a student’s gender identity as the student’s sex for the purposes of Title IX and its implementing regulations,” and threatened to investigate and withdraw funds from any school that failed to comply. In response, the radical feminist organization Women’s Liberation Front filed a lawsuit suit against the administration for violating the Administrative Procedures Act, which it argued the administration did by issuing an “arbitrary and capricious” legislative rule “without the required notice and comment procedure” and “in excess of statutory authority and limitations.”
Because the Trump administration rescinded the guidance, the lawsuit was rendered moot. But soon after taking office, the Biden administration changed course again, releasing a number of sub-regulatory guidance documents including a Fact Sheet, technical-assistance document, Notice of Interpretation, and Dear Educator letter — all of which Judge Atchley rightly enjoined, holding that such guidance “directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws,” a violation of the Tenth Amendment.
While this objection was largely procedural, Atchley also signaled his sympathy with the Plaintiff States on the merits, noting that Biden’s Title IX guidance ignored the “limited reach of Bostock.” Indeed, the Supreme Court’s ruling in Bostock v. Clayton County held that Title VII’s prohibition on discrimination “because of sex” extends to sexual orientation and transgender status in the case of workplace hiring and firing. But the Court explicitly stated that this ought not to be construed to apply to other contexts.
Still, some federal judges have sided with the administration. After West Virginia passed a law prohibiting males on women’s sports teams, the ACLU sued on Title IX grounds, and a federal judge issued a preliminary injunction blocking the law. Another federal judge did the same thing to Idaho’s Fairness in Women’s Sports Act.
As more states pass laws upholding sex-based distinctions in sports and schools, we are likely to see competing judicial interpretations of Title IX. For instance, Soule v. Connecticut of Association of Schools — the Title IX lawsuit by female high-school athletes displaced by trans-identifying males — at the Second Circuit is scheduled for oral arguments on September 29.
Should a circuit split arise, the Supreme Court might weigh in. In the meantime, the public has until September 12 to comment on the administration’s proposed Title IX regulations. The future of Title IX is still to be determined.