Twenty-eight pro-family organizations have warned the U.S. Department of Education (DOE) in a letter not to re-interpret the federal education law known as Title IX to require that males who claim to be females be allowed to play on interscholastic girls and women’s athletic teams.
Announced in a press release by the Defense of Freedom Institute for Policy Studies, the group letter advises DOE Secretary Dr. Miguel Cardona that the 28 organizations signing the letter are “alarmed” by a January 4, 2023, announcement that DOE will “soon propose a new regulatory scheme to supplant the Department’s longstanding regulations permitting sex-separated athletic competitions (i.e., women’s sports) with the Biden administration’s gender identity-related policies (‘anticipated rulemaking’).”
Other notable signatories to the letter include Family Policy Alliance, The Heritage Foundation, the Ethics & Public Policy Center, Family Research Council, Concerned Women for America, and Texas Values.
The letter charges that any new rules allowing males to compete as females would violate the letter and spirit of Title IX:
Implementation of the anticipated regulations would directly undermine Title IX’s important statutory protection of equal rights for female students by arbitrarily subordinating those rights to the Department’s novel gender identity policy preferences. Such rulemaking would conjure out of thin air a legal right for biologically male students who identify as females to compete against biologically female students where Congress has clearly provided no such right – directly encroaching on Title IX’s protections for female student athletes.
Title IX, which was passed in 1972, covers discrimination in educational opportunities (including sports) based on sex, but does not include gender identity. The letter cautions:
Title IX, by its express terms, is limited to the prohibition of sex-based discrimination involving “any education program or activity receiving Federal financial assistance” and does not include gender identity. Given the Department’s defiance of Title IX’s text, purpose, and history in the NPRM (Notice of Proposed Rulemaking) and the NOI (Notice of Interpretation), we anticipate that the coming rulemaking on athletics will similarly conflate gender identity with Title IX’s sex-based protections and degrade those very protections.
We call on the Department to set aside its anticipated rulemaking on athletics and choose a lawful, sensible path that does not defy Congress, exceed the agency’s rulemaking authority, trample the rule of law, and result in unfair athletic competition for women and girls.
The bizarre chain of events that has resulted in a law protecting opportunities for women to be reinterpreted to protect men who want to compete against women started with the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. Bostock, which involved claims of employment discrimination, redefined “sex” in that context to include gender identity.
Justice Neil Gorsuch, who wrote the majority opinion in Bostock, disclaimed any impact of the court’s opinion on other legal relationships not involving issues covered by Title VII, the federal law prohibiting discrimination in employment:
What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today (emphasis added).
But Gorsuch’s admonition fell on deaf ears as lower courts as well as the current administration hurried to cite Bostock as a basis for redefining “sex” in various federal statutes to include “gender identity.”
In fact, DOE last year issued new rules under Title IX to include gender identity in all areas except athletics. The proposed new rulemaking, which prompted the recent group letter, would specifically target athletics.
It’s hard to gloss over the fact that allowing males to compete in female sports takes opportunities away from women. Something that Title IX was supposed to prevent, not encourage.
The effect of the new rulemaking will be to turn a federal law (Title IX) protecting girls and women’s sports on its head to allow males like Will (now Lia) Thomas to dominate women’s NCAA swimming, for example. Or to allow males to compete in girls track, as was the case in Connecticut, where over the course of three years, two boys – claiming to be girls – won 15 women’s high school track championship titles, and girls in that state lost over 85 opportunities to participate in higher levels of competition.
Concerned members of Congress have introduced legislation to amend Title IX to make it clear that “sex” as used in the law must be “based solely on a person’s reproductive biology and genetics at birth.” Currently, however, the bill does not have the votes to advance.
When DOE publishes its proposed rules, and opens up its website for public comments, we’ll let you know. DOE needs to hear from parents that “enough is enough.” It’s time to protect women’s sports.
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