Title IX Proposed Amendment to add "Gender Identity" as a Protected Class

Green Alliance Statement to the Department of Education on Its Proposed Amendments to Title IX Regulations

The Green Alliance for Sex-Based Rights is a political association of Greens, feminists, pro-feminist male allies and other concerned persons who recognize that women and girls are oppressed on the basis of sex and who are dedicated to overcoming that oppression. By “sex,” we refer to biological sex, which is binary and immutable and grounded in our potential respective roles in human reproduction. It refers to the classification of male or female based on anatomic and chromosomal characteristics, most easily distinguished by the type of gametes our reproductive systems generate.

Accordingly, we applaud the proposed amendments to the Title IX regulations that would bar discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions,” and “sexual orientation.” Those proposed amendments are consistent with the core purpose of Title IX. 

However, we are adamantly opposed to those proposed amendments that would add “gender identity” as a protected category. Those proposed amendments attack the very foundation and purpose of Title IX – as a vehicle for protecting women and girls from discrimination and promoting their advancement toward social equality.

We recognize that it is currently popular or trendy in some circles to champion the rights of persons who identify as “transgender,” “gender queer,” “gender fluid,” etc. We agree that persons who so identify 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.

Unlike “sex,” which is immutable, “gender” is a mutable social construct, a set of mostly learned or socially imposed behaviors and characteristics that our patriarchal society has associated with each sex. It can also describe a state of mind, such that a person might subjectively believe that he or she is of a “gender” that does not conform to his or her biological sex. Nonetheless, that subjective belief, no matter how sincerely held, and even if accompanied by various cosmetic and medical interventions, cannot and does not change the person’s sex. 

By conflating and confusing “sex” with “gender identity,” the proposed amendments to include the latter term as a protected category will cause incalculable harm to women and girls. They will lose opportunities for awards, scholarships, and other opportunities – both scholastic and athletic. They will lose corresponding economic opportunities. They will lose their rights to privacy, dignity, security and safety, as males will be given license to enter protected women’s spaces and participate in sporting programs where they not only enjoy an unfair anatomical and physiological advantage, but pose a real threat of physical injury to female athletes.  

The proposed inclusion of “gender identity” under Title IX would, for the first time, allow members of an historically oppressor class (males) to invade the ranks of an historically oppressed class (females) and enjoy protections and opportunities intended to lift up the oppressed class and help end the oppression. Our civil rights laws and regulations do not permit Caucasians to “identify” as African-American or Native American and then claim protections and opportunities provided by laws and regulations intended to improve conditions for racial and ethnic minorities. Title IX was intended to address longstanding sex-based oppression in educational and related institutions. That legislative purpose would be undermined by the proposed inclusion of “gender identity” as a protected category. 

A regulation that would allow males to enjoy the same protections and opportunities as females, by simply “self-identifying” as female, is in fundamental conflict with a law designed to improve educational, athletic, and other opportunities for women and girls. The inclusion of this language in the proposed amendments would undermine the very statute the Department of Education is charged with administering. For these reasons and more, we urge the Department to reject any proposed amendments to Title IX regulations that include “gender identity” as a protected category. 

 

 

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