Protect Title IX: Oppose the Department of Education’s Proposed Regulations to Include “Gender Identity” as a Protected Class!
Title IX of the Education Amendments of 1972 provides that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Congress intended Title IX to serve two purposes: “to avoid the use of federal resources to support discriminatory practices” on the basis of sex, and “to provide individual citizens effective protection against those practices.” Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
Since 1972, Title IX has served as the United States’ premier legal protection against sex discrimination in educational settings. Title IX covers not only schools and colleges but museums and art centers, tribal cultural centers, youth detention facilities, vocational rehabilitation agencies, libraries, parent organizations, and many other entities that receive Federal grant funds from the U.S. Department of Education (DOE).
Title IX has helped women and girls make tremendous advances. Women now make up over 56% of America’s college students and hold nearly half (48%) of tenure-track positions. Since Title IX’s passage, the number of female athletes grew more than 10-fold, and females now make up 42% of all high school athletes. In 1972, only 700 girls played soccer on high school teams. In 2018, there were 390,000.
Now, however, all of that progress, and the ability to use Title IX as a vehicle for further progress, is in jeopardy. The DOE, the principal agency charged with interpreting and enforcing Title IX, has now proposed some ill-conceived amendments to Title IX regulations. The agency has evidently drafted the proposed amendments in order to comply with President Biden’s equally misguided Executive Order 13988, signed within hours of his inauguration, which confused the protection of trans-persons from discrimination with promoting the incursion of trans-identified males into women’s spaces and sports. The DOE now proposes to “clarify” the scope of Title IX's prohibition on sex discrimination to include discrimination based on “gender identity.”
The proposed amendments to the regulations include other, positive provisions, adding protections against discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions,” and “sexual orientation.” These categories are consistent with the core purpose of Title IX. However, in proposing to add “gender identity” to the list, the DOE is proposing to extend Title IX protections to males, based on their self-identification as females. This conflation of gender identity with sex (two quite distinct concepts) attacks the entire premise upon which Title IX was based – that our government needed to protect women and girls from discrimination and promote their advancement toward social equality. Unlike the other proposed amendments, the proposal to add “gender identity” as a protected category would redefine “sex” itself, such that men and boys who “identify as” female would be considered female. This would undermine Title IX’s protections for women and girls and impede its ability to facilitate further progress. It would also open the doors to all manner of abuses.
We use the phrase “open the doors” literally as well as figuratively. Since 1972, Congress and the DOE have consistently interpreted Title IX as allowing differential treatment of individuals based on sex (meaning actual biological sex, not a belief or state of mind). This has allowed schools and colleges to have separate athletic teams and competitions based on sex, to ensure fairness and safety in light of innate male physical advantages. It has allowed for institutions receiving federal funds to have separate bathrooms, locker rooms, and showers. These single-sex spaces and services are critical for safety, dignity, and fairness, especially for women and girls seeking to avoid or heal from the trauma of sexual and physical abuse at the hands of men.
Under the proposed amendments, however, if a man demands to use the bathrooms, locker rooms and showers designated for women and girls, based on his belief that he has a feminine “gender identity,” then the institutions covered by Title IX must allow him access, regardless of how much harm is caused to women and girls by granting his demand. The proposed amendments would also require women and girl athletes to compete against males at such institutions, whenever and wherever male athletes declared themselves to be “female.” This is patently unfair and detrimental to women and girls, and in many sports poses a very real threat to the safety of women (and girl) athletes.
The proposed amendment to include “gender identity” as a protected category is not the product of popular demand, nor is it based on science or reason. It reflects the agenda and ideology of a well-funded and highly influential “gender identity” lobby, supported by Big Pharma and a profit-motivated “gender affirmation” medical complex, as well as vocal “trans-activist” shock troops who use deplatforming, intimidation, censorship and other “cancel culture” tactics to bully, drown out or silence opponents.
For these reasons, the Green Alliance for Sex-Based Rights categorically opposes any amendments to Title IX regulations that would extend Title IX’s protections to persons based on “gender identity.” The DOE is currently accepting comments on the proposed regulations. We urge anyone reading this statement to join us in making your voices heard in opposition to these destructive amendments. You can post your comments to this link. Our own statement in opposition to the amendments appears below. Readers can replicate or use portions of our statement as they see fit. Even if your own schedule does not afford you the time and energy to research and draft your own comments for this DoE rule-making process, we hope you might at least use the link above to express your support for the comments filed by the Green Alliance for Sex-Based Rights. Act soon, as the deadline to post comments on the proposed regulations is September 12, 2022.
Please submit a public comment objecting to the inclusion of "gender identity" as a protected class in the Department of Education's proposed changes to Title IX. To submit a comment, go to https://www.regulations.gov/commenton/ED-2021-OCR-0166-0001 before September 12th!