Oppose the Department of Education’s Proposed Regulations That Undermine Title IX!


The Department of Education (DOE) has published in the Federal Register a new proposed rule, amending its regulations implementing and enforcing Title IX of the Education Amendments of 1972 (Title IX).

The purpose and intent of Title IX may be gleaned from its very straightforward text: “No person in the United States 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.” (Emphasis added.) 20 U.S. Code § 1681. Although the law protects both males and females, the historical context and reality of sex-based oppression of women makes it abundantly clear that the principal purpose of Title IX was to address and rectify the systemic consignment of women and girls to second-class status in our schools and other educational institutions, including athletic programs.

That purpose has been undermined in recent years by the ongoing campaign, supported and funded by the prevalent neo-liberal factions of the U.S. ruling class, to categorize and treat men and boys who “self-identify” as female (i.e., who claim to be “transgender” women or girls) as actually female. This campaign has led many states, school districts, colleges and universities to adopt policies allowing and promoting the disturbing and harmful practices of permitting boys and men to compete in women’s and girls’ sports, enter rest rooms and locker rooms intended for the privacy and safety of women and girls, and allowing boys and men to steal scholarships and other benefits that would otherwise have been reserved for women and girls. Just as it is offensive and objectionable when white people have attempted to “self-identify” as black or Native American, or have occasionally tried to obtain scholarships and other remedial benefits designated for people of color, it is no less offensive and objectionable when males are permitted to “self-identify” as female, and benefit from scholarships, protections and remedial programs intended for women and girls.  

Under a rational and ethical administration, the DOE could play a positive role in putting an end to such practices. However, the Biden Administration has neither been rational nor ethical, and the DOE is now falling into line and threatening educational institutions with loss of federal funding if they fail to comply with the extremist agenda of trans-gender activists and the powerful plutocrats, medical associations and non-profit institutions backing them.

That agenda includes the complete subversion of sex as a protected class by conflating “sex” (an immutable biological fact) with “gender” (a fluid social construct and set of behaviors loosely associated with sex that has no fixed meaning). Its ultimate goal is to allow anyone who “identifies” as one sex to completely invade the province and destroy the freedom of association of the other. In the case of females who “identify” as male, the harm created may be minimal; in the case of males who “identify” as female, the harm is enormous, undoing decades of hard-won gains – including the protections afforded by Title IX.

This agenda is being pushed by activists who seek to codify the dogmatic and unscientific mantra, “trans-women are women; trans-men are men,” into law and impose it on all of society, often using mob violence against any who question its circular reasoning. That agenda has become official policy under the Biden administration, whose misguided Executive Order 13988 required federal agencies to implement rules to advance it (while perniciously conflating “gender identity” with “sexual orientation” in order to try to keep gays and lesbians on board).  

Following that Order, the stated intention of the DOE’s proposed amendments is to “set out a standard that would govern a recipient’s adoption or application of sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity.” (By “recipient,” the DOE is referring to recipients of federal education funding – schools, colleges, universities.) It refers to this notice of proposed rulemaking as the “Athletics NPRM.”

The Athletics NPRM provides that:

“if a recipient adopts or applies sex-related criteria that would limit or deny a student's eligibility to participate on a male or female athletic team consistent with their gender identity, those criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

The proposed amendments thus purport to be a sort of “compromise” between the trans-activist agenda and the original purposes of Title IX that the DOE is supposed to uphold. Perhaps recognizing the growing degree of political resistance to Biden’s executive order and the obviously harmful impacts of the trans-activist agenda, the DOE is essentially saying, “we realize that there are some problems with allowing trans-identified males to participate in women’s and girls’ sports, and we aren’t going to stop you altogether from limiting that practice in some ways, but you have to somehow do it in a way that minimizes the harms to trans-identified males.”

According to the DOE’s fact sheet: “The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are.” Thus, the proposed rule would mean that school athletic policies violate Title IX when they maintain sports teams that are exclusively based on sex, unless they can also satisfy the nebulous criteria just quoted. Yet the whole purpose of Title IX is to protect members of one sex (sex in biological fact, not cosmetic appearance or self-identification) from oppressive and unequal treatment.

When an institution accepts a wrongful and harmful principle as correct, and then attempts to palliate the harmful effects of that principle in the name of “compromise,” the result is that it is still condoning and allowing the wrongful practices and injuries to continue (sometimes literal injuries in this case), but in a somewhat “mitigated” manner. The result here will also create confusion, chaos and lack of consistent application. Educational institutions and states that have already opened up women’s and girls’ sports and locker rooms to males will be allowed to continue doing so; those that have limited or prohibited such practices may sometimes do so, but they cannot do so “categorically,” and will have to justify their restrictions based on the murky criteria quoted above.   

This is untenable and it must be opposed. We strongly urge the DOE to reject new regulations that contradict the very purpose and spirit of Title IX. Accordingly, the Green Alliance for Sex-Based Rights is submitting the following comment opposing the proposed amendments. We urge everyone concerned about the rights of women and girls to follow our lead and submit their own comments in opposition by the May 15th deadline. Comments may be submitted here, and individuals are certainly free to copy and paste GASBR’s comment as their own.


Comment by the Green Alliance for Sex-Based Rights
submitted: Tuesday, May 9, 2023 9:06 PM
Comment Tracking Number: lhh-1u5k-bxhf

The Green Alliance for Sex-Based Rights is a political association of Greens, feminists 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. It refers to the classification by the scientific community, including biologists and geneticists, of male or female based on reproductive function, gamete production, and related anatomic and chromosomal characteristics.

We strongly oppose DOE’s proposed amendments, as they are utterly contrary to the statutory purpose of Title IX, which was enacted as a measure to help address the historic and systemic oppression and unequal treatment of women and girls in our educational institutions. The proposed amendments do so by conflating “gender identity” with “sex,” and accepting as a premise that recipients must accept trans-identifying males as being de facto females and must make accommodations that allow them to participate in girls’ and women’s sports.

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.

The inherent unfairness and dangerousness of allowing males to participate in women’s and girls’ sports has been well documented. See, for example, our analysis here: https://greenalliance.sexbasedrights.org/take_action/womens_sports--for_extraordinary_women--not_ordinary_men, as well as the other sources provided in that statement. As summarized therein:

“In almost every sport, allowing natal males to compete on women’s teams or in women’s events will put female athletes at a significant competitive disadvantage. In some cases, it will deny female athletes the opportunity to compete at all. Allowing males with a substantial biological advantage as well as advantages of training, experience and opportunity to participate in women’s or girls’ sports corrupts and subverts the concept of sportsmanship. Additionally, in some high contact sports, natal male athletes have caused devastating injuries to female competitors. It also means that awards and scholarships meant for women will go to men, as we are already experiencing.  Female athletes have fought too long and too hard for equal athletic opportunity to allow this trend to continue.” 

“Some advocates for trans rights maintain that the competitive advantage of natal males who identify as trans-women is mitigated by the use of androgen or testosterone inhibitors and female hormones. However, at the grade-school level, some natal males are being allowed to compete in girls’ sports even without such inhibitors, if they self-identify as female. More importantly, even after such substances are administered, they do not reverse the physical advantages of male development that have already occurred. Advantages of physical size and strength are not eliminated by such means. Athletic competitions between natal males and natal females remain fundamentally unfair.” 

Your proposed amendments cite to the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020), as providing some of the motivation for them, implying that Bostock requires such action. That justification is specious. The majority opinion in Bostock explicitly stated that its opinion was limited to the Title VII context:

“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. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual's sex.’” Bostock, 140 S. Ct. at 1753.

The extension of Title VII protections to encompass people who identify as transgender does not harm any other class of persons and is unobjectionable for that reason. As long as the employer is not actually harmed by the person’s identification as transgender, which would be a rare circumstance, it makes sense to protect the rights of such persons not to be discriminated against. Everyone should have the right to be treated equally in the employment context, regardless of their personal sexual behavior, which ordinarily has nothing to do with how they perform their work.

Title IX, however, is a completely different context. In this instance, the DOE’s amendments would essentially force educational institutions to accept as fact something that is not fact – viz., that males are females when they decide that they believe they are female. It forces them to embrace a fiction and then adopt rules to promote that fiction. As a consequence, another class of persons is materially harmed – women and girls, the very class of persons whose interests and rights Title IX was intended to protect.

It is also imprudent for the DOE to adopt regulations that our federal courts, and eventually the Supreme Court, is ultimately likely to strike down for that very reason, or to forbid our educational institutions from adopting their own rules that actually comport with the purpose and legislative intent of Title IX.

Our educational institutions and athletic associations have created sex-segregated sports and sex-segregated related facilities, for good, sound and sensible reasons. Title IX was never intended to undermine that segregation. It was intended to ensure that women and girls enjoyed the same level of overall opportunities to participate in sports, with the same level of funding, and with the same opportunities for scholarships and other rewards for excellence, as men and boys. There is clearly more work to be done to make that vision a reality. The DOE would do well to stay focused on that goal, rather than seek to materially undermine it by forcing schools to eliminate sex-segregated sports for the benefit of males under the delusion that they are female, as well as males who pretend to have that delusion as a means of winning athletic contests and enjoying the ensuing benefits.   

For these reasons, we urge the DOE to withdraw its proposed amendments.

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