A sign for an all gender restroom at LaSalle Elementary Language Academy in Chicago, Dec. 9, 2021.
Photo:
Erin Hooley/Zuma Press
When Congress enacted the Education Amendments of 1972, Title IX was a simple provision designed to ensure equal opportunity for women. It bars schools that receive federal money from discriminating against students “on the basis of sex.” But 50 years later, “sex” has become a lot more complicated. The Biden administration proposes to redefine womanhood and transform Title IX into a barrier to the progress of women.
In June the Education Department made headlines with new regulations under Title IX that would curtail due process for students accused of sexual misconduct. A less-noticed proposal in the same rulemaking would alter the definition of sex to include sexual orientation and “gender identity.” The latter change is a direct threat to the interests of women and girls. It would require schools to treat boys and men who “identify” as female as if they were girls or women. Every sex-separated space and program—including bathrooms, locker rooms and sports teams—would be required to accommodate these transgender students.
Transgender participation in women’s sports was already a hot-button issue. A press release that announced the rule said the department plans to “engage in a separate rulemaking to address Title IX’s application to athletics.” But the June proposal includes several decrees about sports.
In addition to expanding the term “sex” to encompass gender identity, the rule states that under the proposed regulations a federal education program or activity would include not only “buildings or locations that are part of the school’s operations” but also “all of its academic and other classes, extracurricular activities, [and] athletics programs.”
To comply with this new interpretation of Title IX, education institutions “must not carry out any otherwise permissible different treatment or separation on the basis of sex . . . including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity.” The proposed rules would set the stage for a legal showdown between Washington and states that have enacted laws to prevent biological males from competing on female sports teams.
The department cites the Supreme Court’s ruling in Bostock v. Clayton County (2020) as the legal basis for the proposed rule. But that decision applied only to employment law, governed by Title VII of the 1964 Civil Rights Act. Justice
Neil Gorsuch
wrote for the majority that it didn’t “purport to address bathrooms, locker rooms, or anything else of the kind” and Justice
Samuel Alito
noted in dissent that the court “declines to say anything about other statutes whose terms mirror Title VII’s,” including Title IX.
Protecting transgender employees from discrimination may seem to be a simple matter of fairness. But applying this redefinition in the context of school sports is an attack on girls’ and young women’s privacy in the locker room and bathroom as well as their freedom to compete on an even playing field. It’s a travesty that the Biden administration seeks to do so under color of a law that was meant to promote women’s advancement.
Ms. Tietz is a Robert L. Bartley Fellow at the Journal.
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