Equal Protection Project Files Opposition To Biden Admin’s Proposed Title IX “Gender Identity” Sports Change

Equal Protection Project Files Opposition To Biden Admin’s Proposed Title IX “Gender Identity” Sports Change

As we reported last month, the Biden Administration was resoundingly “roasted” for proposing new regulations (the “Proposed Rule“) implementing Title IX that would essentially force schools to allow biological males to compete on women’s sports teams:

• Biden Administration Proposes New Title IX Rule That Would Force Schools to Embrace Gender Identity in Women’s Sports

BREAKING: The Biden Education Department just dropped new Title IX rules that bar schools that receive federal funding from enforcing policies that ban biological males from playing girl's sports.https://t.co/3VdHJarPKc pic.twitter.com/DbOMioI5yL

— Greg Price (@greg_price11) April 6, 2023

As Fox News reported at the time:

Critics lashed out at the Biden administration Thursday after it unveiled its proposal for new Title IX rules to expand the meaning of sexual discrimination to include gender identity as it relates to the application for transgender athletes participating in women’s sports.

Under the Department of Education’s proposed rule, no school or college that receives federal funding would be allowed to impose a “one-size-fits-all” policy that categorically bans transgender students from playing on sports teams consistent with their gender identity. Such policies would be considered a violation of Title IX.

The comment period for the Proposed Rule opened on April 13, 2023 and comments on the Proposed Rule were due yesterday in writing. Over 151,000 comments were filed.

The Request for an Extension

Because of the potentially earth-shattering impact of the Proposed Rule, the Defense of Freedom Institute and about 20 other organizations supporting women’s sports, including the Heritage Foundation, filed a joint letter requesting a 60 day extension (on top of the existing 30 days) to comment):

The Athletics NPRM [Notice of Proposed Rulemaking] proposes fundamental revisions that would profoundly undermine Title IX’s longstanding commitment to ensuring that America’s educational institutions provide equal opportunities for girls and women in competitive school athletics programs.  Proposed 34 CFR § 106.41(b)(2) would unlawfully reorient Title IX by replacing sex-based rights with gender identity-based rights, despite the Department’s lack of authority to change Title IX’s clear, sex-based purpose.  The Athletics NPRM would force every school district, college, and university receiving federal funds to review, rewrite, and revise their athletic participation policies and would place an onerous burden of proof on educational institutions should they attempt to prevent the participation on female athletic teams and in competitions of biological males claiming to be females.  These are large and highly consequential issues about which the American people and educational institutions are owed a meaningful opportunity to comment…

To afford the public a meaningful opportunity to comment on the highly impactful Athletics NPRM, we believe a 90-day comment period is warranted.  The proposed rulemaking has important consequences for America’s schools, colleges, and universities and would subsume Title IX’s sex-based protections ensuring equal educational opportunities for women to a gender identity-based agenda that Congress has not authorized.  Extending the comment period to 90 days will ensure that the public is able to thoughtfully analyze and constructively respond to the Athletics NPRM, which should benefit the Department’s rulemaking efforts.

Unfortunately, the Department of Education, which publishes and implements Title IX regulations for schools, did not extend the due date, and, as mentioned, comments were due in writing yesterday at 11:59 p.m. EDT.

EPP’s Official Comment

Fortunately, we here at the Equal Protection Project (EqualProtect.org) filed our input on the Proposed Rule:

The Title IX “Revolution”

In EPP’s input, we first explained the incredible changes brought about by Title IX:

[A]lthough Title IX itself nowhere expressly mandates any effect regarding school sports, Title IX brought about a “revolution” in female intercollegiate and interscholastic athletics.  Deborah Brake, The Struggle for Sex Equality in Sport and the Theory Behind Title IX, 34 U. Mich. J. L. Reform 13, 15 (2000).  “Fewer than 300,000 female students participated in interscholastic athletics in 1971.  By 1998–99, that number exceed 2.6 million, with significant increases in each intervening year.  To put these numbers in perspective, since Title IX was enacted, the number of girls playing high school sports has gone from one in twenty-seven, to one in three.”  Id.

This is important not only for the physical health of the female student-athletes benefitting from Title IX’s clarion call for equality between the sexes, but also because “[g]irls who play sports stay in school longer, suffer fewer health problems, enter the labor force at higher rates, and are more likely to land better jobs.  They are also more likely to lead.”  Beth A. Brooke-Marciniak & Donna de Varona, Amazing Things Happen When You Give Female Athletes the Same Funding as Men, World Econ. F. (Aug. 25, 2016), https://www.weforum.org/agenda/2016/08/sustaining-theolympic-legacy-women-in-sports-andpublic-policy/. “[R]esearch shows stunningly that 94[] percent of women C-Suite executes today played sport[s], and over half played at a university level.” Id.

Indeed, “being engaged in sports ‘inculcate[s] the values of fitness and athleticism for lifelong health and wellness’ and ‘impart[s] additional socially valuable traits including teamwork, sportsmanship, and leadership, as well as individually valuable traits including goal setting, time management, perseverance, discipline, and grit.’”  Adams by & through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 820–21 (11th Cir. 2022) (Lagoa, J., specially concurring) (quoting Doriane Lambelet Coleman, et al., Re-affirming the Value of the Sports Exception to Title IX’s General Non-Discrimination Rule, 27 Duke J. Gender L. & Pol’y 69, 87–88 (2020)).

The Proposed Rule’s Change to Title IX

We then explained that the Proposed Rule change is simple, but profound.  All it does is add a paragraph to the Title IX regulations’ section that already allows separate male and female sports teams.  The proposed new paragraph reads as follows:

If a recipient [of federal funds] adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such 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.

We noted that this addition would cause a multitude of problems, but in EPP’s input, we identified three main reasons why the Title IX changes should be rejected:

1. The Proposed Rule Lacks an Adequate Legal Foundation
2. The Proposed Rule Defies Science, and Common Sense
3. The Proposed Rule is Something Only Congress, not an Unaccountable Federal Agency, Should Enact, if Desired

The Proposed Rule Lacks an Adequate Legal Foundation

In the Proposed Rule, the Government cites a relatively recent U.S. Supreme Court case as supporting the Proposed Rule.  It does not, for two reasons.

First, that case, Bostock v. Clayton County, 140 S. Ct. 1731 (2020), which said that firing someone solely because they were transgender violates Title VII (i.e. not Title IX), said it cannot be used to change any other law:

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. . . . 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. . . . 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 Court was quite clear that the Bostock opinion cannot be used to support changes to other laws, like Title IX, which the Department of Education is now trying to do.

Second, the logic of Bostock does not extend to Title IX, as EPP explained:

As a matter of common sense, the “employment firing” and “inclusion in a women’s sports team” contexts are very nearly opposites, and one can agree completely with the result in Bostock and simultaneously, and completely logically and compatibly, disagree with the Proposed Rule.

For example, it makes perfect sense that it should be as illegal to fire someone for being transgender, who is otherwise perfectly performing the duties of their job, as it is to fire someone for being a woman. Neither status, as a transgender person or a woman, has any impact on one’s job performance in most jobs, and so firing such a person for that reason alone must be, or at least most likely is, the result of naked prejudice or bias. This the law prohibits, and arguably rightly so.

But it does not therefore mean that transgender women, i.e., people who were born male but identify as women, especially those who have undergone no hormone therapy or other treatment whatsoever, should be allowed on women’s sports teams. Disallowing that would NOT be the result of naked prejudice or bias, as it would in the employment context, but would rather be based on science, i.e., the inherent physical differences between male and female athletes, as will be explained in the next section.

Therefore, Bostock’s reach should NOT extend to Title IX, not only because it said it doesn’t, but also because its logic does not extend that far.  There is no difference between women and men who identify as women in the employment context; there IS in the sports context.  The Department, therefore, should not rely on Bostock as buttressing the Proposed Rule.  It does not.

The Proposed Rule Defies Science, and Common Sense

We next argued that the physical differences between men and women mean that transgender women competing directly against women is patently unfair to women:

[T]he Proposed Rule defies simple fairness because the physical differences between males and females, especially those that contribute to athletic success, are stark and all in the male’s favor, as every athletic metric shows.

For example, males have larger hearts than females, which helps to pump blood to the muscles more efficiently, males have larger lungs than females, which helps to oxygenate the blood, and males have about a 12% higher concentration of hemoglobin than females, which helps to transport oxygen in the blood.  As a result, males have better aerobic capacity than females.  Jennifer C. Braceras et al., Competition: Title IX, Male-Bodied Athletes, and the Threat to Women’s Sports, at 17, available at https://www.iwf.org/wp-content/uploads/2021/09/COMPETITION_FINAL.pdf.  Grown males are, on average, 4.5 inches taller and have longer, larger, and denser skeletal structures than grown females, grown males tend to have greater bone mass, even after taking body size into account, and in some parts of the body, males have different bone geometry than females.  As a result, male and female bodies have different biomechanics, with the female body “set up to produce less force in running, jumping and throwing.” Id. (quoting Andrew Langford, Sex Differences, Gender, and Competitive Sport, QUILLETTE (Apr. 5, 2019)).

This shows up on the athletic field, most notably in world records.  For example, the men’s world record in the 200-meter dash is over two seconds faster than women’s world record (19.19 seconds to 21.34 seconds), and the men’s world record in 500-meter speed skating is two and three quarters of a second faster (33 .61 seconds to 36.36 seconds).  And it’s not just speed.  The men’s pole vault world record is over one meter higher (or incredibly over 44 inches higher) than the women’s world record (6.18 meters to 5.06 meters), and the men’s weightlifting world record is over 100 kilograms greater than the women’s world record (447 kg to 335 kg, or almost 250 pounds greater).  Id. at 22.

For one to expect women to successfully compete with men who possess these overwhelming physical attributes simply defies science, and common sense.  Even those males who undergo hormone therapy possess undeniable advantages unavailable to women.  For example, there are “over 3000 genes that contribute to muscle differences between human males and females,” and “[g]enetic differences, of course, cannot be eliminated by reducing testosterone.”  Id. at 28.  “Moreover, many of the changes brought about by increased levels of testosterone during male puberty (such as changes to skeletal architecture) are permanent and unalterable by testosterone reduction later in life.  Testosterone suppression will not, for example, make a person shorter or reduce a person’s wingspan.”  Id.  Moreover, hormone therapy does not reduce bone density, and does not reduce muscle size to female levels.  Id. at 28.  Males undergoing extensive hormone therapy also retain significant advantages in muscle strength, endurance, and speed.  Id. at 28-29.

In sum, males simply will outperform females in sports.  This makes it fundamentally unfair for them to compete on the same sports teams.

Only Congress, not an Unaccountable Federal Agency, Should Enact the Proposed Rule, if Desired

In this section, EPP explained that the Proposed Rule violates the major questions doctrine, which says that truly major changes to fundamental policies should only be changed through Congressional legislation, not unilaterally by unaccountable federal agencies:

Lastly, the Proposed Rule violates the major questions doctrine.  This doctrine, as Justice Gorsuch succinctly explains, holds that “‘important subjects … must be entirely regulated by the legislature itself,’ even if Congress may leave the Executive ‘to act under such general provisions to fill up the details.’”  West Virginia v. EPA, 142 S. Ct. 2587, 2617 (2022) (Gorsuch, J., concurring) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 42–43 (1825)).  The major questions doctrine is “vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’”  Id. (quoting The Federalist No. 11, p. 85 (C. Rossiter ed. 1961) (A. Hamilton)).  Indeed, “[p]ermitting Congress to divest its legislative power to the Executive Branch would ‘dash [the] whole scheme,’” id. at 2618 (quoting Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 61 (2015) (Alito, J., concurring)), and would result in legislation “becoming nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him.” Id. (citing S. Breyer, Making Our Democracy Work: A Judge’s View 110 (2010) (“[T]he president may not have the time or willingness to review [agency] decisions”)).

The major questions doctrine applies “when an agency claims the power to resolve a matter of great ‘political significance,” id. at 2620 (quoting NFIB v. OSHA, 142 S. Ct. 661, 665(2022)), “or end an ‘earnest and profound debate across the country.’”  Id. (quoting Gonzales v. Oregon, 546 U.S. 243, 267–68 (2006)).  Each of these reasons applies here.

In West Virginia, the EPA wanted to impose a so-called Clean Power Plan (CPP), which would have forced coal and gas-powered electricity generation power plants “to cease operating altogether,” fundamentally transforming the American economy.  Id. at 2612.  The Supreme Court held that “each of the signs the Court has found significant in the past is present here, making this a relatively easy case for the [major questions] doctrine’s application.”  Id. at 2621.  The same is true here.

The Proposed Rule would impose a default requirement on all recipients of federal funding that transgender athletes participate on sports teams according to their gender identity, not their gender at birth.  To depart from the default rule, a school would have to justify it based on its decision being “substantially related to the achievement of an important educational objective,” and, the school would have to “minimize harms to [transgender] students” who were denied access to a sports team of their chosen gender.  But the Proposed Rule provides precious little guidance on what an “important educational objective” is, how a school’s decision might “substantially relate[]” to that objective, or even how to “minimize harms” to transgender students and so comply with the Proposed Rule.  As a result, there can be no doubt that schools across the land will integrate transgender students into sports teams consisting of members of the opposite birth sex, so as not to run afoul of the Proposed Rule.

This would result in a sea change in intercollegiate and interscholastic sports, which is undoubtedly “of great ‘political significance.’”  W. Virginia, 142 S. Ct. at 2620 (quoting NFIB v. OSHA, 142 S. Ct. at 665).  Moreover, there is a nationwide “earnest and profound” raging debate occurring “across the country” at this very moment.  Id. (quoting Gonzales, 546 U.S. at 267–68).

Recently, former collegiate athlete Riley Gaines spoke at San Francisco State University, and simply for speaking her mind on transgender athletes’ participation in women’s sports, was assaulted and unlawfully detained for three hours by protestors.  Incidents like this, but fortunately less extreme in nature, are happening nationwide every day as citizens speak their mind and are challenged over their views on transgender athlete participating in women’s sports.  In a situation like this, as in West Virginia v. EPA, the major questions doctrine intrudes to caution the Department of Education from taking this major question out of Congress’ hands and imposing its own desired solution.

We then concluded that “[f]or the foregoing reasons, the Equal Protection Project of the Legal Insurrection Foundation recommends that the Department reject the Proposed Rule and preserve the existing rule as is.”

In sum, EPP is proud to support the rights of female athletes, from grade school to college, and we look forward to future opportunities to further ensure that the rights of female athletes, and others facing inequality and discrimination, are protected.

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