We have been reporting on the saga of the Biden Administration attempting to change official Department of Education (DOE) regulations that would have mandated men (who “identify” as women) be allowed to participate on women’s intercollegiate sports teams.It began officially in April 2023, with a DOE “proposal”: Biden Administration Proposes New Title IX Rule That Would Force Schools to Embrace Gender Identity in Women’s Sports:
The Biden administration is proposing major changes to Title IX, via a new Rule Proposal as to how it is interpretted, which would expand the law to include gender identity and would penalize schools in some cases.Sports for women and girls are the focus here, and not in a good way.FOX News [from April 6, 2023] has details:
Biden admin roasted over new transgender Title IX regulations: ‘Insane injustice’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.“As a woman who has made history breaking glass ceilings, we must protect women. Women and girls have fought tirelessly for their rightful place in sports, and Title IX has been a crucial tool in leveling the playing field,” Rep. Nancy Mace, R-S.C., told Fox News Digital.“Allowing biological men to compete in women’s sports compromises the hard-won progress women have made in achieving equal opportunities in athletics. We need to find solutions that respect and protect the rights of all individuals while also preserving the integrity and fairness of women’s sports,” she added.
Fortunately, DOE invited comments on the proposed rule and received over 151,000 of them.
The Equal Protection Projection (EPP) was one of them: Equal Protection Project Files Opposition To Biden Admin’s Proposed Title IX “Gender Identity” Sports Change:
In EPP’s input we explained the practical benefits of Title IX for female students, the biological differences in sports physiology between men and women (which are stark), and the lack of legal basis for DOE’s proposed rule. You can review our input here, but this is from the EPP input’s introduction:
For the reasons set forth below, EPP strongly opposes the Proposed Rule because (i) the Proposed Rule lacks legal justification, as Bostock v. Clayton County, 140 S. Ct. 1731 (2020) cuts against, rather than in favor of, the Proposed Rule, (ii) the science underpinning the inclusion of transgender athletes on women’s sports teams clearly indicates that such inclusion is patently unfair to female athletes, and (iii) the major questions doctrine strongly suggests that such a massive change to interscholastic and intercollegiate sports, which would be the inevitable result of the Proposed Rule, should be legislated by Congress, not imposed unilaterally by a federal administrative agency.
Fortunately, as a result of the dramatic response, in September 2023 DOE decided to delay implementation of the new rule: Biden Delays “Gender Identity” Title IX School Sports Change After Intense Opposition, Including By Equal Protection Project.
Unfortunately, about six months later, in April of this year, DOE made the rule proposal official: Biden’s Title IX Protects Biological Males in Female Sports and Spaces.
Massive litigation ensued, as we reported:
As you can see from the titles, the cases were not going in the Biden Administration’s favor, so after several federal courts of appeals ruled against the new Title IX rules, the Biden Administration asked the Supreme Court to weigh in, which they did, upholding the injunctions against the new rule: Supreme Court Keeps Hold On Biden/Harris Title IX New Rules Giving Boys Access To Girls Sports and Locker Rooms:
Lower courts, including multiple courts of appeal, have issued injunctions against the new rules. The Biden/Harris administration sought emergency review by SCOTUS. Don’t wish too hard for something, you might get it, and Biden/Harris got the review they wanted only to have the court slap them down, at least for now.All Justices agreed that the injunctions should stay in place…The issue will come before the court later on full review, but this is a strong indication that a majority of justices, maybe even unanimously, will not force girls to share their sports teams, bathrooms, and locker rooms with boys who identify as girls.
Now, the Department of Education has cried uncle, and will not be implementing the changes to Title IX mandating biological men/boys on women/girls’ sports teams.
From National Review: Biden Administration Withdraws Proposed Title IX Change Prohibiting Trans Athlete Bans:
The Biden administration on Friday officially withdrew a proposed Title IX rule change that would have prohibited schools from categorically barring athletes who identify as transgender from participating on teams of the opposite sex.Secretary of Education Miguel Cardona and the Office for Civil Rights published a docket in the Federal Register withdrawing the proposal, which was announced in April 2023.If approved, the proposed rule change would have prohibited schools from implementing a one-size-fits-all ban on transgender athletes participating on teams that match their stated gender identity…In the five-page docket published Friday, Cardona noted that his Department of Education received more than 150,000 public comments on the proposal. “Commenters offered a broad spectrum of opinions,” the docket says. The docket also noted that “there are multiple pending lawsuits related to the application of Title IX in the context of gender identity.”“In light of the comments received and those various pending court cases, the Department has determined not to regulate on this issue at this time,” the docket reads.More than 20 states have passed laws in recent years restricting athletes from participating in sports of the opposite sex.
EPP is gratified to see that our input letter, although only one of 151,000, was part of the maelstrom of opposition to the Department of Education’s radical overhaul of women’s sports.
You can review Education Secretary Miguel Cardona’s capitulation here.
And EPP joins the various commentators celebrating this huge victory for women’s sports:
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