Biden Delays “Gender Identity” Title IX School Sports Change After Intense Opposition, Including By Equal Protection Project

Biden Delays “Gender Identity” Title IX School Sports Change After Intense Opposition, Including By Equal Protection Project

As we reported in May, the Equal Protection Project (EPP) filed an opposition “comment” to the Department of Education’s proposal to change how women’s sports work, from grade school through college:

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

Fox News reported at the time: 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.

Any interested party was allowed to comment on the “Proposed Rule,” and the comments were due May 15, 2023. Over 151,000 persons or entities did so, including the Equal Protection Project.

The Equal Protection Project’s Comment

You can review our input here:

The New Proposed Rule

So what does the new Proposed Rule entail? Well, it simply adds one almost innocuous paragraph to the voluminous rules governing school sports, but it is a breathtaking (from a school athlete’s perspective) change.

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. [emphasis added]

This means that any school wanting to ban or even limit biological males from competing in women’s sports would have to justify, to DOE, that such ban or limitation was “substantially related to the achievement of an important educational objective,” whatever that means, and the schools would have to prove to DOE that they “minimized harms” to transgender students denied access to women’s sports teams. How they would do that is unknown.

EPP’s Opposition To The Proposed Rule

We don’t know how the Proposed Rule, once adopted, would play out exactly, but it seems like it would take a great deal of intestinal fortitude for a school to justify even limiting transgender participation in women’s sports under this rule.

In our comment, EPP noted that this addition would cause a multitude of problems, including confusion over how a school “minimizes harms” or defines “an important educational objective,” 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

1. Inadequate Legal Foundation

The Proposed Rule lacks an adequate legal foundation because DOE based the change on a U.S. Supreme Court employment case called 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), but also 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.

In addition, if you think about it, firing someone is fundamentally different than requiring that a transgender person be allowed on a sports team. From our input:

[I]t 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.

2. The Proposed Rule Defied Science and Common Sense

The Proposed Rule defies science and common sense because of the great physical differences between biological men and women, or boys and girls. From EPP’s comment:

[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)).

We then noted how these physical differences show up dramatically on the sports field, and that many differences between males and females cannot be erased by the use of drugs such as hormone injection therapy, and concluded that “males simply will outperform females in sports.  This makes it fundamentally unfair for them to compete on the same sports teams.”

3. Only Congress Should Legislate a Change this Huge

Finally, EPP’s comment explained that because the Proposed Rule would fundamentally transform sports from grade school to college, it was inappropriate for federal agency action under the Supreme Court’s “major questions” doctrine and should require legislation:

The major questions doctrine applies “when an agency claims the power to resolve a matter of great political significance,” “or end an ‘earnest and profound debate across the country.’”  Each of these reasons applies here. [citations omitted]…

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.’”

We 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.”

Delay in the Proposed Rule’s Implementation

Originally, the Department of Education desired to implement the new rule several months ago in May of this year, but delayed that to October 2023 due to the overwhelming response.

Now there is a report, which some digging has revealed is quite likely, that the Proposed Rule, in whatever form it takes in its final version, will be out next spring at the earliest.

From a press release from SAVE: Assuring Fairness and Due Process in Schools:

• In the Face of Overwhelming Opposition, DOE Backs Away from Controversial Title IX Plan

Responding to growing criticisms from many sectors of society, the U.S. Department of Education (DOE) reportedly is delaying the release of its controversial Title IX regulation until 2024 or later. A Higher Ed Dive article confirmed that the DOE “hasn’t even sent its regulatory plans to the Office of Management and Budget, which can take up to 120 days to review them.”

The Higher Ed Dive article that SAVE cited provides more detail:

The U.S. Department of Education probably won’t meet its own October deadline for releasing the [Proposed Rule] that colleges are anxiously awaiting, policy experts and practitioners say.

The likely delay is a blow to the Biden administration, which has made a rework to federal sexual misconduct and gender identity policies a signature initiative. Colleges are also in an awkward position of adhering to an existing Trump-era Title IX regulation, while still needing to prepare for a completely new slate of rules.

Title IX is the law banning sex-based discrimination, including sexual violence, in federally funded colleges and K-12 schools.

Now, the department has not yet sent the regulations to the Office of Management and Budget for review, a required step. A branch of that agency, the Office of Information and Regulatory Affairs, or OIRA, has up to 120 days to evaluate the regulations.

Thus, if the Education Department transmitted the rules to OIRA this week, and it took all 120 days, that would put the shortest possible timetable into the very end of December. In reality, the Education Department then will likely need even more time to make any OIRA-recommended changes to the regulations.

It already needed to wade through and respond to feedback that poured in during the initial public comment periods that occurred this year and last. The broad Title IX proposal received more than 240,000 comments, while the athletics one garnered more than 150,000.

One expert, “Melissa Carleton, a lawyer who specializes in higher ed at the firm Bricker Graydon,” expects the Proposed Rule to issue “by July 1 [2024]. A similar timeline was predicted by Brett Sokolow, president of the Association of Title IX Administrators. Sokolow wrote in a public post that he predicts a final rule in spring 2024, with it going into effect that summer.”

Sokolow’s post, which goes into the gory details of federal agency rulemaking, opines that:

“publication of the final rule will occur 4-6 months from the transmission date. If the final rule were transmitted today as I write this at the end of August 2023, the earliest we’d have a final rule published in the Federal Register is around January 1, 2024, and the latest would be around March 1, 2024…[DOE] could release the rule in March (mid-to-late spring) but delay enforcement until sometime in the summer [of 2024]. At present, that seems to be the most plausible scenario, as the clock has yet to start on OIRA’s review.

Conclusion

As we concluded in our prior post on the subject, “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.”

We should add that the delay detailed today has to, from any angle, be considered a win. Minor perhaps, but a win nonetheless, as adoption of the Proposed Rule is likely to have significant negative consequences to women’s sports at all levels. The Proposed Rule was originally slated to go into effect this 2023-24 school year, but has been delayed, meaning that at least this year’s female athlete’s are spared the fed’s all-powerful control over this subject. If there is any way EPP can further delay the adoption of or help effect the cancellation of the proposed rule, rest assured we will.

Yes, HUGE OPPOSITION to Biden believing he has the right to change TitleIX sex to gender identify. Girls and Women deserve privacy, safety, and fairness in sports. @icons_women @ICFSport https://t.co/M4hOKN0gqG

— Mary I. O'Connor, MD (@MaryOConnorMD) September 2, 2023

School officials have nothing to lean on to justify allowing biological males to use female restrooms or compete against them in sports. If they tell you that, they're lying or ignorant. Either way, you should stand up for your kids. https://t.co/mpjsTdtnrr

— jackwindsor (@jackwindsor) September 2, 2023

What we do matters! Our collective voices are being heard!

This is WINNING!@Moms4Liberty
& @M4LMecklenburg are happy to lead the way!#TitleIX https://t.co/JAbEX41bC7

— Brooke Weiss, instapot insurrectionist (@BrookeWeiss) August 31, 2023

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