When he failed to enact his agenda through Congress, President Obama famously reacted by saying he still had his phone and his pen. Unfortunately, his bureaucrats in federal agencies also had their own phones and a lot of pens. One prominent federal civil rights statute — Title IX — was repeatedly targeted for interpretation and reinterpretation within the Obama administration.
Title IX is the 1972 statute that protects girls’ and women’s athletics, and prevents schools from tolerating sexual harassment or other sex discrimination. But in 2015, one bureaucrat in the Department of Education (DOE) announced sweeping new Title IX policy in a letter to a transgender rights activist, saying that schools throughout the country also had to treat a person’s so-called gender identity as conclusive for the purpose of assigning students to “restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes.”
When President Trump won office in 2016, he swiftly set about to change the Department of Education’s inappropriate habit of “regulating by letter.” And in 2020, Secretary of Education Betsy DeVos succeeded in actually enshrining Title IX changes into law — by announcing regulations that balanced the need to eliminate sexual harassment with the need to protect due process.
But in 2021, the Biden administration announced it would try to scrap DeVos’ Title IX rules. The new approach taken by this president, however, goes far beyond merely undoing his predecessor’s policies.
Instead, under President Biden, the DOE is proposing to revive President Obama’s old policies and treat Title IX as if it also covers sexual orientation and gender identification discrimination in schools throughout the United States. Title IX’s language specifies that it only prohibits “sex” discrimination, not sexual orientation or gender identity, but that hasn’t stopped Obama, Biden, or their bureaucrats in Washington, D.C., from trying.
On Feb. 2, 2024, the DOE submitted the final touches to its new Title IX rule, which is expected to receive the president’s approval. In that new rule, the DOE will force K-12 schools and colleges to enact policies that specifically cover sexual orientations and gender identities of all kinds. Presumably, this new rule will include bisexuals, polyamorous individuals, and potentially myriad “non-binary” (neither male nor female) “gender identities.”
It is one thing to suggest that schools ought to enforce anti-discrimination principles with respect to transgender individuals. But it is another thing to suggest schools must accept, validate, and accommodate every student’s self-proclaimed gender identity and sexual orientation, or else be adjudicated to have violated federal civil rights laws. The Biden administration’s proposed rule would do exactly this, and the consequences of their radical departure from past enforcement of Title IX are immense.
By now, the debates over bathrooms, pronouns, and sports teams are familiar. But it is unclear if the Biden administration even understands the full scope of its proposed rule now that sexual orientations and gender identities have proliferated since 2015. Consider some potential effects. Students who insist they are neither male nor female might demand that a university build a separate dormitory for each unique gender identity, in addition to the male and female dormitories that are already established, to ensure “equal” access for all. Some students who identify as gender-fluid might insist on moving back and forth between facilities.
Yet it could get even more onerous for schools trying to comply with federal law. Unless the new Title IX rule clearly defines the outer boundaries of what a “gender identity” is, schools will be confounded with strange requests from students who insist they are animals, autigender (that’s a neurodevelopmental gender), or even cake.
Around the country, teachers and administrators will have great difficulty understanding their duties under Title IX to ensure that such students have access to school facilities on equal terms as males and females who accept their innate sex — that includes sports teams, bathrooms, neo-pronouns like ze and zir, and more. In an extreme situation, a pedophile could assert his sexual orientation is that of a “minor-attracted person,” and that a school may therefore not discriminate against him on the basis of that sexual orientation.
These outcomes may sound outrageous and perhaps even silly. The same may be said for the types of vocabulary we use in 2024 compared to 2015. But times are changing rapidly, and many things can seem ridiculous until they arrive as the “new normal.” For that reason, the Biden administration’s proposed Title IX changes are a dangerous gambit.
William E. Trachman is the general counsel of Mountain States Legal Foundation and the former deputy assistant secretary for civil rights in the Trump administration.
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