Proposed rule changes will weaken or destroy Title IX

Instead of proposing changes that might actually improve the application of Title IX, the Biden administration is codifying woke ideology that will only weaken it or, worse yet, make it irrelevant.

On the 50th anniversary of a law that some refer to as the Big Bang of women's sport, the Biden administration is proposing controversial changes to Title IX regulations that inject political ideology into public policy. The regulations include expanded protections for sexual orientation and gender identity. The gender identity regulations conflate sex and gender and recognize a woman as anyone who identifies themself as one. But without any common sense definition of woman, the reason Title IX was included in the Education Amendments of 1972 in the first place will be erased. 

The 700-page document is silent on how gender identity will be addressed in sport, new regulations in that area will come later and are not mentioned in the current proposals. However, past statements from administration officials and the tone of the new proposals indicate that rules affecting sport will allow students to participate on teams consistent with their gender identity. This will federalize the scenario that allowed Lea Thomas to participate in NCAA swimming as a transgender woman earlier this year and set up a direct challenge to recently enacted legislation in several states to prohibit such a practice.

Title IX prohibits sex-based discrimination in federally funded academic environments. This may sound like a limitation but almost every school in the United States gets some kind of funding from the federal government, consequently Title IX has wide application. Following its original passage in 1972 it was notably applied to many collegiate and high school sport programs. It increased opportunities to participate in sports for many girls and women and since early enforcement centered on sport it’s understandable that many Americans believed the law only applied to sport programs. 

This was never true but it wasn't until significant changes by the Obama administration—making it easier for victims to pursue sexual harassment complaints—that the full scope of Title IX became better understood. Some would say the Obama rules made it too easy since the process occurred within a quasi-legal framework operated by the school itself and removed many of the due process rights for the accused, as noted by Paul Du Quenoy in Newsweek:

"Notoriously unfair to the accused, the Obama-era Title IX guidance created what amounted to kangaroo courts in which respondents had limited access to evidence and no right to cross-examination, hearings, or legal counsel. University administrators were empowered to assign guilt on the basis of a "preponderance of the evidence" standard rather than the more rigorous "clear and convincing evidence" standard."

Changing or even attempting to change the regulations is a big deal and the resulting fallout is usually political. For example, when the Bush 43 administration held hearings addressing the loss of men's sport programs due to Title IX's proportionality requirements there was an uproar from activists claiming that changing the regulations would weaken the law and undermine women's sport participation. But after much ballyhoo the Bush administration ended up proposing no regulatory changes.

Obama's changes, which eliminated some due process elements for the accused in sexual harassment complaints, sometimes led civil courts to overturn findings against the accused—mostly men—because of due process violations. The Trump Department of Education restored many of the due process rights removed under Obama but these changes were ignored by many colleges and attacked by activists as being an assault on survivors of sexual assault. But whether you agree with these back-and-forth changes or not, their main focus was ostensibly to protect women and the educational opportunities available to them. 

The new Biden proposals remove many of the Trump era regulations and take an ominous and common sense defying turn by including protections for gender identity. This will effectively negate any protections women enjoyed under previous regulations because it dismisses the very idea of a woman, thus making Title IX devoid of purpose. If it's not protecting women then who is it protecting?

Mr. Biden's views on transgender participation in sport are well known and although the regulations that have been released do not address sport participation specifically—they are expected to come later—it's not realistic to expect a common sense approach from an administration that has, on several occasions, reiterated a student's right to participate in sport as their "authentic self," which is nothing more than an ideological attack on objective reality.

In the aftermath of the Lea Thomas incident, arguments that trans women should be allowed to compete in women's sport make less and less sense. What little support there was for the empty notion that trans women are women has shifted instead to finding a policy more suitable than blanket inclusion. While there was plenty of opposition to allowing Lea Thomas to participate as she did, the fact that she did compete may actually be the best thing in the long run because it illustrated, especially to those who were initially disinterested, just what an ill-conceived and dumb policy it truly is to allow trans women in women's sport competition. It may have been the trans gender movement's jump the shark moment. The trans movement certainly didn't gain any new supporters, if anything it solidified and expanded opposition to a policy that is clearly flawed and based on nonsense ideology.

Riley Gaines, a female athlete from the University of Kentucky, swam against Lea Thomas at the recent NCAA championship and had this to say on the anniversary of Title IX:

"Fifty years ago, pioneering women and men fought for Title IX’s passage. They knew their efforts would pay off by giving girls and women like me the opportunity to have our own sports category protected under federal law. The results have been profound. An entire youth sports ecosystem for girls has blossomed, giving countless females the same chance to develop skills critical to achieving equality in the workplace with their male counterparts. A recent Ernst & Young study found that fully 94% of female business executives participated in sports as girls—making sports participation the most straightforward path to business success as an adult."

Biden's new regulations are still proposals at this stage and so far they have elicited over 200,000 public comments (a record) mostly from parents concerned about how these new regulations will affect their daughters opportunities, privacy, and facility usage in their schools as well as their impact on women's sports. Civil rights and gender issues have become political shibboleths in the United States. Instead of proposing changes that might actually improve the application of Title IX, the Biden administration is codifying woke ideology that will only weaken it or, worse yet, make it irrelevant.