Biden could permanently bench female athletes

The Biden administration is poised to complete its radical rewrite of the U.S. Department of Education’s regulations on Title IX, the 1972 law that prohibits discrimination on the basis of sex in education. To label the administration’s proposed changes as highly controversial would be an understatement. One seismic change would expand Title IX’s prohibition on sex discrimination in education to include "gender identity" — a fundamental reworking of Title IX that would be catastrophic for female athletes. 

After the 2020 elections, close observers expected the incoming administration to dismantle the due process and free speech Title IX rules finalized by Secretary of Education Betsy DeVos in May 2020. In regulations proposed in 2022, the Biden administration proposes not only to gut those reforms but also to bar gender-identity discrimination, which, notably, it fails to define in the proposed rules.  

(For a glance at gender identity’s many permutations and the endless headaches awaiting America’s educational institutions, interested readers should consult the always helpful, DEI-compliant Wikipedia, which includes identities ranging from "Abinary" to "Xenogender.") 

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With the 2022 proposal, President Joe Biden would have the federal government compel schools, colleges, and universities to allow biological males who "identify" as females to compete against female athletes. This change would affect any education program funded by the Department of Education — public schools, charter schools, higher education, proprietary schools, recreation centers, and the like. Failure to comply would violate the administration’s unfounded interpretation of federal civil rights law and invite investigations, litigation, and the possible loss of federal funds. A half century of progress in women’s and girls’ sports is at stake. 

University of Pennsylvania swimmer Lia Thomas and Kentucky swimmer Riley Gaines reacted after finishing tied for 5th in the 200 Freestyle finals at the NCAA Swimming and Diving Championships on March 18th, 2022, at the McAuley Aquatic Center in Atlanta, Georgia. (Rich von Biberstein/Icon Sportswire via Getty Images)

These proposed changes sparked a firestorm of protest and prompted heated resistance across ideological lines, making unlikely allies of social conservatives and feminist liberals. Illustrating the controversy, the Education Department, charged with the messy task of shepherding the 2022 proposal through the federal regulatory process, received over 240,000 comments during the proposal’s 60-day public comment period — a record for that agency.     

With the congressional elections looming, the 2022 proposal also created a political pickle for the administration, as appeasing its progressive base by opening up female sports to trans athletes would alienate moderate voters who support women’s athletics.  

Faced with this dilemma when unveiling the proposal, the administration disingenuously announced that the plan in fact had nothing to do with athletics and that it would conduct new rulemaking "to address Title IX’s application to athletics" — as if this feint inoculated women’s sports against the deleterious effect of the 2022 proposal’s gender-identity language. 

Unfortunately for the administration, this second regulatory package, focused on athletics and released in April 2023, pleased no one. Prompting more than 156,000 public comments, the 2023 athletics proposal resurrected the eclectic opposition to the 2022 proposal and spawned new opponents, including members of the trans community (arguing that the plan does not go far enough to protect trans rights) and school systems and school boards (complaining about its complexity, administrative burdens, and compliance costs).  

With the 2022 proposal nearly final, the administration recently confirmed that its 2023 athletics proposal remained under review. Politically toxic rules like these often end up in "regulatory purgatory," an endless review within the federal bureaucracy. 

In any event, the public should ignore the administration’s spin that the 2022 rulemaking proposal was never intended to affect athletics. The proposed text and the administration’s current enforcement posture and litigation position on gender identity and schools prove otherwise. 

To start, the 2022 proposal adds a provision to "clarify" that Title IX’s sex-based discrimination prohibition includes gender identity: "Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity." This change would clearly bar gender-identity discrimination in education. 

The drafters also would add a provision declaring that institutional policies or practices that prevent someone from participating in an education program or activity (including athletics) consistent with his or her gender identity would subject that person to more than de minimis harm on the basis of sex. This means that schools would violate Title IX simply for refusing a student’s participation in athletics conforming with his or her gender identity; nothing more need be shown. 

Hailey Davidson competes in the NXXT Women's Championship golf tournament at Rio Pinar, in Orlando Florida, Wednesday, January 24, 2024. Davidson is a transgender golfer facing criticism for competing in women's golf. (Fox News Digital)

It’s true that the administration would leave virtually untouched the longstanding regulation that permits sex-separated athletics. But nothing in the 2022 proposal excepts athletics from the broad reach of the gender-identity language or the provision that policies and practices prohibiting students from participating in school activities in accordance with their gender identities would constitute more than de minimis harm, in violation of Title IX. 

Because the department’s proposed rule expands "on the basis of sex" to include gender identity and thus bars discrimination in athletics on that basis, the administration would require schools to allow a biological male who identifies as a female to compete in women’s and girls’ athletics.  

The administration’s 2023 proposed athletics rule should thus be seen for what it is: a regulatory "head fake" prompted by election-year concerns to convince the public that the 2022 proposal has nothing to do with sports. 

Of particular concern, the 2022 proposal would also override state laws that designate sports categories on the basis of biological sex, not gender identity. Nothing in the 2022 proposal protects, or allows states to protect, athletes separated by biological sex; it clearly states that "[t]he obligation to comply with this part is not obviated or alleviated by any State or local law or other requirement."  

State laws protecting the rights of biological girls and women to compete in scholastic sports against other biological girls and women would certainly provoke the federal government’s investigative apparatus and related enforcement efforts. The civil rights plaintiffs’ bar would certainly follow.   

Department of Justice efforts on behalf of the Education Department further underscore these concerns. As a litigation matter, the future is now, because the administration already treats Title IX as if it prohibited gender-identity discrimination. Indeed, within days of taking office, the Biden Education Department pulled back a Title IX investigation of a high school athletic conference and six Connecticut school districts commenced under DeVos due to their failure to require separated sports teams based on biological sex. 

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The administration quickly followed that move with a legal notice that Bostock v. Clayton County applies to Title IX. (The Supreme Court ruled in that case that Title VII of the Civil Rights Act of 1964 barred employment discrimination against homosexual or transgender employees; the ruling did not concern Title IX and did not interpret "sex" as used in Title VII to mean gender identity.)  

The Biden Justice Department continues to defend this legal interpretation in court, even where it is not a party. When the 2022 proposal is finalized, the administration will be able to enforce it as law. 

Because the department’s proposed rule expands "on the basis of sex" to include gender identity and thus bars discrimination in athletics on that basis, the administration would require schools to allow a biological male who identifies as a female to compete in women’s and girls’ athletics.  

The stakes are high. Female athletes face unfair competition, reduced participation, and the loss of championships, awards, prizes, scholarships, and other recognition, as well as possible injury or worse. For institutions, the most worrisome outcome is the withholding of federal funds if they fail or refuse to adhere to the final Title IX regulations.  

Before COVID-19 "emergency" funds, public elementary and secondary schools received about 8 percent of their funding from federal agencies; most public postsecondary institutions would be in dire straits without access to federal student aid. Regardless of the level of support, accepting federal resources will expose these institutions to civil rights investigations, enforcement actions by the federal government, and litigation filed by students denied spaces on sex-separated teams that accord with their gender identities. 

Of course, the administration can make one of two simple changes in its final regulations to resolve these concerns and demonstrate that it meant what it said when it argued that its 2022 proposal was not intended to affect athletics: remove the gender-identity language from the final regulations; or, failing that easy solution, insert new language that excepts women’s and girls’ athletics (and female-only spaces) from the ravages of the gender-identity language.  

Given the immense political pressure on the administration to appease the radical Left’s policy preferences in this area, both scenarios seem unlikely. In that event, it will fall to a future Republican administration to invest the time and resources needed to rescind the regulations. 

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A former senior counselor to the U.S. Secretary of Education, Robert S. Eitel is President and Co-founder of the Defense of Freedom Institute for Policy Studies.