Biden’s New Title IX Rule Is Worse Than Expected

Biden’s New Title IX Rule Is Worse Than Expected

The Department of Education has recently unveiled its much-anticipated revision of the Title IX rule, marking a significant overhaul of the 50-year-old civil rights legislation, which is poised to dramatically alter the landscape of sex equality in education.

Originally a succinct single sentence, Title IX of the Education Amendments Act of 1972 unequivocally prohibits sex discrimination in any educational program receiving federal funding, irrespective of the funding's source or the institution's status.

Even private schools, regardless of their level of federal support, are obliged to adhere to this mandate.

However, the Biden administration has reinterpreted this longstanding prohibition on sex discrimination, extending it to encompass a broader range of factors, including "sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity."

This expansive redefinition not only undermines fundamental constitutional freedoms, such as freedom of speech, but also undermines the very essence of the protection Title IX was initially designed to provide for women.

Under the sweeping new Title IX rule introduced by the Biden administration, any educational institution receiving federal funding, whether at the K–12 level or in higher education, would be required to allow biological boys who identify as girls access to girls' facilities such as bathrooms, locker rooms, housing, sports teams, and any other sex-separated educational programs or offerings. Similarly, facilities designated for boys would need to accommodate biological girls who identify as boys.

Moreover, the rule undermines due process protections for students accused of sexual misconduct by eliminating rights such as the ability to call witnesses, present evidence, or have legal representation during investigations. It also encroaches upon the First Amendment by compelling teachers and peers to use a student's "preferred pronouns."

Additionally, K-12 schools are mandated to accept a child's gender identity without parental notification or consent.

Although the Education Department has deferred addressing a second Title IX rule specifically pertaining to athletics, the Biden administration's assertion that sports are excluded from the current rule is misleading. By expanding the definition of "sex" to include "gender identity" and applying the rule to all "extracurricular activities," the traditional concept of male and female athletic teams is poised for obsolescence.

Critics argue that the Department of Education's interpretation of Title IX lacks textual support within the title, its implementing regulations, or the legislative history. While Congress had the opportunity to include "gender identity" in the definition of "sex" during the 1987 amendment of Title IX under the Civil Rights Restoration Act, it chose not to do so.

Executive agencies are authorized solely to promulgate rules or regulations that interpret or implement laws passed by Congress, rather than create entirely new laws—an aspect seemingly overlooked by the Department of Education.

With legal challenges seemingly inevitable, organizations like the Independent Women’s Law Center have already indicated their intent to pursue litigation against the Department of Education, with more likely to follow suit.

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