At least 15 Republican-led states have sued the Biden administration after the Department of Education released revised Title IX regulations, arguing the move will strip females of single-sex spaces and males of due process rights. Since mid-April, Texas, Ohio, Virginia, and Florida are among the states contesting the administration’s revision of the regulations, which prohibit sex discrimination in federally funded schools and higher education programs.
President Joe Biden is making good on his 2020 campaign promise to transgender voters. The rules will take effect Aug. 1. But this radical revision pits traditional views on gender, sexuality, and due process against the administration’s adoption of the left-wing agenda, which will undoubtedly result in dozens of legal challenges at the local and state level.
Biden sets off string of lawsuits
The Texas lawsuit takes aim at executive decisions and the idea that Title IX was rooted in biological distinctions between sexes that this progressive administration wants to ignore. “Stymied in its attempts to implement this agenda through informal agency guidance, and unable to amend Title IX through the legislative process, the Department has now formally amended the Code of Federal Regulations. This Final Rule tells States and other regulated parties that they must ignore biological sex or face enforcement actions and the loss of federal education funding,” the lawsuit noted.
Together, Louisiana, Mississippi, Montana, and Idaho have also sued the Department of Education. It’s a scathing indictment of federal coercion. “[The rule] is a naked attempt to strongarm our schools into molding our children … in the government’s preferred image of how a child should think, act, and speak,” the lawsuit added. “The final rule is an affront to the dignity of families and school administrators everywhere, and it is nowhere near legal.”
Surely the administration knew such regulations would trigger a bevy of lawsuits, and they have. Even in light of the Supreme Court’s Bostock v. Clayton County decision, which Biden used to support his changes, it’s hard to see how he will even benefit politically, as he surely won’t legally.
“The timing and the sheer number of courts that have been invoked here sort of stack the odds against the Biden administration because there are just so many hoops to jump through,” Josh Blackman, a professor at the South Texas College of Law Houston, told the Hill. “You have to basically beat every single one of them to win. And if any one of them vacates the rule, under the general understanding today, that vacates it nationwide.”
Title IX and equality for women
Passed in 1972, Title IX transformed athletic and educational opportunities for women and girls, finally offering them the boost necessary to begin education or athletics at the same starting place as males. It reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Biden’s new rule adds almost 1,600 words to that basic premise, flipping the biological definitions of gender and sex on its head, changing them to include gender identity, a concept that has only recently taken hold in American culture.
Intended to protect transgender people, Biden’s gambit may instead upend the natural, equal rights of females to have privacy, safety, and single-sex spaces in schools, college campuses, and locker rooms across the country. There are now few, if any, legal safeguards females have should they find themselves on the other side of this policy, whether it is privacy while using the bathroom or swimming at a meet against females.
“Bloated educational bureaucracies will waste no time in investigating and disciplining students and faculty for politically incorrect speech that now runs afoul of expansive, nebulous, and shape-shifting definitions of sex-based discrimination,” Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute, wrote at City Journal.
For an administration that has repeatedly pandered to progressive ideas that emphasize diversity, equity, and inclusivity, it’s ironic, even awful, that it embraced regulations that could set women back decades.
Biden refuels debate
Although the administration’s rules didn’t mention transgender athletes, Biden originally planned to include a provision that kept schools from enacting bans on students playing outside their biological sex. Explicit language to that effect has been put on hold, but some opponents think the revisions imply it already. At least 23 states bar transgender student-athletes from competing on sports teams inconsistent with their biological sex.
Athletic associations nationwide had already been struggling to reconcile women’s sports with progressives’ emphasis on the inclusion of transgender athletes. In March, 16 female athletes filed suit against the NCAA arguing its rules violate Title IX’s ban on sex-based discrimination. The NCAA sets the rules for over 1,000 colleges and universities. While the female athletes stand a fighting chance, Biden’s revisions don’t help.
On May 3, a couple of weeks after the rules were unveiled, Gov. Jim Pillen (R-NE) announced his state simply won’t comply with the new rules in light of what he believes his constituents want in women’s sports. “The Biden administration’s rewrite of Title IX is an affront to the commonsense idea that men do not belong in women’s-only spaces,” Pillen said in a press release. “Protecting our kids’ and women’s athletics is my duty. … The president’s new rules threaten the safety of women and their right to participate in women’s sports. Nebraska will not comply. We must fight against radical gender ideology and vigorously protect the rights of Nebraska women and girls.”
Alliance Defending Freedom, of Masterpiece Cakeshop v. Colorado Civil Rights Commission renown, has sued the Biden administration twice regarding the Title IX changes already, too. While it has long defended the right of females to compete in female-only spaces in the lower courts, Biden’s Title IX revisions add fuel to a flame it’s been fanning for years. On May 6, ADF asked to join an existing lawsuit on behalf of A.C., a high school athlete from West Virginia.
“The Biden administration’s radical redefinition of sex won’t just rewire our educational system. It means young girls will be forced to undress in front of boys in gym class, girls will share bedrooms with boys on overnight school trips, teachers and students will have to refrain from speaking truthfully about gender identity, and girls will lose their right to fair competition in sports,” ADF legal counsel Rachel Rouleau said in a statement. “Our client A.C. has already suffered the humiliation and indignity of being harassed by a male student in the locker room and on her sports team. No one else should have to go through that. But the administration continues to ignore biological reality, science, and common sense. This court deserves to hear from those most severely impacted by the administration’s attempt to rewrite Title IX.”
It’s hard to see how the Biden administration squares its new reading with the original Title IX or how decimating the future of sports for females helps them or him politically.
Due process effects
During the Trump administration, Education Secretary Betsy DeVos issued policies that revamped the way universities handled sex-crime allegations, doing away with “kangaroo courts,” bolstering the rights of the accused, and emphasizing a need for due process.
“We released a final rule that recognizes we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence, and due process,” DeVos said at the time in a call with reporters.
False claims of sexual crimes are rare but not nonexistent, and they can destroy a young person’s life and reputation. One could almost hear a collective sigh of relief among men and women on college campuses nationwide.
Biden’s new rules toss this out with reckless abandon, removing the right to a live hearing, the right to cross-examine the accuser, and the right to representation. Now, one person in the school’s administration can serve as the arbiter of justice, hardly an environment for due process to thrive.
“As bad as the redefinition of ‘sex’ is, what’s arguably even worse is the new rule’s subversion of due process and free speech. The Kafkaesque inquisitions that were the hallmark of Obama-era governance will now return with a vengeance,” Shapiro remarked.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
“If, when Joe Biden was accused of sexual assault by Tara Reade, he’d been afforded the same due process procedures he just approved for men accused on college campuses, he’d be in prison,” commentator Megyn Kelly posted on X.
Title IX lifted women and girls to a place of equal footing in terms of education and athletics — and to a place where even their differences are celebrated. Biden would destroy any recognition of these differences. Right now, the only tool conservatives have to combat these executive branch decisions is to challenge them in court.
Nicole Russell is an opinion columnist for USA Today. She lives in Texas with her four children.
