Biden Administration Redefines Sex in Title IX to Include ‘Gender Identity’
The Biden administration Friday released its final Title IX regulations that overturn the rules set by former President Donald Trump and expand the definition of “sex” in the realm of public education to include gender identity.
Title IX, the federal civil rights law that was enacted as part of the Education Amendments of 1972, prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government.
The Biden Education Department released an unofficial version of the final regulations, along with a fact sheet and a summary of the major provisions of the rules.
The new regulations, which are effective August 1, are concerned with the portions of Title IX that pertain to sexual harassment and discrimination, while rules covering transgender participation in athletics are expected to be finalized later this year.
According to the summary, the new rules clarify that “sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
The rules allow gender identity to surpass biological sex by “recogniz[ing] that preventing a person from participating in a recipient’s education program or activity consistent with their gender identity subjects that person to more than de minimis harm.”
“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation's schools free from sex discrimination,” said Biden Education Secretary Miguel Cardona. “These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.”
Assistant Secretary for Civil Rights Catherine E. Lhamon, who held the same position during the Obama era, added: “These final regulations clarify Title IX’s requirement that schools promptly and effectively address all forms of sex discrimination.”
National parental rights organization Parents Defending Education (PDE) filed a lawsuit last month against the U.S. Education Department for failing to disclose documents, requested under the Freedom of Information Act (FOIA), pertaining to communications it had with groups funded by left-wing financier George Soros. The documents requested pertained to the administration’s proposed Title IX rule.
PDE President Nicole Neily responded to the release of the new regulations Friday, calling them “interpretive jiujitsu” and anticipating another lawsuit against the department:
It is grotesque that the White House has chosen to capitulate to extremists in his party, sacrificing the First Amendment on the altar of Title IX and disregarding clearly established Supreme Court precedent on the definition of sexual harassment. Extending Title IX to cover gender identity means that schools will no longer have discretion over whether – or how – to provide certain services and activities to students on the basis of self-declared gender identity. Title IX was written in 1972 when ‘sex’ meant male and female, and no amount of interpretive jiujitsu permits a cabinet agency to rewrite the plain language of the law. Efforts to do so have failed repeatedly in Congress for one simple reason: such an expansion of law is deeply unpopular, with opposition to these changes spanning both political and racial lines. This betrayal of students will not soon be forgotten by American parents, and we look forward to suing the Administration over this policy soon.
The rules are founded upon the U.S. Supreme Court’s ruling in Bostock v. Clayton County, a case dealing with employment discrimination. In June 2021, the Biden education department declared it was “confirming” that Title IX “protects students from discrimination based on sexual orientation and gender identity,” in keeping with its “interpretation” of the 2020 decision, in which the Court held that “on the basis of sex” refers also to sexual preference and gender identity.
The Court ruled: “An employer who fires an individual merely for being gay or transgender violates Title VII.”
“[T]he Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex,” the education department interpreted.
Despite that reading of the Court’s ruling, however, four members of the U.S. Commission on Civil Rights wrote to former House Speaker Kevin McCarthy in March 2023, urging the House to “hold hearings regarding the Biden Administration’s deformation of Title IX of the Education Amendment of 1972 (‘Title IX’).”
“The Department of Education’s Office for Civil Rights [“OCR”] claims that the Supreme Court’s decision in Bostock v. Clayton County requires that Title IX’s prohibition on sex discrimination be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity,” the commissioners wrote in their letter, noting that the Court “explicitly did not extend its interpretation of Title VII’s prohibition on sex discrimination to Title IX or to bathroom access.”
The commissioners cited Justice Neil Gorsuch’s opinion in the case:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.
“The Office for Civil Rights has gone far beyond Bostock’s requirements,” the Civil Rights commissioners concluded.
Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC) said in a statement Friday the Biden education department “has placed Title IX, and the decades of advancement and protections for women and girls that it has yielded, squarely on the chopping block.”
“This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender,” Foxx added. “The rule also undermines existing due process rights, placing students and institutions in legal jeopardy and again undermining the protections Title IX is intended to provide. Evidently, the acceptance of biological reality, and the faithful implementation of the law, are just pills too big for the Department to swallow – and it shows.”