Last Friday, the Biden administration quietly dropped 1,577 pages of regulations that redefine sex to include “gender identity,” gut due process protections and limit free speech for millions of students from kindergarten through college.
The change rightfully grabbing headlines is the administration’s assertion that treating a student, of any age, as his or her biological sex constitutes “discrimination” and “harm” that is forbidden by federal law. That means schools that separate boys’ and girls’ locker rooms, bathrooms, and sports teams (more on that in a moment) teams will potentially lose their funding.
This doesn’t just apply to universities, where the students are adults, but all the way down into the K-12 system, forcing minor girls to have to share any previously single-sex facility with biological males.
The Biden administration has said it intends to carve out sports for a separate rulemaking later on – read: after the election – but this is the most transparent of political fig leaves. The plain language of the rule tells schools that treating a boy as a boy is forbidden.
And while Biden officials claim to have separated out sports for special treatment, likely because of the popularity of state laws ensuring fair single-sex competition in their tracks and pools, the administration has already behaved the exact opposite in federal court.
The federal government filed a brief in the Fourth Circuit asserting explicitly that West Virginia’s state law keeping women’s sports female-only is a violation of Title IX.
If nothing is done to reverse these changes to Title IX, either by successful challenges in court or through Congress and the democratic process, telling Lia Thomas he must compete against his fellow men will likely be “illegal” when these regulations go into effect on Aug. 1.
Even worse, schools will have an obligation to punish what federal law will now consider illegal discrimination, which means that any brave girls who speak out or refuse to compete with biological males will be potentially subject to sanction, lest the school lose federal funding.
But twisting a women’s rights statute into a weapon to take away girls’ privacy, opportunities, and safety isn’t even the end of the new Title IX changes. The rule also reverses due process protections for college students put in place by the Trump administration, ensuring procedural fairness guarantees like the right to an unbiased adjudicator, the right to know the specifics of what you’re accused of committing, and the right to representation.
Hundreds of young men have vindicated these basic due process rights in federal courts, but the Biden administration is now greenlighting a return to kangaroo courts on campus for those accused of sexual misconduct. It’s worth pointing out that Joe Biden himself did not submit to the kind of Star Chamber hearing he’s demanding for college students when accused of sexual assault by Tara Reade.
Finally, the new regulations also make worrying incursions into what courts have clearly defined as protected speech. First, because the rule defines treating someone as the sex they actually are as discrimination, it potentially encourages schools to punish even minor students who “misgender” a fellow. Second, the rule returns to an unconstitutionally vague Obama-era definition of what constitutes “harassment,” opening the door to sweep in all kinds of subjectively offensive speech.
Each of these changes alone would constitute a five-alarm fire. Put them together and you have a massive regulatory overreach affecting the lives and constitutional rights of millions of Americans.
All this from a statute that merely bans discrimination “on the basis of sex” in educational institutions that take federal funds. The executive branch and unelected bureaucrats do not have the power to singlehandedly rewrite civil rights law, and turn the plain meaning of Title IX on its head, eliminating protections for both women’s and men’s rights with the stroke of a pen.
Fortunately, the current Supreme Court has been more skeptical of this very kind of uncontrolled agency power, which circumvents the democratic process and separation of powers. Independent Women’s Law Center is proud to be one of the many organizations that will no doubt challenge these unconstitutional regulations, and states like Louisiana and Florida have already announced that they will not be complying, launching their own cases in court.
Ultimately, though, what can be done by the “pen and the phone” can be undone the same way by a new chief executive, or Congress can exercise its powers under the Congressional Review Act to reverse these regulations.
In the meantime, the ability of women and girls to safely participate in their educations, and the constitutional rights of students, teachers, and professors alike, hang in the balance as we get closer to the election in November.
