Title IX

Biden’s Title IX Final Rule and Proposed Athletics Rule Will Destroys Women’s and Girl’s Sports

For over 50 years, Title IX has leveled the playing field for millions of female athletes who wouldn’t have otherwise had the chance to compete in a school sport. Indeed, female participation at the high school level has grown 1,057 percent and at the college level by 614 percent.

In the face of this half century of progress, the Biden Education Department will now require schools, colleges, and universities that receive federal funds to allow students to participate in school athletics consistent with their “gender identity.”

In addition to ED’s Final Rule, which expands Title IX’s definition of “sex” to  include “gender identity” no matter the context—including playing fields, locker rooms, and showers—the Biden Administration has proposed yet another rule (the “Title IX Athletics Rule”) to allow male athletes who identify as female to participate in women’s and girls’ athletics from elementary school through intercollegiate competition. ED has not yet finalized its Title IX Athletics Rule.

Biden’s Proposed Title IX Rule Tramples Parental Rights in K-12

Any Title IX regulation must uphold the right of parents to know what happens in the classroom. Parents, not school officials, have the right to direct the education, healthcare, and treatment of their children and to teach their children about issues of sex and gender identity without interference from school districts.

But the Biden Education Department’s Title IX Final Rule undermines parental rights by requiring all schools, including public elementary and secondary schools, to accept a student’s gender identity without parental approval or knowledge.  Without notifying a student’s parents or obtaining their agreement, this requirement will allow school officials to provide counseling to one’s child about gender identity issues, to allow the child to choose his or her gender identity without regard to biological sex, and to refer a child for medical attention.

Biden’s Proposed Title IX Rule Erodes Due Process for the Accused and Protections for Survivors

A fair, legally binding framework for investigating and adjudicating sexual harassment and assault claims under Title IX protects everyone. That’s why the Title IX regulations published in 2020 took historic action to define sexual harassment, including sexual assault, as unlawful sex discrimination and codified into law due process protections for the accused. The 2020 Title IX regulations also for the first time imposed regulatory requirements on public elementary and secondary schools to investigate and adjudicate sexual harassment, including sexual assault, in our nation’s public schools.

But the Biden Education Department’s new Title IX Final Rule sends us back to the days when due process was thrown out the window, ‘Kangaroo Courts” were the norm on college campuses across the country, and survivors of sexual assault were forced repeatedly to relive their trauma. The new Final Rule allows the notorious “single investigator” model, where a single individual investigates, prosecutes, and adjudicates a sexual harassment claim, and requires the use of a minimal standard of proof. Ignoring binding court rulings, the Education Department also allows colleges and universities to dispense with hearings, as well as cross-examination by advisors, in Title IX disciplinary proceedings.

Biden’s Proposed Title IX Rule Threatens Free Speech and Academic Freedom on Campus

Any regulation under Title IX must ensure that its grievance process is not used to punish free speech in an academic context, even when such speech is offensive or an opinion that someone does not wish to hear. That’s why the 2020 Title IX regulations shield constitutionally protected speech and expressive conduct from Title IX enforcement unless a reasonable person would find it so severe, pervasive, and objectively offensive that it denies a person equal educational access.

But the Biden Education Department’s Title IX Final Rule uses a definition of sexual harassment so broad and sweeping that it will require school officials to police the use of pronouns and return Title IX to the “bad old days” when it was twisted into a de facto campus speech code that canceled debate, shut down free speech, and severely eroded academic freedom.