Proposed Title IX change would render the policy a ‘moot point’: Betsy DeVos
Former Education Secretary Betsy DeVos reacts to a proposed change in Title IX and comments on the transgender athlete debate.
The Biden administration's recently finalized updates to Title IX will erase advancements biological women have achieved in today's society through its broad interpretation of "sex," conservative legal experts say.
"It's absolutely a fantastical upending of our system of constitutional protection," Sarah Parshall Perry, a senior legal fellow at the Heritage Foundation, told Fox News Digital. "Not a lot of people are recognizing all of the permutations."
Title IX of the Education Amendments of 1972 was originally a 37-word provision barring schools that receive federal funding from discriminating against students on the basis of sex, ensuring equal opportunity for women in the educational setting.
The latest version of the regulation, which is on track to go into effect Aug. 1, expands that reach to prevent discrimination and harassment based on gender identity and sexual orientation. Those additions will have significant implications for women-only spaces, free speech and sports, despite the Biden administration's claim, conservative legal scholars fear.
Head Start preschool programs, K-12 schools, private colleges and public universities risk losing federal funding if they refuse to comply with the Title IX changes.
A trans rights protester holds a sign opposing conservative policies surrounding gender ideology. (Brett Coomer/Houston Chronicle via Getty Images)
"As a condition of receiving federal funds, all federally-funded schools are obligated to comply with these final regulations and we look forward to working with school communities all across the country to ensure the Title IX guarantee of nondiscrimination in school is every student’s experience," a Department of Education spokesperson told Fox News Digital.
Perry said Title IX was applauded as the crown jewel of the feminist movement in the 1970s because it directly provided equal opportunity to women. But the Biden administration, she said, is turning the rule on its head by allowing transgender women into female-only spaces and activities.
"That does not only a disservice to the gains of the women's movement, but it really puts a target on the back of women who, for example, need to avail themselves of separate spaces in prison, need to avail themselves of separate spaces in domestic abuse shelters, need the equality guaranteed to them in sports," Perry said.
"The evisceration of legal womanhood is problem number one. That is the tip of the spear as far as I'm concerned," she added. "I think the additional importance is taking certain classes of individuals and elevating them above, for example, the guarantees of the Constitution or the interests of others."
Ilya Shapiro, the director of constitutional studies and a senior fellow at the Manhattan Institute, told Fox News Digital that Title IX's expansion over the past 50 years has added complexities.
"Unlike other kinds of civil rights laws … Title IX was specifically about women's opportunities, and especially with this innovation, it's become kind of more of a general purpose discrimination, harassment [using] nebulous rules that can ensnare lots of people unwittingly," he said.
GLAAD, the largest LGBTQ media advocacy organization; the Human Rights Campaign, which advocates for the LGBTQ+ community; the American Civil Liberties Union (ACLU); the American Federation of Teachers (AFT); and the National Education Association (NEA) did not respond to multiple requests for comment.
Protesters rally in support of trans rights. (Brett Coomer/Houston Chronicle via Getty Images)
"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," Secretary of Education Miguel Cardona said in a statement announcing the update. "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."
Female-Only Spaces
Advancements achieved during the feminist movement now hang in the balance under the new Title IX rules, Perry said. The new language, some parents and students say, creates safety concerns since it allows biological men who identify as women into female-only spaces, including restrooms, locker rooms, dorm rooms and overnight hotel rooms for sports teams.
"By essentially dismantling the notion of biological reality and immutability, something that the Supreme Court has for decades determined, is the bright line for determining protected classes under the Constitution and under civil rights law," Perry said. "Just deciding that you will go from an immutability test to a subjective self-identity test absolutely flushes the entirety of civil rights law in our American canon down the toilet."
In other words, the Biden administration's Title IX changes will eliminate women as a legally protected class, she said. But the Biden administration said it promotes accountability and fairness "by requiring schools to take prompt and effective action to end any sex discrimination in their education programs or activities, prevent its recurrence, and remedy its effects."
DESANTIS TOUTS FLORIDA LAWSUIT SEEKING TO BLOCK BIDEN'S TITLE IX CHANGES
Free Speech Concerns
Perry also believes free speech in education will be more limited under the Title IX updates. Discrimination claims, she said, could be brought in response to so-called misgendering.
"If you read the fine print, it said an individual, based on gender identity must exhibit ‘more than de minimis harm,’" Perry said. "That could be something as easy to demonstrate as having your feelings hurt or proving that not being able to dorm with a biological woman when you're a man is somehow depriving you of equal access to education."
Shapiro said these changes play into the idea that they're more than a battle over bathroom access.
"They see this as kind of the next front in civil rights battles and the arc of progressive history bending in this direction and those kinds of ideological commitments," he said.
But teachers unions like the American Federation of Teachers say the changes keep students and educators safe and ensure they're treated with respect.
"With these new rules, the Biden administration has sent a message that an education free from discrimination remains as vital now as it was when Title IX was first enacted over 50 years ago," AFT President Randi Weingarten said in a statement when the updates were finalized.
Biological Men in Women's Sports
One of the most highly contested policy issues is transgender participation in sports. Even though the Biden administration has said that sports are not implicated in its latest iteration of Title IX, Perry believes the issue is inherently part of the new rules, especially considering the word "athletics" is mentioned 31 times in the 1,500-page rule.
The Biden administration argues that its updates to Title IX don't apply to sports. But conservatives scholars point to phrasing in the rule changes that suggest otherwise. (Anna Moneymaker/Getty Images)
The ruling specifically states that "Title IX covers all aspects of the recipient’s education program or activity, including extracurricular activities."
"They can tell us all they want that sports are not included, but local school administrators, they're going to face the untenable choice of going: we know what the government's position is, we know the terms athletics and extracurricular activities are included, and we already know how they've told us they will interpret the term sex to include gender identity," Perry said. "So that's really a head fake."
The Biden administration previously announced plans to directly open the door to trans athletes through Title IX, though those plans have been slow-walked in favor of the broader updates. The Women's Sports Foundation, a nonprofit that supports female sports participation, had praised that initial proposal.
In a statement, the group last year said it's "encouraged to see the proposed rule would clarify that categorical bans of transgender athletes are impermissible under Title IX. These broad bans, which now exist across 21 states, limit opportunities and harm the development of both cisgender and transgender girls and women."
FLORIDA, OKLAHOMA INSTRUCT SCHOOLS TO IGNORE BIDEN'S TITLE IX CHANGES, PENDING LEGAL CHALLENGES
What Happens Next
Before the rules can go into effect on Aug. 1 ahead of the 2024-25 school year, both chambers of Congress will have the opportunity to mount a challenge under the Congressional Review Act, which allows Congress to overturn final rules issued by federal agencies.
While it's unlikely the Democratic-controlled Senate would pass such a resolution, Perry expects President Biden would veto it, given his repeated goal to protect trans communities. In the off-hand chance the challenge isn't blocked or the veto is overridden, the administration would be prohibited from implementing the rule or a similar one.
Biden issued an executive order his first day in office directing every federal agency to prohibit sex discrimination on the basis of gender identity and sexual orientation, which Perry said indicates the administration's commitment to altering the current regulations.
"They are banking on the fact that John Q. Public, or John Q. Administrator or John Q. Student is not going to pay attention to the fine print, but with an effective date of August 1st of this year, it is going to come for every federally funded program in the country," Perry said.
But she believes public interest litigators and attorneys general are going to bring suits on behalf of individuals who can prove they've experienced discrimination under this new rule either by forced speech codes, "misgendering" or because they've lost roster spots to biological men.
The Biden administration's updates to Title IX received significant support — and criticism, with 26 GOP-led states filing suit. (Mark Makela/Getty Images)
"They will have an opportunity to bring legal action in the hopes of getting a preliminary injunction," she said. "That would essentially have the effect of suspending the law before the beginning of the school year. And while it works its way through the courts, it would go through a series of volleys on a litigation basis between both parties against the Department of Justice and the attorneys general or the private individuals bringing suit."
Already, 26 GOP-led states have sued the Biden administration to block the Title IX changes.
One coalition's suit argues that the Department of Education is trying to "politicize our country’s educational system to conform to the radical ideological views of the Biden administration and its allies."
Republican Alabama Attorney General Steve Marshall, whose state is part of a separate suit, said the president "has brazenly attempted to use federal funding to force radical gender ideology onto states that reject it at the ballot box" since he took office.
Shapiro, before many suits were filed, expected legal challenges given the Title IX updates' ambiguous language.
"Some key terms are just not defined, so there's going to be a lot of battles over that," Shapiro said. "Ultimately, though, I think the end game is going to be the Supreme Court’s disposition. They have eschewed many of these gender identity issues for a long time."
"At some point, the Supreme Court is going to have to determine if indeed, as the drafters and the founders and the ratifiers of Title IX meant in 1972, that sex does mean biological distinctions between male and female," he added.
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