Critics: Proposed Title IX changes would threaten viability of women’s sports

(The Center Square) – The Biden administration has proposed sweeping changes to expand the nation’s law prohibiting sex discrimination in the nation’s schools to include gender identity and sexual orientation. Final action on the rule is not expected until March, but legal challenges likely will arise upon its implementation. 

The U. S. Department of Education says the rules protect students and try to strike a balance between concerns over fairness and safety with the benefits of allowing transgender students to play. Critics, however, say the rule burdens girls and illegally rewrites the law.

Jennifer Braceras, the director of the Independent Women’s Law Center and a former member of the United States Commission on Civil Rights, told Chalkboard News that the Biden administration’s proposed changes would change the civil rights statute’s implementation and meaning. (Chalkboard News is published by the Franklin News Foundation, which also publishes The Center Square.)

“Title IX is a very specific statute, and it does only one thing: prohibit schools that accept federal dollars from discriminating on the basis of sex,” Braceras told Chalkboard. “Although Title IX is limited as to who it covers, it is broad in that it covers all aspects of the educational experience — including sports.”  

“In most educational areas, separating males and females is considered discriminatory,” Braceras said. “But sports are different from academics.

“Where sex is irrelevant to academics, it is often dispositive with respect to athletics because males have a clear biological advantage,” Braceras said. “That is why, for the past 50 years, the regulations that enforce Title IX have permitted schools to offer single-sex athletic teams.

“Unfortunately, however, the Biden administration has proposed a rule that, if adopted, would reverse the presumption that schools can offer separate sports teams for males and females,” Braceras said. “Under the proposed rule, women’s sports aren’t just for women anymore – they are for anyone who says he identifies as a woman unless a particular school can demonstrate that keeping a particular team female meets ‘important educational objectives.’” 

The Biden administration has proposed one larger rule that would redefine sex discrimination to include gender identity and sexual orientation for federally funded academic institutions. There’s also a second rule that applies specifically to sports and athletic teams for those institutions. 

The broader changes proposed to Title IX govern a number of protections for students including pregnancy discrimination, sexual harassment, parental rights, how schools are required to take action, retaliation for filing a complaint, improve grievance reporting procedures and changes to create protections for gender identity and sexuality.

That sweeping rule change would, among other things, prohibit recipients of federal funds from “adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity.”  

The athletic-specific rule would prohibit blanket bans on transgender athletes participating in sports that align with their gender identity. It would put the onus on school districts and institutions of higher learning to create case-by-case guidelines for sports and athletes.

“If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity, those criteria must, for each sport, level of competition, and grade or education level: be substantially related to the achievement of an important educational objective, and minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied,” the proposed rule states.

“Obviously, developing detailed policies for each and every team will be administratively burdensome and legally risky for schools,” Braceras said. “Moreover, schools will have to somehow show that they have ‘minimized the harm’ to trans students – a subjective test without clear contours.

“No school superintendent wants to litigate this issue with Washington multiple times at the risk that the Department will revoke federal funding,” Braceras said. “So most schools are likely just to let males who say they identify as women play on women’s teams, no questions asked. “

“So, in effect, the new rule places the burden of proof on the female athletes who object to men in their sport,” Braceras said. 

The rules purportedly strike a balance between the interests of transgender students and players who will be competing against opponents who may be of the opposite biological sex. 

“The Department recognizes that prevention of sports-related injury is an important educational objective in recipients’ athletic programs and that – as courts have long recognized in cases involving sex-separate athletic teams – fairness in competition may be particularly important for recipients in some sports, grade and education levels, and levels of competition,” the proposed rule reads.

“The administration seems to think that they can find a way to let biological males play women’s sports and still ensure fairness,” Braceras said. “But all the talk of fairness sort of misses the point because Title IX isn’t a ‘fairness in sports’ law. It’s an equal opportunity law concerned with making sure that females have opportunities previously denied them.

“So even if there were a way to ensure a level playing field when biological men participate in women’s sports – and there is not – the proposed rule would contradict the statute’s equal opportunity mandate,” said Braceras. “That’s because the world of competitive sport is a zero-sum game in which some athletes make the team and others do not.”

The Office of Management and Budget says the broader rule change to Title IX will be finalized in May 2024. Chalkboard previously reported that the timeline had been pushed for the athletic rule until March 2024. 

For Braceras, the timing is more than just bureaucratic delays. 

“I believe that the administration is deliberately delaying releasing the final rule for as long as it can so that the opponents of the rule can’t formally challenge the administration’s actions in court,” Braceras said.