Biden administration redefines sex discrimination in Title IX to include ‘gender identity’

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Washington, D.C. Newsroom, Apr 19, 2024 / 15:30 pm (CNA).

President Joe Biden’s Department of Education issued new regulations on Friday, April 19, that prohibit discrimination based on a person’s “gender identity.”

The new rules, which will go into effect on Aug. 1, redefine the prohibition on sex discrimination for schools and education programs that receive federal funding — including K-12 schools and colleges and universities. Under the new interpretation of the Title IX protections, those rules now apply to any form of discrimination that is based on a person’s self-purported “gender identity.”

According to the executive summary of the Title IX revision, the changes are meant to “clarify that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

The summary further states that, except in certain situations, education institutions receiving federal funding cannot carry out “different treatment or separation on the basis of sex,” which includes a prohibition on any policy or practice that “prevents a person from participating in an education program or activity consistent with their gender identity.”

The new Title IX rules, however, do not have any direct rules related to transgender athletes in girls’ and women’s sports. About two dozen states have restricted participation in high school and college women’s sports to only biological women. It’s unclear whether these rules would violate the new interpretation of violations based on sex discrimination.

It’s also unclear how these rules would affect state laws that restrict bathroom and locker room access to a person based on his or her biological sex rather than gender identity or whether it would jeopardize free speech in relation to the use of a person’s preferred gender pronouns when those pronouns do not align with the person’s biological sex. The new rules did not clearly explain how the new definition would apply to such situations.

Alliance Defending Freedom Legal Counsel Rachel Rouleau expressed concerns that the Biden administration’s new definition of sex discrimination would negatively impact the rights of girls and women in education institutions.

“The Biden administration’s radical redefinition of sex turns back the clock on equal opportunity for women, threatens student safety and privacy, and undermines fairness in women’s sports,” Rouleau said in a statement on Friday. 

“It is a slap in the face to women and girls who have fought long and hard for equal opportunities,” she added. “The administration continues to ignore biological reality, science, and common sense, and women are suffering as a result. The administration’s new regulation will have devastating consequences on the future of women’s sports, student privacy, and parental rights.”

Sarah Parshall Perry, a senior legal fellow at the Heritage Foundation and former senior counsel at the United States Department of Education, said in a statement that Title IX is being “manipulated” by “gender activists and woke politicos” through these actions. 

“Under the new rule, girls and women will no longer have any sex-separated bathrooms, locker rooms, housing accommodations, or other educational programs,” Perry said. “Women’s sports are likely endangered too. Any education institution, including many private schools that receive even nominal federal funding, will be affected by this rule.”

Perry suggested that federal lawmakers should challenge the department’s actions “by clearly defining men and women” in legislation.

When Congress first added Title IX’s sex discrimination provisions into federal law in the 1970s, the goal was to give girls and women equal access to education. The law itself does not make reference to “gender identity.”

Other changes included in the administration’s rules related to Title IX include the prohibition on discriminating against a girl or a woman based on her being pregnant, her choosing to have an abortion, or her recovery from pregnancy. The revision also changes the process by which sexual assault allegations are handled.