“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

— Title IX Education Amendments of 1972

On Friday, the Department of Education announced its new Title IX rule redefining sex to include subjective, self-declared “gender identity”. While the new rule includes changes that may be beneficial for LGB students and survivors of sexual violence, in fact the rule erases women and girls from a law passed to protect them, treating them as a problematic stumbling block to the desires of men and boys.

The new Title IX regulations consist of 1,577 deliberately confusing pages. WoLF has been in this fight from the beginning. We are only too familiar with how language is weaponized to serve misogyny's darkest purposes under the banner of inclusion. We're providing this legal analysis to help you understand what's happened, is happening, and what we can expect going forward.

Title IX Background

Title IX was enacted in 1972 to ensure both sexes are treated equally and fairly in educational settings. The impetus was to prevent sex-based discrimination against women. From the beginning, Congress has interpreted "sex" under Title IX as allowing differential treatment based on sex in some settings, including single-sex athletics, bathrooms, locker rooms, showers, and overnight accommodations. These interpretations ensure that women and girls have safe, equal access to educational opportunities. Single-sex provisions are critical for safety, dignity, and fairness, especially for women and girls seeking to avoid or heal from male violence.

While some of the more classic forms of sex discrimination have been successfully addressed or at least mitigated, we have seen in recent years dramatic efforts to limit women’s and girls’ access to educational opportunities in new ways. President Biden made it his Day 1 priority to permanently change the landscape of Title IX through an executive order signed only hours after he took office. The order required federal agencies and departments to take all steps to ensure that “federal anti-discrimination statutes that cover sex discrimination prohibit[s] discrimination on the basis of sexual orientation and gender identity.” The Biden administration issued a notice of proposed rulemaking (NPRM) in 2022, which was finalized last Friday. These will not be easily reversed by a future administration.

What does this rule mean?

The New Title IX rules take away legal protections based on sex, replacing them with protections based on the sex you claim to be, regardless of reality.

Sex has been redefined under Title IX to include gender identity. This sets up a conflict between women’s rights and the rights of those claiming a different gender identity than their sex who also want access to women’s sex-based rights. We have already seen this play out: gender identity wins. It has been vaulted, by design, to a supremely protected characteristic, placing it higher on the hierarchy of human rights than sex.

The new rule makes it impossible for schools to protect the rights of women and girls, and removes their longstanding route for recourse when their rights are violated.

Problems With Redefining Sex And Expanding It:

Conflating sex and “gender identity” (or indeed, defining sex as anything other than sex) corrupts of ability to detect and respond to certain regular issues related to sex discrimination such as pay disparity. In addition, playing with language is confusing: it will not be clear to students whether something labeled for women or girls actually is limited to women and girls based on sex, or whether they are also accessible to male classmates who self-identify as female. We find it disturbing that the Department ignored repeated requests from the public to clarify the definitions of these and other terms, preferring to leave it ambiguous so as to allow the broadest “protections” based on “gender identity.”

Sex Stereotypes

The new rule also adds “sex stereotypes” to the list of things covered under sex discrimination. While this is certainly a welcome change, it is completely at odds with the Department’s choice to entrench sex stereotypes within the regulations themselves via “gender identity.”

Sex Characteristics

The new rule also adds “sex characteristics” under sex discrimination, of which the Department says one example is “intersex” traits (or differences in sexual development). The final rule makes it clear that the Department means for this to be an additional basis by which students can claim “gender identity” discrimination, explicitly citing related case law such as Bostock and Grimm. The Department clarifies: “Sex discrimination based on a person’s physiological sex characteristics may include discrimination based on a person’s anatomy, hormones, and chromosomes associated with male or female bodies.” There need not be any medical diagnosis or proof of a genuine variation in sex characteristics; self-identification is sufficient to claim protection here too.

Discrimination based on sex characteristics will be another route for men and boys to claim discrimination and attempt access to women’s spaces, even when “gender identity” does not guarantee it for them. This is already a feature of many legal challenges to state-level laws protecting women’s athletics.

Single-sex Spaces

Bathrooms and locker rooms

The rule requires schools to allow students to access single-sex spaces such as bathrooms, locker rooms, and showers which are designated for the opposite sex. Adult males can self-identify as female to gain access to public facilities. They may also self-identify as female to act as chaperones or supervise female students changing.

Living Facilities

Previously, sex-separated living facilities were protected under Title IX regulations, but the new rule allows schools to permit students to “self-identify” as the opposite sex and gain access to their living facilities. Unlike for bathrooms and locker rooms, the new rule does not require schools to allow students to access opposite-sex facilities, but “nothing in the final regulations prohibits a recipient from voluntarily taking steps to protect students from sex-based harm, including by permitting them to participate consistent with their gender identity.” The result is that whether sex-separated housing is available to students depends upon state laws and the whims of a given institution. Given that gender identity consistently trumps sex protections, the expectation is that any male that wants to live in a female-only dorm would be granted the right to do so if he says his gender identity is female.

Juvenile justice

The Department did make note of the arguments raised by WoLF in our public comment regarding juvenile justice facilities that are recipients of Title IX funds, though it stopped short of actually addressing those arguments in a meaningful way. It noted that the rule does not cover “living facilities” when they are already otherwise permitted under Title IX, but as we’ve noted, there is nothing protecting single-sex juvenile facilities. Putting to rest any potential ambiguity as to its position, the Department concluded the section by stating that “[t]he generalized data and anecdotal information cited by commenters do not support the commenters’ conclusion that these regulations will increase the risk of rape or sexual assault at juvenile justice facilities.”

First Amendment

Free speech

The rule is disastrous for free speech on the subject of sex and gender. Using sex-based pronouns, identifying people by their sex when relevant, and declining to use speech that implies a belief in gender identity, is now at risk of being labeled “sex-based harassment” under the new regulations. The Department believes this rule meets the strict scrutiny requirements required by the First Amendment, but not because it chose to ensure robust speech protections. Instead, this assertion is backed up with case law that both chips away at the edges and undermines the foundation of protected speech re: gender identity as well.

The rule says the speech must be “so unwelcome, subjectively and objectively offensive, and so severe or pervasive that it limits or denies participation in or benefit from an education program or activity.” The Department claims that this does not constitute viewpoint discrimination because it applies equally to any viewpoint. However, in the same section, the Department quotes the 2006 Ninth Circuit case Harper v. Poway Unified Sch. District which stated that while schools cannot “restrict the non-invasive, non-disruptive expression of political viewpoints,” schools may “restrict ‘one particular opinion’ if the expression would ‘impinge upon the rights of other students’ or substantially disrupt school activities.” This effectively means that standing up for your own right to be free from hostile environments and to have your privacy and dignity respected, could be considered sex-based harassment. It is under this framework that ‘misgendering’ can now be construed as sex-based harassment.

The August 1 effective date is some months out, but as if on cue, members of a middle school girls’ track and field team faced retaliation this week for silently and peacefully refusing to participate with a boy. This boy was allowed on their team following a court ruling in the case of B.P.J. v. West Virginia State Board of Education, in which WoLF submitted an amicus brief against the inclusion of the males in female athletics.

Freedom of belief

The Department ignored arguments by feminists and others that cosigning on a person’s subjective and self-declared “gender identity”, and compelling statements and actions that in accordance with that belief system, is itself a violation of religious freedom and belief. Students need not practice a particular religion or claim that their religious beliefs are at odds with the ideology of gender identity and transgenderism in order to benefit from the First Amendment’s guarantee of religious freedom. The Department did not see fit to address this claim in any meaningful way. It offers protection on the basis of a “cisgender” identity - which, for those who believe in human sex change, is a person whose self-perception of their sex is the same as their sex. However, a lack of belief in “gender identity” is not protected, and the “cisgender-vs-transgender” framework intentionally leaves no room for discussion of sex-based dynamics. The Department instead supersedes sex-based dynamics with their ideological gender framework, and mandates compliance with this new view.

The Department noted that some commenters asked for “transgender status” to be covered instead, but it responded that “gender identity” encompasses “transgender status” and better covers the (expanded) scope intended in the rule change. It declined to clarify or even meaningfully define what the term ‘gender identity’ means.

Panelists from the Women's Liberation Front, Independent Women's Forum, ICONS and CWA discuss the Biden administration's changes to Title IX that once protected women and girls.

Athletics

The new rule does not mandate all schools allow male access to female athletics, though all are allowed to do so. While the new rule redefines sex while keeping the overall framework of Title IX athletic regulations in place, the 2023 proposed rule, still under consideration, does the opposite. Under existing regulations, schools and states may use sex as a proxy to create single-sex teams where necessary for competition fairness and athlete safety. The 2023 proposed rule takes a sledgehammer to that foundation.

That aside, the claim that athletics are unaffected is unpersuasive, as we just witnessed in West Virginia. The guidance from 2021 has not been withdrawn, and new guidance can be issued at any moment regardless. The government continues to file briefs in sports-related lawsuits opposing state bans on male athletes in women’s and girls’ sports.

This only shifts in one direction, of course. The deleterious effects are to be experienced mainly by girls, by design. Boy’s teams will remain largely unaffected. The guidance gives the following example of unlawful discrimination: “The student joins her friends to try out for the girls’ cheerleading team and the coach turns her away from tryouts solely because she is transgender. When the student complains, the principal tells her “those are the district’s policies.”

The foundational Title IX regulation that allowed or required schools to provide female-only sports teams and gave girls a chance to pursue sports is now an artifact of history.

As noted above, the Department states:

“nothing in the final regulations prohibits a recipient from voluntarily… permitting them to participate consistent with their gender identity.” Girls can still compete on girls’ teams, of course, ‘consistent with their gender identity’, but will face boys who maintain their gender identity is that of a girl.

Implementation and Enforcement

The new rule officially goes into effect August 1, though many of the provisions we strongly oppose were covered under the guidance documents issued to schools in 2021. Twenty states are plaintiffs in Tennessee et al. v. Dept of Education et al. which challenged this guidance. A federal judge issued a preliminary injunction prohibiting the Department from enforcing it in those 20 states. The future of that case is uncertain, leaving schools in those states in limbo as to whether and how they will be expected to comply with the rule.

Schools have been asked to enforce this interpretation for the last three years, thus they have implemented policies in accordance with them, and trained their staff accordingly. Schools have already faced angry parents, protests and walkouts, school board disruption, and uncertainty in how to interpret various students’ rights. This ruling will perpetuate this confusion and upheaval in schools.

As if to ensure continued upheaval for schools and parents, interpretation and implementation will be punted down to the diverse ideological leanings of individual schools and, for those inclined to be protective of the rights of women and girls, due process, and the free speech of all students, their tolerance for risk. Schools, not the Department, will be the ones formulating policies in response to the rules, communicating the rules and guidelines to students and staff; doing the investigations, and making determinations as to whether discrimination or harassment occurred; and imposing “supportive measures” and discipline in response. This will mean that a student’s experience and support for their rights will be entirely dependent upon where they reside and attend school, effectively pouring gasoline on the fire of the already Balkanized situation within the United States.

The Department said, in discussing the “de minimis” harm standard, that “there are injuries, including stigmatic injuries, associated with treating individuals differently on the basis of sex” and that complainants do not need to even allege, much less prove, they have suffered more “material” harm. In response to concerns that such “harm” is too subjective to be meaningful for schools to determine, the Department responds that harm must be “genuine and objectively non-trivial and assessed from the perspective of a reasonable person in the individual’s position.” WoLF believes that a reasonable person would not insist they are harmed by lack of access to intimate facilities, or athletic teams, intended for the opposite sex. We believe that reasonable persons do not believe themselves to be harmed by other people’s use of objective, neutral terms in discussing sex. But the Department defines “reasonable people” as those who ascribe to gender identity ideology and place it above actual sex. The formerly reasonable people who understood sex-based rights will now be those causing harm should they try to state what was, until quite recently, common knowledge.

One thing is clear: a school or other recipient of federal funds looking to write, implement, enforce a policy to protect the rights of women and girls will find no support in the new rule.

What To Expect Now

The fight will continue, and expand, in the courts. Ongoing lawsuits challenging state laws protecting women’s sports, most notably the new lawsuit against the NCAA and TN v. ED, will wind their way through the courts system to conclusion. Contradictory court rulings will continue to be handed down. New lawsuits will be filed to challenge the rule on procedural and substantive grounds. The confusion, in short, will continue, and schools will continue to experience cultural battleground fights, while students will be subject to changing rules and compelled thought, and women and girls will be forced to shoulder the burden of losing many of their sex-based rights under Title IX.

We can expect the 2023 athletics-specific final rule to drop at a politically expedient future date.

WoLF is analyzing whether the Department adequately responded to WoLF’s 2021 rulemaking petition, as they claimed they were going to be doing with this NPRM. To that end, we filed Freedom of Information Act (“FOIA”) requests to review their internal communications around the rulemaking process, the public comments, and WoLF’s petition specifically.

Schools will also need to grapple with interaction with state laws, including laws that protect women’s sports, and states that have passed the Women’s Bill of Rights, which - unlike the new rule - does define sex, and defines it accurately.

We will continue to monitor, review, and analyze information as it is released, and keep you informed on actions we take, and actions you can take to apply pressure, to raise awareness, to gather information, and to pursue all available remedies to hold the Department of Education accountable and protect students from this disastrous rule.

Support WoLF’s Work!

WoLF has been fighting these proposed changes from the first day President Biden took office. When you support WoLF, you champion our radical feminist mission to restore, protect, and advance the sex-based rights of women and girls using legal argument, policy advocacy, and public education!

Support Women’s Liberation!