The Department of Education responded on Wednesday to WoLF’s petition for rulemaking, declining the request to affirm that Title IX will be enforced on the basis of sex but outlining next steps and inviting public participation. 

Background

On February 8, 2021, WoLF submitted a petition for rulemaking to the Department of Education in response to President Biden’s January 20th executive order directing federal agencies to do a review of rulemaking to protect “gender identity” in laws. At the time, both White House and Secretary of Education, Dr. Miguel Cardona, had confirmed that they intended to end single-sex sports by opening up women’s and girls’ competitions to male athletes who say they identify as “female.” 

The Department of Education is also likely to interpret the executive order as an end to single-sex intimate spaces in educational settings such as locker rooms, bathrooms, and student housing.

Prior to the executive order, there were multiple incidents of faculty and staff being fired, disciplined, or otherwise punished for raising concerns about or arguing in favor of single-sex spaces and women’s sports.

Biden’s executive order gave agencies 100 days (until April 30, 2021) to fulfill their rulemaking requirement.

The Petition

In response to the executive order, WoLF submitted a petition for rulemaking to the Department of Education. A petition for rulemaking is an opportunity for concerned parties to ask for the issuance, amendment, or repeal of a regulation. Regulations are how federal agencies, like the Ed. Dept., interpret and implement laws passed by Congress. 

The WoLF petition requested that the agency affirm that Title IX will be enforced on the basis of sex, as detailed by the Office of Civil Rights in January, rather than “gender identity.” The specific requests for rulemaking in the petition include:

1. “Sex” under Title IX refers to biological sex.

2. “Gender identity” is “a person’s belief that they have an internal sense of self-identification as male, female, both, or neither, that is incongruent with one’s sex.”

3. Single-sex spaces and services, including sports, are provided by sex and not on the basis of a person’s belief about their sex.

4. True statements about biological sex, based in material reality, are protected by the first amendment.

The Response

On April 7, Suzanne B. Goldberg, Acting Assistant Secretary for Civil Rights at the Department of Education replied to WoLF’s petition (read the full response). The Department declined to propose the regulations from WoLF’s petition and would not affirm that Title IX will be enforced on the basis of sex. However, they outlined next steps in their rulemaking and invited participation in a public hearing which will include written and oral testimony. The response states that:

“OCR will hold a public hearing in which students, educators, and others with interest and expertise in Title IX will be able to participate by offering oral comments and written submissions. OCR seeks to hear from as many interested parties as possible and expects to announce the dates and times for this hearing in the coming weeks through a Federal Register notice. After this hearing and completion of its comprehensive review, OCR anticipates publishing a notice of proposed rulemaking. Accordingly, OCR is not in a position, at this time, to proceed with the amendments to the Title IX regulations that you requested in your petition.”

The Department cited Biden’s executive order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, and its directive to interpret the Bostock Supreme Court ruling to Title IX. It is unfortunate that federal agencies are continuing to misinterpret Bostock in this way, despite the fact that the majority opinion stated clearly that the decision did not “sweep beyond Title VII to other federal or state laws,” nor did it apply to “bathrooms, locker rooms, or anything else of the kind.”

Notwithstanding their faulty understanding of Bostock, it is surprising and encouraging that the Department did not reject the legal arguments within the petition, leaving the door open for WoLF to continue to advocate for these common-sense regulations during the review process.

Next Steps

WoLF will be closely following developments and keeping the public informed in the following weeks and months.

There will be a public hearing and, likely, a period of public comment on the proposed rules, during which members of the public will be able to submit feedback to the Department of Education.

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