This week, the Department of Education announced that they will begin accepting Title IX complaints on the basis of sexual orientation and gender identity. Title IX prohibits discrimination on the basis of sex in education. While this means that men and women, boys and girls, are not allowed to be treated differently in most circumstances, Congress had the Department of Education (ED) create regulations that allow for things like female-only sports teams and sex-separated intimate spaces. They understood, as most of us still do, that single-sex spaces are necessary to ensure equal access to educational opportunities for women and girls.

There have been a lot of questions about the impacts of this change in policy as well as possible next steps, which WoLF aims to address here.

Are girls’ and women’s sports no longer allowed? (Also, are single-sex facilities still allowed?)

The new policy implements self-identification of sex. This means that, while the Department’s Office of Civil Rights (OCR) has not banned teams that say they are for women and girls, these teams can no longer exclude male athletes from their ranks if they say they identify as something other than male. The same is true for locker rooms and bathrooms.

How does this action differ from the Equality Act?

This action differs from what the Equality Act would do in two important ways.

1. The Equality Act is explicit that students must be able to play “according to their gender identity.” In contrast, the OCR right now is shying away from making a firm statement to this effect, because of reason #2.

2. The Equality Act is much more difficult to challenge legally. Properly passed legislation can typically only be overturned if it is found unconstitutional. Administrative regulations can be superseded by legislation, and subregulatory guidance (such as this notice of interpretation) can be superseded by either legislation or regulation.

Put simply, the Biden administration is keeping their detailed plans close to the chest until they are able to put their regulations into law, or until they are able to pass the Equality Act, because it is more difficult to challenge.

Is this an official regulation?

No, and the Department still anticipates engaging in the rulemaking process although they have not committed to a timeline on this. However, they are treating this as a “clarification” of their position, and inviting students to begin submitting complaints.  

WoLF submitted a Petition for Rulemaking earlier this year - the Department declined to propose our new regulations, but instead began the current review process.

How does this impact free speech and freedom of belief on campus?

This remains to be seen, though we know that free speech on gender issues is currently being chilled and suppressed on campuses even prior to this announcement. Issues such as ‘misgendering’ or making truthful statements about human biology are likely to be implicated in regulations on harassment and discrimination.

How does this affect LGB students?

This Notice opens up a broad opportunity for LGB students - not only are they protected against traditional types of discrimination, but Title IX complaints could help shield against some of the coercive practices of gender activists. Utilizing these new protections can help same-sex attracted students assert their boundaries and rights without worrying about adverse impact and no recourse. For example, a lesbian’s right to assert that she is only attracted to females should be protected under this Notice.

What can be done to challenge this right now? 

• They are still making a Q&A doc, which we will be contributing to (though they have not committed to a release date on this).

• Submit Title IX complaints if you have been subject to discrimination on the basis of your sexual orientation, your gender identity, or your lack of gender identity.

• When rulemaking is proposed, there will be an additional opportunity to have input into the process.

Does this decision affect single-sex dorms and showers?

The Department of Housing and Urban Development already opened up single-sex dorms and showers to self-id earlier this year. Alliance Defending Freedom is suing to challenge this convoluted interpretation of the Fair Housing Act.

Does this apply to the Department of Education itself?

The Department is covered under federal workplace regulations, not Title IX. President Biden already moved to “self-identified sex” in the federal workforce on Day 1 in office.

How does this affect the state legislation on women’s sports?

Dozens of states have introduced legislation protecting sex-separated sports. This announcement does likely create an inherent conflict. Schools that deny participation for male students who want to identify into women’s and girls’ sports will be vulnerable to Title IX complaints, while schools that allow mixed-sex sports based on gender identity will be in violation of state law.

WoLF still supports these bills, and they are going to play a really important role in challenging these new policies. In addition to considering the rights of women and girls, courts will be forced to grapple with issues of state’s rights.