The Department of Education’s latest attack on Title IX female-only sports also encourages young boys to take estrogen to be eligible for the girls’ team and forces schools that use sex-based criteria for athletics to make exceptions for male athletes based on their “gender identity”

WoLF submitted a comment on Monday in response to a new Notice of Proposed Rulemaking (NPRM) by the Department of Education, seeking to amend Title IX regulations in regard to “gender identity” and athletics in schools. The proposed rule would prohibit schools from fully limiting eligibility for female-only teams to only female athletes, forcing them to provide exceptions to “minimize harm”  to male students with a claimed “gender identity.”

From the Notice of Proposed Rulemaking (NPRM): 

“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:  

(i) be substantially related to the achievement of an important educational objective, and 

(ii) minimize harm to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

This NPRM is separate from last year’s (not yet final), which seeks to change the very definition of sex in Title IX to include “gender identity” across the board, and makes any male student-athlete eligible for female-only teams if he says he is a “female” student-athlete. The impact of the new NPRM will vary depending on that final rule.

The proposed rule disparately impacts women and girls based on their sex, providing benefits only to men and boys.

The NPRM is clear that any policy entirely based on sex would not comply with the new regulation. This means that all publicly-funded schools across the country (even in states that currently protect single-sex sports) would be forced to allow some men and boys onto women’s teams in some circumstances. The Department states that this would specifically apply to lower-level competitions. It states in the provided supplemental information :

“Criteria that categorically exclude all transgender girls and women from participating on any female athletic teams, for example, would not satisfy the proposed regulation because, in taking a one-size-fits-all approach, they rely on overbroad generalizations that do not account for the nature of particular sports, the level of competition at issue, and the grade or education level of students to which they apply.”

The new rule would disproportionately affect women and girls based on their sex, providing advantages exclusively to men and boys.

WoLF’s comment states: 

“By allowing students to participate in sports based solely on thier “gender identity,” it is plainly obvious that this benefit, in reality, only applies to male students. Female students, including those who identify as boys or men (or “nonbinary”), gain no benefit from the option to participate on male athletic teams because they are 1) unlikely to succeed on these teams due to the biological differences between males and females, and 2) would be wildly unsafe on these teams.”

This disparate impact undermines the progress made in achieving equality in athletics. By allowing males to participate in sports designated for females, the proposed rule denies female athletes fair competition and equal opportunities in favor of “not harming” males by holding them to the same standard as all other students simply because they believe they have a special “gender identity.” 

Although the Department acknowledges the importance of fairness and safety, they claim that these concerns would not be an important enough objective at lower levels of competition. However, evidence suggests that women and girls face a heightened risk of physical injury and assault even at non-competitive levels of sport. Sexist attitudes and stereotypes around girls in sport begin extremely young, and single-sex sports opportunities for girls provide an important space for girls to be involved in athletics from a young age free from these barriers. 

The Proposed rule would encourage, incentivize, and normalize off-label use of sterilizing drugs, exogenous cross-sex hormones, and surgical removal of healthy body tissue and organs in children and teens.

One of the more insidious aspects introduced by the NPRM is the way the new rule would encourage, incentivize, and normalize the off-label use of sterilizing drugs, exogenous cross-sex hormones, and surgical interventions in children and teenagers. 

WoLF’s comment states: 

“By focusing the application of sex-related criteria on the limited issues of “fairness” and “safety,” and stating that male students who “transition at the onset of puberty … never gaining any potential advantages that the increased production of testosterone during male puberty may create,” (NPRM at par. 110) the Department encourages students who claim a gender identity and wish to participate in opposite-sex sports to engage in sterilizing medical interventions such so-called puberty blockers” as early as possible to receive the maximum benefit under the proposed regulation.”

These irreversible medical interventions carry long-term health implications and have not been adequately studied in terms of their physical, mental, and emotional effects. By normalizing these medical interventions without sufficient research and understanding, the proposed rule puts vulnerable young people at risk. Yet, unlike the previous NPRM by the Department which would institute a “self-ID” policy, the measures the current proposed rule takes to determine “fairness” and “safety” appear to favor male students who have participated in these dangerous and unnecessary medical interventions. The impact of this aspect of the new NPRM should be taken very seriously as it will have impacts beyond athletics.

Interaction with Other Laws and Policies

The latest NPRM, one of two federal Title IX rules currently under consideration that would govern male participation in female K12 athletics, would simply be just the newest arrival in an increasingly complex national standoff that already has pitted federal against (each unique) against local in the realms of legislation, litigation, and regulation. Over the past several years, many states have passed so-called “Save Women’s Sport” bills, each with their own spin on ensuring that only female athletes are eligible for women’s and girls’ sports. 

Title IX (as with a lot of federal law) does not dictate law to the states; it dictates the standards of what states and schools are allowed to do and not do in order to receive federal funding (in this case, under Title IX). If this proposed rule is finalized and becomes a regulation with the full force of law, it would have no impact at all on any school that does not receive such funds. Such schools need only contend with that state’s own legislation and regulations, (and/or local ordinances). But even absent any federal or state mandates, individual schools do not always make the rules themselves, sometimes governed by state or regional athletic or educational associations. Or, in the case of collegiate athletics, the NCAA, which itself has recently come against a “total ban” on males in female sports in post-secondary competitive athletics. 

Although the current NPRM does (in theory) allow sex to be used as a criteria in some cases, the new rule would not require schools to have any exclusively single-sex teams at any level of competition. This means that girls in different states and schools across the countries will be exposed to wildly different scenarios. 

In states that have passed robust Save Women’s Sports laws, schools that accept federal funds will be made to choose between state law, which fully prohibits male access to female sports, and having to admit at least some males who self-identify as female even at the highest level of competition (and at the lowest level, perhaps even all of them). The consequences of violating the state laws varies by state, but generally this means schools have to choose between state and federal funding (both of which they currently rely upon to function).

The landscape is even more complex than that, for two reasons. One, legislation (and accompanying regulations) do not operate in a vacuum and must interact with others, both federal and state (such as the Women’s Bill of Rights). Two, laws are subject to judicial review, including consistency with constitutional mandates such as equal protection under the law. The proposed rule could bring into question the lawfulness of female-only sports under Title IX if it requires schools to justify the exclusion of males who say they believe they have a female inner essence.

We will have further analysis in the future about this vital issue, including the fight for control over women’s sports between male-dominated federal and state governments, how the Women’s Bill of Rights upholds sex-based rights, and the future of intermediate scrutiny under gender identity policies.

Join the fight to save women’s sports!

At WoLF, we are committed to protecting the legacy of Title IX and the rights of women and girls. It is crucial to voice our concerns and engage in a meaningful dialogue to ensure that female student-athletes have equitable opportunities to excel and succeed. 

Thanks to ongoing support from our generous donors, we can advocate for the rights and opportunities of women and girls in athletics, and beyond. Donate to WoLF today to help make this work possible!