WoLF Submits Public Comments to US Department of Education’s Proposed Title IX Regulations
Since the 1970s, when Title IX was established, many members of the general public thought only about sports and athletic opportunities when they heard the phrase “Title IX.” For many parents and students, Title IX became synonymous with women’s and girls’ sports because of the sustained focus on how this law would affect athletics in schools. And in the world of higher education, Title IX quickly became associated with sexual violence investigations when the “Dear Colleague” letter of 2011 was issued to campus administrators.
However, while athletic activities and sexual violence investigations are certainly connected to education, Title IX was established to focus on a much broader issue: equal educational opportunities for both sexes:
“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.”
Since 1972, 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.
However, in July 2022, the US Department of Education proposed rules that would grant men and boys access to female-only spaces based on the males’ self-declared “gender identity." In addition to urging members of the public to submit comments to the department, WoLF asked one of our Advisory Council members to prepare and submit comprehensive comments on behalf of WoLF. We are deeply grateful to Jennifer Chavez for producing an incredibly thorough set of comments. The level of high-quality analysis in these comments is due to Ms. Chavez’s knowledge, skills, and incredible commitment to protecting women’s rights.
Title IX's prohibition of sex discrimination covers same-sex attraction, sex-related characteristics such as pregnancy, and sex-stereotype nonconformity. However, it is impossible to protect people on the basis of these characteristics, which are based on biology, while also protecting "gender identity," which is a socially created concept.
One of the most glaring weaknesses of the department’s proposal is its failure to define "sex" or "gender identity," resulting in rules that are confusing and contradictory. Sex is a biological state of being; regardless of how a person “identifies,” sex cannot be changed or altered. In contrast, gender is a subjective feeling based on socially-created stereotypes about how males and females are “supposed” to think, feel, and behave. However, the department failed to provide definitions for the words “sex” and “gender identity” in its document focusing on discrimination against these two characteristics. This obvious failure to provide definitions will certainly contribute to even more chaos and uncertainty in educational institutions across the country. How can school administrators and other employees be expected to comply with regulations that do not even have clearly defined concepts?
Women and girls suffer from extremely high rates of discrimination, abuse, and violence from men due to social subordination and historical disenfranchisement. Women have fought for single-sex spaces where they can have some measure of dignity, privacy, and protection from sexual abuse by males. Allowing men and boys to access historically female-only spaces based on the males’ “gender identity” devalues women's safety in order to accommodate men's feelings.
Throughout the United States, many millions of people will be affected by these proposed rules, including students, staff members, and faculty members at almost all public educational institutions. This includes all public schools, libraries, juvenile justice facilities, and any private schools that receive federal funding. In short – almost every private school and all public schools, as well as numerous other facilities, will be affected by these rules. If these regulations are adopted, women and girls will lose critical legal protections in all of these venues.
Title IX is a bedrock civil rights statute that has helped women and girls make significant progress in their education and careers. This crucially important legislation has empowered women and girls to achieve incredible advances over the past fifty years.
Equating sex with "gender identity" is a profoundly damaging step backward for women's rights. If these regulations are allowed to come to fruition, each of the following provisions will result in negative consequences for women and girls:
Redefining the scope of Title IX to give “gender identity” coequal status with sex (proposed 34 C.F.R. § 106.10).
Making it a violation of Title IX for funding recipients to maintain single-sex spaces, athletics, or other activities or programs where “sex” is understood to mean the distinction between male and female (proposed 34 C.F.R. § 106.31(a)(2)).
Dictating that recipients must allow self-identification of sex and self-identification of “gender identity” for pre-employment and pre-application inquiries (proposed 34 C.F.R. § 106.21(c)(2)(iii) and proposed § 106.60(d)).
Granting legal protections for “gender identity” at the expense of longstanding protections sex-based rights and protections, contrary to the text and legislative purpose of Title IX (proposed 34 C.F.R. § 106.31(a)(2)).
Creating a strong likelihood that women and girls, as well as some men and boys, will be silenced or punished under the expanded definition of sex-based harassment (proposed 34 C.F.R. § 106.2), in light of the proposal to protect “gender identity” (proposed §§ 106.10 & 106.31(a)(2)).
Failing to properly consider and weigh the costs of the proposed regulations on different categories of people, including differential benefits and costs to males versus females, and to people who self-identify as "transgender" versus those who do not self-identify as “transgender.”
Failing to consider how all of the proposed “gender identity” provisions will complicate or impede the ability of juvenile justice facilities to comply with legal requirements under the Prison Rape Elimination Act (PREA).
In conclusion, it is consistent with Title IX to prohibit sex discrimination as it pertains to same-sex attraction, sex characteristics, and sex-stereotype nonconformity. However, the proposed "gender identity" rules are contrary to Title IX and will profoundly harm the interests of women and girls.
Women and girls have valid reasons to demand access to single-sex bathrooms, locker rooms, showers, and overnight accommodations. The vast majority of female sexual violence victims and domestic violence victims are preyed upon by male offenders (CDC 2010). Because of the violent culture in which they live, women and girls are forced to be constantly vigilant; they frequently need to assess their surroundings in order to determine their risks of being assaulted by males who are nearby. Forcing women and girls to share any type of private, intimate spaces with men and boys will profoundly reduce females’ abilities to assess and try to reduce the risks posed by male predators.
Women and girls also need access to single-sex athletic teams and competitions because females are, on average, smaller, slower, and weaker than males. A great deal of attention has already been paid to the unfairness of mixed-sex sports. See here, here, and here for more information.
Finally, freedom of expression and freedom of thought is also placed at risk by these regulations. Women, girls, men, and boys who believe in the science-based definitions of male and female will be gaslit by the federal government and all complying institutions that promote the ideology of “gender ideology.” Students, staff members, and faculty members at educational institutions throughout the United States will be forced to comply with ideological belief systems that are based on sex stereotypes, not science.
If approved, the department’s proposed regulations will do more than inconvenience women and girls: they will place women and girls at increased risk of sexual violence, domestic violence and stalking; they will eliminate fair athletic competitions for female students; and they will gaslight the entire nation into complying with an ideological belief system.
Read WoLF’s Title IX comments, submitted on September 11, 2022, by clicking here.
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