Biden’s Title IX Changes are a War on Both Sexes: Josh Filler

This August, the Department of Education under the Biden Administration will put into effect its 1,500 page rule governing sex discrimination in education. The rule will apply in varying ways to any institution from kindergarten through graduate school that accepts federal funding. At the core of the new rule is the Biden Administration’s redefining “sex discrimination” and “sex-based harassment” to include, among other things, “gender identity.” The new rule is a triumph of the administrative state over the democratic process and an assault on our federal system, freedom of speech, freedom of religion, due process, parental rights, and equal opportunity.

The Biden Administration’s new regulation overrules former Trump Education Secretary Betsy DeVos’s 2020 Title IX rule that did not include gender identity as part of sex discrimination or harassment, and ensured those accused of sexual misconduct were provided basic due process. Any covered institution that bucks the Biden rule can be investigated and punished, risking their federal funding, creating a powerful incentive to comply and enforce the regulation against respective students, faculty, and staff.

The rule is administrative lawlessness that contravenes the plain text of Title IX and two federal circuit court opinions, both the 6^th and the 11^th circuits, which rejected the notion the statute covers gender identity. In short, in the name of enforcing Title IX, the administration is engaging in a naked violation of its express terms. In so doing, it’s circumventing the will of Congress, which has rebuffed numerous attempts over the last decade to redefine sex to include gender identity under the law.  

The new rule unlawfully dislodges the role of the states by attempting to overrule the laws in at least 21 of them, and threatening the withholding of federal funds if the states don’t comply. This includes preempting state laws governing sexual harassment, use of public bathrooms, sports, and a parent’s right to know of a child’s desire to “gender transition” at school. Such federal coercion of the states violates the Tenth Amendment.

The Biden regulation eviscerates due process for anyone charged with violating its provisions by resurrecting and further empowering Obama-era kangaroo campus courts. This includes removing a defendant’s right to a live hearing, the right to legal counsel or an advisor, right to cross-examine the accuser or other witnesses, the right to put on expert witnesses and certain fact witnesses, the right to fairly access all evidence, protection against a school’s use of a single person to investigate, fact find and adjudicate a case, and the right to have investigations start with a written allegation.

Those unconstitutional due process violations have been and will be used most often against boys and men accused of sex-based harassment, especially as the Biden Administration has broaden its definition to cover a wide array of conduct, some of which may be rude or obnoxious, but nonetheless well within the legal bounds set by the law and the Supreme Court.

The Trump Administration had defined sex-based harassment under Title IX consistent with Supreme Court precedent as “[u]nwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Biden Administration throws aside the high court’s ruling and instead broadens the definition to require that the conduct be severe or pervasive, not both, and instead of denying equal access it must only limit such access. 

The new rule violates the First Amendment by requiring students, teachers, and administrators to use the preferred pronouns of other students, even those that are “non-binary,” meaning their pronouns can shift by the day or even the hour. Such compelled speech by the government has long been held to be unconstitutional by the Supreme Court. Moreover, the rule will muzzle students and faculty when it comes to discussing and debating contentious issues such as gender ideology, same sex marriage, religious freedom, etc. Few will want to risk offending other students and then face the Soviet style show trials required under the new rule.

The late Justice Ruth Bader Ginsburg once wrote that when it comes to men and women, “separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” One could add to that list individual safety, especially for women. The new Biden Title IX rule ignores this basic truth by requiring academic institutions to allow men who identify as women onto female sports teams and into female locker rooms and bathrooms. Ironically, the regulation will make it easier to falsely accuse innocent young men of sexual misconduct while simultaneously opening the doors for actual predatory men to target girls and women in female changing rooms and restrooms.

Allowing boys and men to compete against girls and women in sports robs those girls and women of the opportunity to compete, by denying them a place on the team roster, and an opportunity to succeed, by denying them the chance to stand on the winner’s podium.  In other words, the very driving force of equal opportunity for girls and women behind Title IX’s passage is sacrificed on the altar of gender ideology to give boys and men the opportunity to compete in their stead. If taken to its illogical conclusion, the Biden policy could result in a girls’ basketball team comprised entirely of boys who identify as girls.

There is little doubt a hostile judicial environment awaits the Biden Administration’s Title IX rule, especially as the Supreme Court is poised to remove or modify the deference courts have been required to give regulatory agencies under the high court’s Chevron doctrine. Even with such deference in mind, however, agencies are never empowered to re-write a statute, as the Biden Education Department has done here. While the Supreme Court will ultimately settle the validity of the Title IX regulation, it will be up to the lower federal courts to prevent this administrative monstrosity from ever seeing the light of enforcement.