Biden’s Title IX Rewrite Is an Assault on Women’s Rights The administration’s new draft rules redefine the word ‘sex’ to mean ‘gender’ and ‘gender identity.’By Jennifer C. Braceras and Inez Feltscher Stepman
“Out of a single sentence barring discrimination on the basis of sex, the Biden administration is illegally rewriting federal law to erase women and undermine constitutional liberties. Because the scope of the proposed rules is so vast, and its implementation is being managed by bureaucrats behind the scenes, average Americans may not have noticed. They need to wake up.”
Title IX is a simple anti-discrimination mandate that prohibits federally funded educational institutions from discriminating “on the basis of sex.” Yet, without congressional authorization or other constitutional authority, the Biden administration is writing new Title IX rules to socially engineer every aspect of the educational experience—from student speech and school athletics to high-school locker room use and relationships between adult college students.
These draft rules, leaked to the media in dribs and drabs, have been delayed repeatedly to avoid organized backlash. Behind the scenes, the administration is telling educational institutions that the rules are a fait accompli, demanding enforcement that curtails freedom of speech, due process and women’s rights.
Although Title IX makes no mention of sexual harassment or assault, the Supreme Court has held that a school that tolerates sexual misconduct may be found to have violated Title IX. At the same time, the high court has been clear that most speech (including speech about sex roles) does not rise to the level of unlawful sexual harassment. Unfortunately, before 2020, many universities routinely used Title IX as a club against protected speech, with Northwestern University famously initiating a Title IX investigation against a professor merely for publishing an article that offended some students.
In 2020 Education Secretary Betsy DeVos tried to right the ship by issuing a regulation that reiterated the legal boundary between protected speech and sexual harassment as determined by the Supreme Court in Davis v. Monroe County Board of Education. In that 1999 decision, the court held that a Title IX violation occurs only when the behavior is “so severe, pervasive, and objectively offensive” as to deny the victim access to education on the basis of sex. The DeVos regulation sought to enforce that legal principle. But the Biden administration’s promise to repeal the 2020 rule and broaden the definition of harassment would effectively overturn a Supreme Court ruling by administrative fiat, ushering in the return of unconstitutional speech codes designed to silence dissent.
The Biden rules are also likely to roll back due-process protections for students accused of sexual misconduct. In the American legal system, accused persons have a right to receive timely notice of the accusations against them, view evidence and present their side of the story to an impartial arbiter. But in the years before the DeVos regulation, many students had their lives ruined by campus kangaroo courts in which the mere accusation of misconduct was sufficient for punishment. Nearly 200 of these students sued their universities for violating their rights and received favorable court rulings. The DeVos regulation required schools to comply with these legal rulings. Unfortunately, the Biden administration is set to give a federal seal of approval back to these college star chambers.
In perhaps the most sweeping change to federal law ever enacted by unelected bureaucrats, the administration’s draft rules redefine “sex” to include “gender” and “gender identity.” This would require every educational institution that receives federal money to allow biological men into women’s locker rooms, sororities and other previously female-only spaces. Any school that attempts to prevent the next Lia Thomas from competing on a women’s team will have its federal funding snapped back—under the same law that once required schools to increase athletic opportunities for women and girls.
The Biden rules would also limit the ability of parents to exempt their children from lessons on choosing one’s sex, while empowering schools to transition children without receiving parental consent or even informing parents. Because the new rules both redefine “sex” to mean “gender identity” and carelessly expand the definition of harassment to include protected speech, schools are already punishing children who use biological pronouns to refer to their classmates.
Out of a single sentence barring discrimination on the basis of sex, the Biden administration is illegally rewriting federal law to erase women and undermine constitutional liberties. Because the scope of the proposed rules is so vast, and its implementation is being managed by bureaucrats behind the scenes, average Americans may not have noticed. They need to wake up.
Ms. Braceras is the director of Independent Women’s Law Center. Ms. Stepman is a senior policy analyst at the Independent Women’s Forum.
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