WDI USA Statement Regarding Title IX Rule Changes

On Friday April 19, the U.S. Department of Education announced a final rule amending the Title IX implementing regulations. The new rule defines sex to include the nebulous and sexist concept of “gender identity” for all purposes under Title IX, including for evaluation of sex discrimination complaints by schools.

The new rule was initially announced as a proposed rule in June 2022. After issuing the proposed rule, the Department received over 250,000 public comments—the most in Department history. Many groups, including WDI USA, provided commentary to help members of the public make the Department understand how unpopular its policy of erasing women and girls is. As predicted, the Department has ignored the will of the vast majority of the American electorate.

A 2023 survey conducted for WDI USA by SurveyUSA shed light on how American voters think about these topics. Of the over 1200 voters surveyed, 84 percent say an all-female high school basketball team should face opponents who are female only; 10 percent say opponents should be female or male, as long as they consider themselves women or girls. Eighty-five percent say when a female gym member is showering and changing in the women’s locker room, the other users in the locker room should be female only; 11 percent say they could be female or male, as long as they consider themselves women.

The Biden Administration is out of step with the American electorate.

Patsy Mink

One of Title IX’s main authors was Patsy Takemoto Mink. Mink was born to Japanese immigrants on a sugar plantation in Hawaii. After earning her law degree at the University of Chicago in 1951, she had trouble finding work at a law firm due to rampant sex and race discrimination. She ultimately made her way to the House of Representatives, where she was a fierce advocate on behalf of women and children. After Mink died in 2002, Congress officially renamed the law the “Patsy T. Mink Equal Opportunity in Education Act” in her memory. 

What the Department has done is a complete insult to all women and to women who, like Patsy Mink, have devoted their lives and careers to fighting for actual women and girls (i.e., female human beings) in particular.

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There are at least two points of confusion regarding these rule changes. We hope to provide some clarity around those two points: (1) Whether what the Biden Administration did was unconstitutional; and (2) Whether the new rules exempt sports.

Is what the Biden Administration did constitutional?

Sometimes the media frames what happened in a misleading manner by suggesting that President Biden has actually rewritten Title IX. For example:

This has prompted many to ask the understandable question: “Can he do that???”

The answer to that question is NO, the President does not have the constitutional authority to simply rewrite an Act of Congress. To do so would be a blatant violation of Article I of the Constitution (with respect to the separation of powers).

However, that’s not what happened here. As noted, the Department issued its proposed regulatory changes in June 2022. As required under the Administrative Procedure Act, the Department opened the proposal to public comment. Even after receiving an unprecedented number of critical public comments, it proceeded to make its proposed rule final. Those of us who fight to protect the sex-based rights of women and girls do not like the outcome, and there may be additional legal avenues to pursue. Had Biden actually singlehandedly rewritten Title IX, that would be plainly unconstitutional. But he didn’t. He followed the rules and ended up with an outcome that is a disaster for women and girls as a sex class.

Does the new rule exempt sports? 

Some questions have been raised about whether the new rules exempt sports. This confusion seems to be grounded in a completely separate proposal the Department has issued, which is called the Athletics NPRM (Notice of Proposed Rulemaking). The Athletics NPRM, issued in April of 2023, is slightly different from the June 2022 proposal at issue here. That proposal is specifically related to sports and, although it does not propose to redefine sex to include “gender identity” for all purposes under Title IX, it would permit schools to elevate “gender identity” over sex under certain circumstances. While that proposal is bad for the protection of women and girls as a sex class, it’s slightly less bad than the June 2022 proposed rules that have now become final.

However, there is nothing to suggest that because of the existence of the 2023 Athletics NPRM, sports are exempted from the June 2022 proposed rules. As noted, the June 2022 proposed rules, now made final, redefine sex to include “gender identity” for all purposes under Title IX. There is no reason to think that excludes sports. The Administration might try to persuade voters that sports are excluded from the June 2022 proposed rules in order to skate through the November 2024 presidential election. If they do so, however, they’ll be misleading the public.

So, what is to be done?

There are three ways Congress could fix this: (1) Enacting the Protection of Women and Girls in Sports Act (which is currently before the U.S. Senate); (2) Enacting the Women’s Bill of Rights (which is currently before the U.S. House of Representatives; and (3) Enacting a stand-alone bill to clarify that sex means sex, not “gender identity,” under Title IX. We do not think the current Congress will do any of those things, but we note that it could, if it had the will.

The Protection of Women and Girls in Sports Act is a straightforward piece of legislation that would define sex as biological for purposes of Title IX. In doing so, it would keep men and boys out of women’s and girls’ sports at federally funded institutions, consistent with Article 7 of the Declaration. WDI USA published a statement in support of the bill in February 2023. The bill passed in the House of Representatives in April 2023, and WDI USA President Kara Dansky published a piece explaining why progressives should support it. Every month for the remainder of 2023, WDI USA encouraged Declaration signatories to urge their Senators to advance the bill. The bill is still languishing in the Senate today.

The Women’s Bill of Rights (WBOR) has been pending before both chambers of Congress for a few years now. It was most recently reintroduced in the House of Representatives in February 2023. It has been pending before the House Judiciary Committee ever since.

The Protection of Women and Girls in Sports Act is only a partial fix because it only addresses sports. Still, enacting it would go a long way toward ensuring fairness for women and girls. The WBOR is a broader fix in that it would clarify that sex means sex throughout federal law. Congress could take action on either bill at any time.

A third option for Congress is to enact a stand-alone amendment to Title IX to clarify that sex means sex for all purposes under that legislation. Any member of Congress could introduce such an amendment at any time.

Women must keep speaking out

Again, we are not confident that Congress will take any of those actions. Even if it did, the President would surely veto its effort.

April 19 was a sad day for U.S. women and girls as a sex class. WDI USA is a nonpartisan organization that does not take positions on candidates or parties. We can say with confidence, however, that President Biden has shown unambiguously how much he does not care about women and girls.

But women will never stop fighting for our full sex-based human rights! WDI USA is in discussions with some other women’s groups about potential legal challenges to the new rules and we will continue to put pressure on Congress. As always, women must keep speaking out. History has shown that in the long term, governments cannot govern without consent.

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