The Revocation of Title IX

Suzanne Goldberg
Acting Assistant Secretary for Civil Rights
U.S. Department of Education
Office for Civil Rights

Submitted via email: [email protected]

Re:  Notice of Interpretation Regarding Title IX
Dear Acting Assistant Secretary Goldberg,

The Women’s Human Rights Campaign (WHRC) is a global nonpartisan group of volunteer women dedicated to protecting women’s sex-based rights. Our volunteers include academics, writers, organizers, activists, lawyers, and health practitioners. The Declaration on Women’s Sex Based Rights was created by the founders of WHRC to lobby nations to maintain language protecting women and girls on the basis of sex rather than “gender” or “gender identity.” The Declaration re-affirms women and girls’ sex-based rights and challenges the discrimination we experience from the replacement of the category of sex with that of “gender identity.”

Title IX of the 1972 Federal Education Amendments has been eviscerated by President Biden’s Department of Education exactly one week before its 49th anniversary. Title IX reads, in pertinent part:

“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.” [emphasis added]

Patsy Matsu Takemoto was born on December 6, 1927, at a sugar plantation camp in Hawaii, to descendants of Japanese immigrants.

Patsy graduated as valedictorian of her high school in 1944. She eventually studied at the University of Nebraska, where she worked to abolish what were, at the time, legal racial segregation policies. She eventually enrolled in the University of Chicago Law School, where she met John Mink, whom she married. They both graduated law school in 1951, had a daughter in 1952, and returned to Hawaii.

Patsy Takemoto Mink’s story is a story about a woman’s fierce refusal to accept the racist and sexist laws that tried to keep her in her place. Due to sexist laws that were in place in the early 1950s, she lost her Hawaiian territorial residency when she married, and she was denied the right to take the bar exam. She fought the law and won the right to take the exam and passed it. However, because she was married and had a child, no law firm would hire her. So, she established her own law practice. She eventually won a seat on the Hawaiian territorial House of Representatives, becoming the first Japanese-American woman to do so. Two years later, she became the first woman to serve in the territorial Senate. She spoke in favor of civil rights at the 1960 Democratic National Convention, and earned a seat in the U.S. House of Representatives in 1964. She served a total of 12 terms in Congress. While there, she introduced the first comprehensive initiatives under the Early Childhood Education Act and worked on the Elementary and Secondary Education Act of 1965.

And finally, in 1972, with momentum from the Women’s Liberation Movement, she co-authored the Title IX Amendment of the Higher Education Act. Title IX was eventually renamed the Patsy Takemoto Mink Equal Opportunity in Education Act following Mink’s death in 2002. So today, although we refer to the law as Title IX, which is accurate, the law is technically called the Patsy Takemoto Mink Equal Opportunity in Education Act in her memory.

Eviscerating the Act, as the Biden Administration has done, is a slap in the face to her memory.

Introducing the amendment in 1972, Sen. Birch Bayh said its purpose was to correct “the continuation of corrosive and unjustified discrimination against women in the American educational system.” He further observed: “because education provides access to jobs and financial security, discrimination here is doubly destructive for women.” 118 Cong. Rec. 5803 (1972).

On June 23, 1972, President Nixon signed Title IX into law, with the goal of ending sex discrimination in schools as a federal civil right. It applies to all federally funded educational programs, including athletic programs. During the 1970s there were attempts to exclude scholastic sports from Title IX that failed; and in 1978 equal opportunity in school sports for men and women became mandated by the Department of Health, Education and Welfare — on the basis of sex.

On June 16, 2021, the U.S. Department of Education’s Office for Civil Rights issued a Notice of Interpretation explaining that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.

Discrimination on the basis of sexual orientation can legitimately be seen as an aspect of discrimination on the basis of sex: If a woman is penalized for relating sexually to women, while a man is not, that is discrimination on the basis of sex.

Discrimination on the basis of “gender identity”, however, is not a legitimate aspect of sex discrimination, because if a man can misrepresent his sex as female and thereby obtain the legal right to replace females in scholastic opportunities, as we have all seen, then “gender identity” in fact destroys the category of sex and the meaning of sex discrimination. This is sadly where we are in the United States, not only in practice, but now in law. The right of women to be free of sex discrimination is gone, because men can be women under federal law.

In addition, the Department’s interpretation is in direct conflict with the U.S. Supreme Court’s decision in Bostock v. Clayton County, despite claiming to be consistent with it. Bostock was expressly limited to the employment context – the court said so explicitly. The Department’s interpretation is a complete distortion of it

The vast majority of Americans, between 70%-80%, are not on board with “gender identity”, and they are not wrong. They are not keeping an oppressed minority from having full civil rights out of blind hatred or fear. Men can participate in all educational programs including sports on the basis of their sex. Men are not women. And, except apparently for the Biden administration, everybody knows that this is true.

This harmful legal fiction opposed by Americans across party lines will not stand. We’re not having it.

Sincerely,

Women’s Human Rights Campaign, U.S. Chapter

Cc:  Miguel Cardona
Secretary of Education

*Please note that the Women’s Human Rights Campaign USA (WHRC-USA) is now officially known as Women’s Declaration International USA (WDI-USA)

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