WDI USA Statement on The Department of Education’s 2023 “Athletics NPRM”

On July 12, 2022, the Department of Education (Department) published in the Federal Register a notice of proposed rulemaking (NPRM) to amend its regulations implementing Title IX. One of the purposes of that proposed rule change was to “articulate the Department’s understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” 

WDI USA strongly opposes any efforts to redefine sex to include the nebulous category of “gender identity” and maintains that all federal efforts to redefine sex to include “gender identity” rely on the Biden Administration’s repeated mischaracterizations of the Supreme Court’s decision in the matter of Bostock v. Clayton County. A good explanation of how the Biden Administration has repeatedly mischaracterized the Bostock decision can be found in the District Court’s opinion in Neese v. Becerra.

On April 6, 2023, the Department announced a new proposed rule, the intention of which is to “set out a standard that would govern a recipient’s adoption or application of sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their [sic] gender identity.” This is referred to as the “Athletics NPRM.” It also published a fact sheet to accompany the new proposed rule. 

In the Athletics NPRM, the Department proposes amending § 106.41(b) of its Title IX regulations to provide that, if a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with her or his “gender identity,” those criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with her or his gender identity would be limited or denied. The proposed regulation would not prohibit a recipient’s use of sex-related criteria altogether. Instead, the proposed regulation would require that a recipient meet this standard for any sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with her or his “gender identity.”

WDI USA is pleased to see that the Department: (1) is no longer proposing to redefine sex to include “gender identity;” and (2) now appears to acknowledge the material reality of sex.

However, we have several concerns with the current proposed rule: 

• The Department appears to be chiefly concerned with how Title IX was intended to benefit, and has benefitted, students, ignoring the fact that the statute was intended to benefit, and has benefitted, women and girls. The substitution is inaccurate and an insult to the Japanese-American woman who co-authored Title IX (Representative Patsy Mink).
  
• According to the fact sheet, “The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are.” What the Department means here is that the proposed rule would establish that policies violate Title IX when they maintain sports teams that are exclusively based on sex. But for Title IX purposes, the relevant part of who a person is, is that person’s sex. In addition, a federal district court has recently ruled that states (and the schools within them) may, consistent with both Title IX and the Equal Protection Clause of the Constitution, maintain single-sex sports. The Department cannot, as a matter of law, prohibit schools from doing something that the Constitution and federal law permit them to do.
  
• Secretary Cordona stated: “Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages. Beyond all the benefits to physical and mental health, playing on a team teaches students how to work hard, get along with others, believe in themselves, and build healthy habits that last a lifetime. Today’s proposed rule is designed to support Title IX’s protection for equal athletics opportunity. We welcome and encourage public comment on the proposed regulation and will continue working to ensure Title IX’s effective protection for all students.” But this is a complete mischaracterization of Title IX’s actual intent, which was to benefit women and girls as a sex class. Representative Edith Green was one of Title IX’s authors and staunchest advocates. In November of 1971, as reflected in the Congressional Record, Representative Green stated: “All that this title does is to ask that a woman be considered as a human being, that her qualifications, her high-school work and other qualifications be considered in the same fashion as those of a male applicant.”
  
• The proposed rule would require schools to take into account “differences in grade and education level, level of competition, and sports … for any eligibility criteria that would restrict transgender students from participating on teams consistent with their gender identity.” Schools can and should take into account differences in grade and education level, level of competition, and sports for purposes of determining which teams ought to be mixed sex. For example, it might be appropriate for schools to designate teams as mixed sex if there is a small number of girls who want to participate on a particular team but there are not enough such girls to create a female-only team. In such instances, and considering grade level and level of competition, mixed-sex teams might be appropriate. This should not, however, have anything to do with “gender identity.”
  
• The Department seems to think that “elementary school students would generally be able to participate on school sports teams consistent with their gender identity and that it would be particularly difficult for a school to justify excluding students immediately following elementary school from participating consistent with their gender identity.” This perpetuates the preposterous and extremely dangerous idea that children in elementary school have “gender identities,” even if some teenagers and adults claim to. WDI USA has documented numerous examples of millions of young children being “systematically indoctrinated by their schools into the regressive ideology that everyone has a ‘gender identity,’” that “the indoctrination starts in the earliest school years,” that “it’s happening in red and blue states, big city and small town schools,” and that “children are inundated by gender identity ideology from all sides, over and over again, as though ‘gender identity’ were real, and as though it is more important than the material reality of biological sex.”

In summary, the Department’s proposed rule is to clarify that “if a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their [sic] gender identity, those criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

This is an acknowledgement of the material reality of sex, which WDI USA is pleased to see. However, it also assumes that “gender identity” is a coherent concept that might, under some circumstances, be permitted to obscure the material reality of sex, which should never happen. And the Department seems to expect schools to understand how to navigate all of this even if they want to maintain single-sex sports, which Title IX and the Constitution permit them to do. 

Maintaining female-only sports is always substantially related to the achievement of an important educational objective (the inherent purpose of Title IX).

As for “minimizing harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied,” WDI USA emphasizes that it is always appropriate to minimize harms to students who are confused about their sex by helping them to accept themselves as they are – female or male.

The Athletics NPRM has been made publicly available, but it has not yet been published in the Federal Register. Once it is published in the Federal Register (which should be later this month), members of the public will have 30 days to comment. WDI USA plans to provide guidance for people who wish to comment.

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