What is going on with Title IX?

Title IX has been in the news a lot lately, and there appears to be a considerable amount of confusion about what’s actually going on. The mainstream legacy media’s headlines are contributing to this confusion. Here is a quick explainer.

“Title IX,” of course, refers to Title IX of the Education Amendments of 1972, which reads, simply:

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.

It was enacted into law and signed by President Nixon in 1972. Although it has come to be associated primarily with women’s sports, its original intention was to protect women and girls throughout the educational arena.

One of its primary authors and fiercest proponents was Representative Patsy Mink, a Japanese-American woman born on a Hawaii sugar plantation who eventually made her way to the House of Representatives. When she died in 2002, the law was renamed in her honor. So although we all still refer to it as Title IX, its official name is the Patsy Mink Equal Opportunity in Education Act.

In 1975, under President Ford, the U.S. Department of Education promulgated implementing regulations to govern enforcement of Title IX in the nation’s schools. Those regulations explicitly permit sex-separation under certain circumstances. For example, recipients of federal funding under Title IX may maintain sex-specific housing facilities;¹ toilet, locker room, and shower facilities;² human sexuality classes;³ scholarships;⁴ and sports teams, “where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”⁵ History buffs can view the original documents online, thanks to the Gerald R. Ford Presidential Library.

In other words, in 1975, the U.S. Department of Education understood that when equality of the sexes is the goal, separating students by sex makes sense under certain circumstances. That has since all gone out the window.

In May 2016, the Departments of Justice and Education issued a “Dear Colleague Letter” to schools across the country, instructing school officials to interpret the word “sex” in Title IX to include “gender identity,” where “gender identity” was defined to mean “an individual’s internal sense of gender.” Few people were aware at the time that Democratic Party officials were already trying to obliterate sex in the law by redefining it to include the vacuous, sexist, and homophobic concept of “gender identity” (more on that in a minute).

Later that year, the radical feminist organization Women’s Liberation Front (WoLF) sued the administration, arguing that the Dear Colleague Letter was procedurally flawed and constituted unlawful sex discrimination. I was on the WoLF board of directors at the time and contributed to the drafting of the complaint. Then November 8, 2016 happened and the incoming administration eventually withdrew the Dear Colleague Letter. The suit was dismissed without objection because by that time, there was nothing to sue over.

When I say that “gender identity” is vacuous, sexist, and homophobic, I mean first that it really doesn’t have any coherent meaning worth protecting in the law. I mean, if a person wants to have a “gender identity,” sure, go for it. Have a unicorn identity, a mushroom identity, or a chair identity. People are weird and allowed to have whatever identities they want to. But sex is real in a material sense and if public policy is going to be based on material reality, it needs to acknowledge that. When I say “gender identity” is sexist, I mean that it obliterates the material reality of sex, making it impossible to protect women and girls as a sex class. When I say it is homophobic, I mean that it denies the reality of same-sex attraction and you can’t protect same-sex rights if you don’t acknowledge the material reality of sex in the law. Notably, the Supreme Court used the phrases “opposite sex” and “same sex” numerous times throughout its 2015 Obergefell v. Hodges ruling legalizing same-sex marriage, seemingly without confusion.

Two different federal courts issued rulings last week concerning various moves the Biden Administration has made in recent years to obliterate the meaning of the word “sex” in Title IX. But the rulings are very different, in scope and in impact. In order to understand why, readers need to understand what the Biden Administration has done since taking office with the intention of obliterating sex under Title IX (and in other areas, but I’ll focus on Title IX here).

On January 20, the first day of taking office, the Administration issued Executive Order 13988, on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. That order stated it’s the policy of the Administration to interpret the word “sex” to include “gender identity” for all purposes under federal administrative law. To justify this policy, the Administration relied on the Supreme Court ruling in a case called Bostock v. Clayton County, which the Court had issued in June 2020. The Biden Administration’s reliance on Bostock for this purpose was completely misplaced, but that hasn’t stopped the Administration from lying to the American people about what Bostock said for the past three years. The order went on to mandate that every single federal agency rewrite all its rules to redefine sex to include “gender identity.”

In the first six months of 2021, the Administration issued no fewer than three “guidance documents” (sometimes referred to as “memos” or “orders”) telling educational institutions across the country that they have to interpret the word “sex” to include “gender identity” for all Title IX purposes (“2021 guidance documents”). It did all this without issuing any public notice or opportunity for public comment, in complete violation of federal procedural law. In the summer of 2021, twenty states sued the Administration for this in federal court in Tennessee. WDI USA filed an amicus brief agreeing with the states that the Administration’s 2021 guidance documents were procedurally flawed and adding that they constituted unlawful sex discrimination under the Equal Protection Clause of the 14th Amendment. In September 2022, the federal district court agreed with the states’ procedural arguments and blocked the 2021 guidance documents from taking effect in the states that had sued (it did not address our arguments about sex discrimination). The Administration appealed the case to the Sixth Circuit Court of Appeals, where it has been sitting ever since.

So by 2022, the Biden Administration had figured out that if it was going to obliterate the material reality of sex under Title IX, it was at least going to have to comply with applicable federal procedural law. So in June 2022, it announced new changes to the Title IX regulations and this time it managed to give notice and an opportunity for public comment. Like the 2021 guidance documents, these proposed changes would obliterate sex in the law by redefining the word “sex” to include “gender identity” for all Title IX purposes. The Department of Education received over 200 thousand public comments to that proposed rule, which is more than any other rule change in the history of the Department. I’m proud to say that WDI USA encouraged our thousands of supporters to submit public comments explaining why obliterating the material reality of sex is bad for women and girls.

People who follow these matters waited anxiously to see what the Department would do and in April of this year, it made the changes final, effective August 1, 2024 (final April 2024 rule changes). So as of writing, the 1975 regulations are still in place, but depending on what happens in the next few weeks, starting this August, schools all over the country may be required to pretend that sex isn’t real and that some men are actually women if they have a “woman gender identity.” If the Administration’s final April 2024 rule changes survive, schools will be required to force female athletes to compete with and against male athletes who claim to have a “woman gender identity.” Female students all over the country will be required to share housing units, toilets, showers, and locker rooms with men who claim to have a “woman gender identity.”

On June 11, a federal court in Texas issued a ruling in the matter of Texas v. Cardona, et al. Various media outlets ran with headlines designed to make people think the court had thrown out the final April 2024 rule changes, and a lot of people who care about women and girls as a sex class understandably got very excited. However, that’s not what happened. All that court really did was block the 2021 guidance documents from taking effect in the state of Texas. That’s great if you care about women and girls in Texas (and I do), but the court’s ruling did not affect the final April 2024 rule changes at all and its scope did not extend beyond Texas.

But two days later, something interesting happened. On June 13, a federal court in Louisiana issued a ruling in the matter of Louisiana, et al. v. Department of Education, et al. that did affect the final April 2024 rule changes–the court blocked those changes from taking effect in Louisiana, Mississippi, Montana, and Idaho. That is a big deal, and everyone who cares about women and girls should celebrate. And the ruling is a great one if you care about women and girls as a sex class and/or freedom of speech, because the judge ruled that the plaintiff states are likely to succeed on the merits of their claims that the Biden Administration has unlawfully rewritten Title IX by redefining sex and impinged on the free speech rights of students and teachers not to use “preferred pronouns” if they don’t want to. Big win if you care about these things.

Then, literally while this piece was going to print, on June 17, a different federal court (the District Court for the Eastern District of Kentucky) issued yet another ruling blocking the final April 2024 rules from taking effect in Tennessee, Kentucky, Virginia, West Virginia, Ohio, and Indiana. These are the opening paragraphs of that ruling:

There are two sexes: male and female. [footnote 1] More than fifty years ago, Congress recognized that girls and women were not receiving educational opportunities that were equal to those afforded to their male counterparts.  It attempted to remedy this historical inequity through the passage of the Education Amendments Act of 1972, commonly known as Title IX.  And for more than fifty years, educational institutions across the country risk losing federal funding if they fail to comply with the dictates of the statute. 

This case concerns an attempt by the executive branch to dramatically alter the purpose and meaning of Title IX through rulemaking.  But six states, an association of Christian educators, and one fifteen-year-old girl object.   As they correctly argue, the new rule contravenes the plain text of Title IX by redefining “sex” to include gender identity, violates government employees’ First Amendment rights, and is the result of arbitrary and capricious rulemaking.  If the new rule is allowed to take effect on August 1, 2024, all plaintiffs will suffer immediate and irreparable harm.  Because the plaintiffs are likely to prevail on the merits of their claims, and the public interest and equities highly favor their position, the new rule will be enjoined, and its application stayed. 

Footnote 1: The defendants made this concession during oral arguments on the plaintiffs’ motion for injunctive relief. The parties have agreed to little else.

This is very good news for women and girls, and I’m happy to see the Biden Administration concede that there are two sexes.

So, here’s where things stand as of this writing. The 2021 guidance documents are not in effect in the 21 states that sued to block them (including Texas). They are in effect in the remainder of the states. But as far as I can tell, these guidance documents are no longer really even all that relevant because the Administration’s final April 2024 rule changes fixed them by curing their procedural flaws. Even so, the final April 2024 rule changes are flawed for other reasons, as the Louisiana federal court told us last week and the Kentucky federal court has confirmed. The final April 2024 rule changes attempt to rewrite Title IX unlawfully by redefining sex, violate the First Amendment, and are arbitrary and capricious. There are five other lawsuits floating around that are similar to the ones out of Louisiana and Kentucky. The final April 2024 rules have been blocked in 10 states.

It’s anyone’s guess what will happen before the final April 2024 rule changes take effect on August 1, but I’m feeling optimistic.

Kara Dansky
President, WDI USA

1. 34 C.F.R. §106.32(b)(1). ↩︎
2. 34 C.F.R. §106.33. ↩︎
3. 34 C.F.R. §106.34(a)(3). ↩︎
4. 34 C.F.R. §106.37(c)(2). ↩︎
5. 34 C.F.R. §106.41(b). ↩︎

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