Biden Administration broadens Title IX to include sexual orientation, gender identity

• The 1972 law was originally intended to level the playing field for women, but in recent years, has been used to expand LGBTQ rights.

Title IX was originally intended to give women an equal playing field in educational attainment, particularly at public schools and institutions of higher learning that receive federal financial aid. The 1972 law sought to give equal opportunity to women, including providing access to sports programs and other previously male-dominated spaces.

However, presidential administrations supportive of the LGBTQ movement have used Title IX to expand protections and access for people who identify as lesbian, gay or transgender.

“One of the things that’s interesting about Title IX is how, with its original goals, how fully it succeeded, more so than any other civil rights law,” R. Shep Melnick, a professor of American politics at Boston College, told the New York Times. “And suddenly, the focus changed from ‘what were the opportunities within the educational institutions’ to ‘how are we going to change how people think about sex, gender, and generally how we’re going to undo stereotypes.’”

On Friday, the Biden Administration took additional steps to that end.

The U.S. Department of Education has issued its Final Rule update to Title IX, broadening the law to prohibit discrimination based on “sex stereotypes, sexual orientation, gender identity, and sex characteristics.”

The new rule also requires schools to respond promptly to all complaints of sex discrimination with a “fair, transparent, and reliable process that includes trained, unbiased decisionmakers to evaluate all relevant and not otherwise impermissible evidence.”

In addition, schools will be required to communicate their nondiscrimination policies and procedures to all students, employees, and other participants in their education programs so that students and families understand their rights.

“These final regulations clarify Title IX’s requirement that schools promptly and effectively address all forms of sex discrimination,” said Assistant Secretary for Civil Rights Catherine E. Lhamon in a statement. “We look forward to working with schools, students, and families to prevent and eliminate sex discrimination.”

The Final Rule did not explicitly address biological male students attempting to compete in women’s sports, a topic that has been at the forefront of the transgender movement in recent years. Yet, that is under consideration by the Biden Administration.

The Education Department said in a statement that the rulemaking process is still ongoing for a Title IX regulation related to athletics. The Department proposed amendments to its athletics regulations in April 2023, and received over 150,000 public comments, which by law must be carefully considered.

That April 2023 “fact sheet” states:

“Participation in school athletics is an important component of education and provides valuable physical, social, academic, and mental health benefits to students. The proposed rule affirms that students benefit from the chance to join a school sports team to learn about teamwork, leadership, and physical fitness. 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. The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation. The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.”

Mississippi is among nearly half of the states in the U.S. that have prohibited biological males from competing in women’s sports.

Riley Gaines, the former collegiate swimmer who has made it her mission to challenge the entry of men into women’s sports, expressed extreme displeasure with the new Final Rule and what could still be coming from the Biden Administration.

“The Biden [Administration] has just officially abolished Title IX as we knew it. Now, sex = gender identity,” Gaines posted on X (formerly Twitter) on Friday, adding, “In a nutshell, the new rewrite means: men can take academic and athletic scholarships from women, men will have full access to bathrooms, locker rooms, etc., men could be housed in dorm rooms with women, students and faculty must compel their speech by requiring the use of preferred pronouns[.]”

Gaines said if the guidelines are ignored or even questioned, “then you can be charged with harassment.”

Gaines is a record setting swimmer that, at a NCAA Championship event, tied a biological male who had recently begun to make his transition after competing the previous three years as a male athlete. That male swimmer was allowed by the NCAA to compete in the women’s swim tournament, and despite a tie, he was given a trophy over Gaines.

In June 2022, on the 50th anniversary of the signing of Title IX, President Joe Biden said in a statement issued by the White House that he was committed to protecting the progress of women but added that he was “working to achieve full equality, inclusion, and dignity for women and girls, LGBTQI+ Americans, all students, and all Americans.”