Biden's Title IX Changes: A Moot Point or a Radical Shift in Gender Politics?

Conservatives argue that the Biden administration's updates to Title IX will erase the advancements female-only spaces, free speech, and sports.

The Biden administration's finalized updates to Title IX, a landmark civil rights law that prohibits sex discrimination in educational settings, have ignited a firestorm of controversy. Conservative legal experts argue that the new regulations, which will take effect on August 1, 2023, will render Title IX a "moot point" by broadly interpreting "sex" to include gender identity and sexual orientation.

According to Sarah Parshall Perry, a senior legal fellow at the Heritage Foundation, the Biden administration is "turning the rule on its head" by allowing transgender women into female-only spaces and activities. She believes that this will undermine the gains made by the women's movement and put women at risk.

"The evisceration of legal womanhood is problem number one," Perry said. "It puts a target on the back of women who, for example, need to avail themselves of separate spaces in prison, domestic abuse shelters, or in sports."

Ilya Shapiro, the director of constitutional studies and a senior fellow at the Manhattan Institute, agrees that the expansion of Title IX's reach over the past 50 years has created complexities. He notes that Title IX was originally intended to provide equal opportunities for women, but it has now become a "general purpose discrimination" law with nebulous rules that can ensnare individuals unwittingly.

The Biden administration claims that the Title IX updates will promote accountability and fairness by requiring schools to prevent and remedy sex discrimination. However, critics argue that the new language will lead to increased discrimination claims, especially under the guise of "misgendering."

"An individual, based on gender identity must exhibit ‘more than de minimis harm,’” Perry said. "That could be something as easy to demonstrate as having your feelings hurt or proving that not being able to dorm with a biological woman when you’re a man is somehow depriving you of equal access to education."

One of the most contentious aspects of the Title IX updates is its impact on transgender participation in sports. While the Biden administration has said that sports are not implicated in the new regulations, conservatives argue that this is not the case. The final rule specifically states that Title IX covers "all aspects of the recipient’s education program or activity, including extracurricular activities."

"Local school administrators will face the untenable choice of going against the government's position and the inclusion of the term ‘athletics’ in the rule," Perry said. "So, they can tell us all they want that sports are not included, but it’s a head fake."

26 GOP-led states have filed suit to block the Title IX changes, arguing that the Department of Education is trying to "politicize our country’s educational system." The legal challenges are expected to go all the way to the Supreme Court, which will ultimately have to determine if "sex" under Title IX includes gender identity distinctions.

According to Ilya Shapiro, the end game of the legal battles over Title IX will be the Supreme Court's disposition. "Some key terms are just not defined, so there's going to be a lot of battles over that," Shapiro said. "Ultimately, though, I think the end game is going to be the Supreme Court’s disposition."