While U.S. citizens, and particularly women and parents, should be celebrating the golden jubilee of Title IX, marking 50 years of protection against sex discrimination, they are instead feverishly trying to stop the Biden administration from implementing sweeping changes to the 1972 federal civil rights law. The proposed regulations undermine the initial premise of Title IX, prohibiting sex discrimination in educational programs and activities receiving federal financial assistance. These regulations will chill speech and enshrine gender identity as a reality, which could trump sex-based, freedom of speech and religious rights.
The new protected class
The federal government is using its financial might to force capitulation to the illogical mantra that a person’s belief about his gender is reality and that anyone who questions or disagrees with that belief system is guilty of sex-based harassment. Protections based on sex will be rendered meaningless. The “protected class” will no longer be based upon immutable biological characteristics but instead upon a range of people’s “feelings about their sex”—feelings that are subjective, fluid and often transitory. The confusion and harm these regulations will cause to children and youth cannot be underestimated, nor can the erosion of parental rights.
On Sept. 12, 2022, the Department of Education will close public comments to its Notice of Proposal Rulemaking, a 700-page document rife with inconsistencies and double-speak. Essentially, the executive branch will promulgate new law expanding discrimination protections based on sex to include gender identity and sexual orientation. Notably, none of these terms are defined, resulting in incomprehensible regulations that guarantee a barrage of lawsuits from both sides of the aisle. Few students, from preschool to graduate school, will be immune to the deleterious effects of these regulations should they be enacted.
Original protections and their results
President Biden’s proposed regulations are the antithesis of the original purpose of Title IX. Title IX marked a watershed moment when enacted in 1972. Its primary author, Representative Patsy Takemoto Mink, drafted the legislation to eradicate inequities in education opportunities for women. Title IX was a funding amendment that prohibited federally funded educational institutions from discriminating against students and employees based on sex. Its original language was short and sweet: “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 an education program or activity receiving Federal financial assistance.”
Title IX’s application had a profoundly positive effect on girls and women. The number of girls completing high school and obtaining college degrees skyrocketed. In 1972, fewer than 295,000 females engaged in high school sports; today those numbers exceed 3.2 million. Collegiate female athletes increased from about 30,000 to more than 190,000, with about half of athletic scholarships in Division I schools being awarded to females. The benefits of female participation in sports are well established in both physical and mental-health domains. With the proposed regulations, as men who identify as women take their spots on teams, women and girls will risk physical harm and the loss of their hard-earned team placements, scholarship money and podium positions.
Playing pretend has real and underreported consequences
Those who deny biological differences are required to reject established science regarding the physical development of females and males in order to persuade rational thinkers that the lowering of testosterone in a male body evens the playing field between women and trans-identified men. It does not. Men and women’s bodies differ beyond hormones. Any anthropologist can accurately determine the biological sex of human remains based on these clear differences.
Women have been silenced into accepting biological males on their teams, in their locker rooms, and on the scoreboards. Lia Thomas, a trans-identified male at the University of Pennsylvania, smashed women’s swimming records while Thomas’ teammates could only complain anonymously, in fear of disciplinary actions that could have led to the loss of scholarships and expulsion from the team. Thomas’ teammates were subjected to his visible penis in the women’s dressing room. Prior to Penn’s inclusivity policy, which models Biden’s proposed regulations, this would have been considered sexual harassment, but the women on Thomas’s team lost the ability to bring a claim against Thomas. In fact, Thomas can file a sex-based harassment grievance against any female who makes him feel unwelcome in a female-space! This situation is emblematic of a predicament to which all females in any institution receiving any amount of federal funding could be subjected if the changes to Title IX are enacted.
In the realm of K-12 educational institutions, the same scenario will play out. The traditional safeguards for the dignity of females will disappear. Girls will be required to share intimate spaces with male-bodied students and even adult trans-identified men. Many federally funded K-12 schools have overnight trips. So long as the male identifies as female, that person can house with the biological females, with no exceptions made for adult chaperones. There is no requirement that parents be informed of the possibility that their children will be changing clothes in, and sleeping in, spaces with opposite-sex children, teens and adults. Even if a parent were to inquire whether the cabins are sex-segregated, because of the distortion of language, schools can legally answer in the affirmative.
In an interview on Lisa Selin Davis’ “Broadview” podcast, Candace Jackson, a California attorney, who led the Office for Civil Rights and then served as deputy general counsel in the Department of Education under former Secretary of Education Betsy DeVos, stated that inclusion of gender identity in Title IX creates an inherent conflict. One cannot uphold distinctions and categorizations that are based upon an objective concept of sex while also upholding distinctions and categorizations that are based upon subjective identity. Jackson stated that under the proposed regulations, subjective gender identity will eclipse rights based upon biological sex.
The lengthy preamble to the proposed regulations ironically purports to argue that the new Title IX regulations will prevent sexual assaults. It recognizes that pursuant to the Centers for Disease Control and Prevention one in four women have experienced completed or attempted rape and one in three women have experienced sexual harassment in a public space. While men’s rates of forced sexual engagement is dramatically less frequent, perpetrators of sexual crimes are overwhelmingly male. Providing entrance into female spaces by anyone identifying as female will only increase incidents of sexual assaults on females. Sexual assaults are crimes of opportunity.
How Biden Title IX changes show up in classrooms
In the last few years, federally funded educational institutions have inserted gender identity into their curricula. Even impressionable students as young as four are being taught, by often the most influential person in their lives (second to their parents or guardians), that they were assigned sex at birth rather than that their sex was observed (with near perfect accuracy). Instead of biological reality, indelible seeds are planted in that child’s mind that his or her body may be all wrong.
The propaganda continues at every grade and, potentially in every class. Even mathematics has entry points in word problems that reference transgender-identified persons. Transgender advocacy groups, like the Gay, Lesbian and Straight Education Network (GLSEN), hired to provide and present gender-identity-focused curricula, have millions to spend on “re-educating” children. (In 2019, GLSEN had assets in the range of $6.44 million, which jumped to $15 million in 2021.) There is no practical way to avoid exposure to gender-identity lessons in publicly funded schools, unless the state, parents or school boards are willing to challenge the curricula in the courts.
Biden’s regulations require that all students either believe that all humans have a gender identity—a gender essence, soul or thought—or that the student at least feign belief. A student will be required to ignore their instincts regarding any student that identifies as the opposite sex. A student, who may not believe in a gender identity on the basis of religious beliefs or otherwise, will be required to use a student’s chosen name and whatever pronouns that student dictates on that particular occasion. Under Biden’s proposed Title IX regulations, failure to do so is tantamount to sexual discrimination.
Even if the student uses the trans-identified student’s legal name outside of that student’s hearing, under these regulations the student can be reported to the Title IX coordinator and be reprimanded. Punishment for name infractions can include public shaming, a lecture, gender-identity training, suspension and even expulsion. All retributions may mark the student as a sexual harasser, a moniker that is not easily shaken. These forms of punishment will quell any expression of personally held beliefs, as well as chill institutions’ employees from voicing objections to the unscientific and injurious belief system. Language and thought-control police will become the role of every student, instructor and employee of the educational institution.
The new rules multiply problems they claim to protect against
Use of preferred names and pronouns is not innocuous. Concretization of a false identity cements a child’s belief that he or she is “transgender.” Studies show that if a trans-identified child is not affirmed, upwards of 88% will accept their biological reality post -puberty, avoiding irreversible medical intervention that carries increased risks for long-term negative health effects.
In the adolescent cohort, it is well known that clusters of friend groups adopt gender identities. As with anorexia, bulimia, cutting and suicide, teenagers are most suspectable to social contagions. It is axiomatic that if all of the adults in a child’s life confirm that he is the opposite gender, he will continue to adopt that persona. Affirmation by teachers will stoke the social contagion aspect of gender dysphoria.
Title IX changes force dangerous political ideologies over parental rights and discretion
Title IX’s proposed regulations usurp parents’ fundamental right to direct the upbringing, education and care of their children—a right granted under the 14th Amendment of the U.S. Constitution. Teachers are trained to keep gender-related secrets from parents who are in the best position to counsel and support their child, triangulating the relationship between parent, child and teacher, creating a wedge between child and parent. The proposed changes provide a governmental shield for teachers to adopt a student’s chosen name, identity and pronouns outside the knowledge of the student’s parents. Public institutions do not have the right to insert their belief systems into the education of students, but under Title IX regulations that is precisely what the current administration is advocating.
Creating the illusion that parents do not have their child’s best interest in mind is deeply destabilizing for children. The effect of concealment is that the child is torn between two authoritative groups, one that will disappear after nine months of instruction, and one that unconditionally loves the child and has no timeline for abandonment. This confusion leads to depression and anxiety for the child. Children placed in this unenviable position are primed for self-harm, suicidal ideation and running away. Parents who do not endorse their child’s gender identity risk the school reporting them to Child Protective Services. Parents have lost custody of their children over a name and a pronoun. The Biden administration clearly endorses gender identity over parental rights and the sanctity of the family unit.
Changes will result in fake sexual assault and harassment charges, funding losses and lawsuits
The proposed regulations of Title IX include additional concerning changes, such as removal of due process protections against false accusations of sexual assault and harassment. The reach of these changes extends off campus and beyond the U.S. borders covering guest speakers on campuses. Robust discourse on issues such as gender identity will be stymied. College campuses will be echo-chambers of group-think as any opposing views can be silenced under threat of Title IX violations.
Schools that choose to ignore the proposed regulations risk losing federal funding which averages 6% to 8% of school budgets, according to Jackson. However, if approved, educational institutions will find themselves in a “Sophie’s choice” predicament, caught between dueling lawsuits. Schools may find themselves sued by transgender students on the basis of sex-based harassment claims, and parents, students and trans-advocacy groups filing suits against school boards that do approve gender-identity inclusive curricula, while also managing lawsuits filed by homosexual and lesbian students based on the loss of their right to activities limited by sex characteristics as granted by Title IX. Likewise, girls and woman will have standing to file suits on discrimination based upon their immutable sex, as will boys and men.
The attorneys general in 20 states have filed suit asserting that the guidance issued by Biden’s administration regarding Title IX in June 2021, which mirrored the new proposed regulations, violates their states’ laws. In July, a federal court in Tennessee issued a temporary injunction prohibiting educational institutions from complying with the Department of Educations’ guidance in 20 states’ favor, finding that the guidance may infringe upon the states’ right to enact laws. The twenty states are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee and West Virginia. Individual school districts are also gearing up to place parental, religious, First Amendment and sex-based rights ahead of Title IX regulations.
A myriad of lawsuits across the country, including in blue states, have been filed against public schools and educational institutions by parents of children who have been harmed by gender identity. Female athletes have filed suits, as have teachers and professors. To date, most of the lawsuits have been settled or ruled in favor of the parent or teachers refusing to acquiesce to gender ideologues. Suits have been filed in Florida, California, Connecticut, Kansas, Ohio, Virginia and Wisconsin.
Ultimately, the courts will end up deciding whether discrimination based upon the nebulous concept of gender identity is protected by Title IX. In the meantime, parents of school-aged children have the unappealing and formidable task of first determining what their public school’s or even private school’s gender-identity policies are, and then balancing the risk of gender indoctrination by sending their children to federally funded schools with the cost of sending them to a private school with non-ideological curricula.
The effect of bringing gender ideology into the classroom is apparent. There is a discernable uptick of parents homeschooling their children. Parent groups have formed to challenge school boards. For the parents of college-aged students, many are deciding that their children will skip college for now. Certainly, parents of gender-questioning kids are refraining from enrolling their children, knowing the ease at which their children would be able to access evidence-free, irreversible medical treatments. As a parent of a daughter who is two years away from college, I will be looking for the most conservative university available, and even then she may have to wait until sex-based safeguards are reinstituted.
Editor’s note: Public comments on Title IX changes can be submitted directly to the Federal Register. Carbon-copied comments will not be counted. The Federal Register comment page is here: Title IX public comment.
The deadline to comment is September 12, 2022.
Information from a child and parent rights group regarding how to craft a public comment can be found here: child and parental rights campaign.
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Erin Friday, Esq. is a licensed California attorney and co-lead of the U.S. branch of Our Duty, a parent group dedicated to protecting children from gender ideology. Friday is a lifelong Democrat who voted for same-sex marriage.