Judge blocks Biden administration’s inclusion of ‘gender identity’ in Title IX regulations

The Biden administration’s executive order, set to take effect Aug. 1, would interpret Title IX’s sex discrimination prohibition to include a new prohibition on discriminating on the basis of a person’s “gender identity.” The rule would prohibit educational institutions receiving federal funds from enforcing any policy or practice that “prevents an individual from participating in an educational program or activity consistent with his or her gender identity,” even if the individual’s stated gender identity is different from the individual’s biological sex.

While the regulation itself does not specify how the rule would be enforced in practice, the attorneys general who sued the Education Department said the rules would force schools and colleges to allow biological males who identify as females access to athletic competitions, locker rooms, bathrooms and dormitories designated for women only — even if states have passed laws to prevent them.

“The Biden administration’s radical redefinition of gender will do more than just transform our education system,” Rachel Rouleau, general counsel at Alliance Defending Freedom, a group representing Female Athletes United, said in a statement.

“(The law) means that girls will be forced to undress in locker rooms and share hotel rooms with boys during overnight school trips, teachers and students will be required to refrain from telling the truth about their biological sex, and girls will lose the right to compete fairly in sports,” Rouleau said. “The court was right to put the administration’s illegal efforts to rewrite Title IX on hold while this critical lawsuit continues.”

When Congress first added Title IX sex discrimination provisions to federal law in the 1970s, the goal was to ensure girls and women had equal access to education. The law prohibits discrimination on the basis of sex but makes no mention of gender identity.

In his ruling, Broomes found no justification for the Department of Education’s interpretation of the sex discrimination provisions in Title IX to include a prohibition on discrimination based on “gender identity.” Instead, he ruled that “the court finds that the unambiguous, plain language of the statutory provisions and the legislative history make it clear that the term ‘sex’ denotes the traditional conception of biological sex, in which there are only two genders: male and female.”