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. Title IX (20 U.S.C. §1681-§1688).
On August 1st, the very day that President Biden’s addition to Title IX was put in place, the ramifications of such policies were displayed on the global stage. The Paris Olympics featured a biological female boxer who fought against a “female” that had failed gender eligibility requirements in other boxing tournaments, has the testosterone of a male, and has XY chromosomes.
Title IX was originally signed into law in 1972 to protect people from sex-based discrimination in education programs and activities that received federal funding. Examples of the types of discrimination covered by this code include, but are not limited to, pregnancy, sexual harassment and violence, and equal athletic opportunity. Starting August 1st, 2024, the Biden administration has added gender identity and sexual orientation to sex-based discrimination. What will this addition to Title IX look like?
According to a recent Education Week analysis,
“The Biden administration’s Title IX rewrite has drawn at least eight lawsuits; 26 states have signed onto the lawsuits, and the rule is on hold in 26 states. In addition to those states, one school district, two students, and five conservative advocacy organizations have signed onto the legal challenges” (Stanford).
Currently, the lawsuits have resulted in injunctions, which stopped the ordinance from going into effect in those states that sued until the ruling is made in court. Not surprisingly, the majority of the states that signed onto the lawsuits include the more conservative leaning Midwest and South. Consequently, the addition to Title IX is currently blocked from being enacted in schools with members of, or children of members of, groups such as Moms for Liberty, Young America’s Foundation, and Female Athletes United.
The Education Department’s case law justification for the addition to Title IX is Bostock v. Clayton County, which involved three cases the Supreme Court decided at once. George Bostock, who was an employee of the county, lost his job after mentioning he was interested in a gay softball league at his place of employment. Similarly, R.G. & G. R. Harris Funeral Homes fired “Aimee” Stephens when he stated that he was going to begin presenting and working as a woman, although he presented himself as male when he was hired. In the third case, Altitude Express fired Donald Zarda after Zarda mentioned he was gay.
The trial court ruled based on past precedent that Title VII, the Civil Rights Act of 1964, did not cover discrimination based on sexual orientation or gender identity. The case then eventually made its way up to the Supreme Court, and they ruled 6-3 that in order to determine if the employee was transgender or gay, they needed to look at what their biological sex was. The discrimination question ended there. This made the firings of the employees discriminatory under Title VII. These Titles are different because in Title IX, you are able to discriminate against biological sex within the exceptions included, like having some sports separated by biological sex as well as locker rooms, shower rooms, and bathrooms. The question then becomes, that Title VII does not have, is the discrimination based on biological sex justifiable?
In the recent case ruling on Title IX, State of Arkansas v. U.S. Department of Education, both the plaintiff and defendant argued what discrimination is okay under Title IX. The standard for what is justifiable is encapsulated in this question: is the discrimination causing more than de minimis harm to a person? According to the Thomas Reuters legal glossary, de minimis harm is defined as, “too small or meaningful to be taken into consideration.” Because the plaintiff, the states wanting the addition to be blocked, met its criteria in proving that their case would succeed on the merits, which is defined in this court’s opinion as “when it demonstrates a fair chance, not necessarily fifty percent, that it will ultimately prevail under applicable law,” an injunction resulted. Because of this ruling, schools in states that signed onto the lawsuits will not be forced to let men in women’s sports, locker rooms, shower rooms, and bathrooms. Clearly, the court’s opinion on Title VII in Bostock v. Clayton is very different from the addition to Title IX and is not applicable.
Senator Ted Cruz (R-TX) stated,
“Title IX was meant to protect female students from sex discrimination. Sadly, the Biden administration’s new Title IX rule does the exact opposite and makes it harder for schools to protect women.”
On the U.S. Department of Education’s website, they discuss that the addition to Title IX will “protect against all sex-based harassment and discrimination; promote accountability and fairness; and empower and support students and families.” Yet, they fail to mention anything about how this will affect biological women.
The female Olympic boxer, Angela Carini from Italy, quit after being in the ring with the boxer for only 46 seconds. After her opponent’s hand was raised in victory, Angela fell to her knees in tears, crying out, “It’s not right, it’s not right!” Carini stated that she had never been punched so hard in her career; in fact, it is suspected that the boxer broke her nose with two punches. Although the boxer does not identify as transgender or intersex, the biological gender of this boxer is in question and was subsequently under investigation by the Olympic officials.
This highly publicized spectacle, unfortunately, isn’t an isolated incident. It’s yet another example of a troubling trend. Time and time again, we see less-than-average male athletes joining women’s sports and taking the gold. In 2022, 17-year-old Payton McNabb was hit in the head by a spiked volleyball from a transgender female, leaving her unconscious with brain damage and paralysis on her right side—the male volleyball player laughed as she went to the ground.
In Massachusetts on February 8th, 2024, a transgender female with facial hair was playing for the KIPP Academy girl’s basketball team and injured multiple players, including one that he wrestled the ball away from, leaving her to fall to the ground clutching her back in pain. The opposing team, the Collegiate Charter School, forfeited the game. In 2014, a transgender female MMA fighter left a skull fracture in his biological female opponent Tamikka Brents. Men are even winning Miss America pageants. Democrats and proponents of this addition to Title IX are either deluded or willfully ignorant of the scientific reality that on average men have greater physical advantages than women. This is not equality. This is injustice and a slap in the face to biological women.
The intention of Title IX was to protect sex-based discrimination against women who were participating in activities and educational programs that received federal funding. The irony of its modern evolution is that men have now made their way back around, stealing equality and fairness provided to women via Title IX. As the court cases play out, monumental decisions rest on the shoulders of the juries, judges, and justices deciding their outcomes.
If we are to truly protect women, it is our job to protect them from sex-based discrimination that the addition to Title IX would inflict on them in the states that have blocked it, and which it currently imposes on them in the states that have allowed it. Keep women’s sports, women’s locker rooms, and women’s scholarships for biological women. The only result of this hypocrisy will be more physical and emotional suffering.
