As Title IX Turns 50, Changes on the Horizon for Landmark Law
Title IX turns 50 years old this month, and while the 37 words that enshrine protection against gender discrimination into law won’t change, details of how the statute could be enforced might.
Title IX, of the Education Amendments of 1972, was passed that year, giving oversight to the U.S. Department of Education’s Office for Civil Rights (OCR). Title IX states:
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.
Straightforward as the spirit is, the implementation is considerably more complex, as is the understanding of Title IX as that law that gave us more women’s sporting opportunities. The law has come to govern opportunities in athletics, education, safe working conditions, gender-based and sexual harassment and assault and speech issues.
The dimensions of Title IX’s purview most likely to be altered by administration of President Joe Biden far exceed its ramifications for sports. The Biden administration announced in December that draft rules were forthcoming, and the reveal has been delayed from April to May and has yet to formally happen.
Title IX is not a static document – its power rests in lengthy regulations formulated after its passage and a mountain of court precedent in how the law is interpreted. The administration of President Barack Obama undertook new guidance in 2011. In 2020, the Department of Education, under President Trump appointee Betsy DeVos, tackled enforcement near the line between free speech and sexual harassment. It’s one of the principles the Biden administration it likely to take aim at. (It’s worth restating that the balance of enforcement and due process for allegedly discriminatory acts, particularly on college campuses, constitutes a much, much larger share of the impetus and implications for Title IX reform and ramifications and the reaction to the leaked changes thus far.)
Proposed changes have been leaked gradually, and many expert watchers of education law believe that indicates that the administration is set in those changes. Among the leaked changes that has garnered the most attention is an end to enforcement by the OCR against “statements not subject to cross-examinations,” most notably in sexual misconduct cases overseen by colleges that some fear could infringe upon the right to due process of accused perpetrators.
The most pressing potential change for athletics regards gender discrimination. (Tackling discrimination against LGBTQ groups was an explicit aim in reviewing the regulations starting in 2021.) Specifically, updates floated in the fall of 2021 involve an important insertion of, “an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” In the draft regulations, the phrasing includes provisions against, “Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”
That opens up the possibility of preventing discrimination on the basis of gender identity, such as for transgender athletes to compete under their preferred rather than assigned gender.
Such a move could add fuel to an already hot debate about the participation of transgender athletes, particularly transgender women. (University of Pennsylvania swimmer Lia Thomas has been the most visible lightning rod for this controversy.) Seventeen states have passed laws, many in the last two years, banning transgender students from participating in sport conforming to their gender identity.
Inserting gender identity to the conversation at the federal level, in addition to guaranteeing a new flood of litigation, could call into question the legality of those state statutes. It would also add another dimension by which recipients of federal financial assistance (i.e. universities) could have their athletic offerings deemed equal for all populations or showing evidence of discrimination.
Stand up for the real daughters that title 9 allowed to be in sports for
So, under the new Biden administration guidance, a man that identifies as a woman, even though he has male reproductive equipment (like, you know, Lia Thomas) might just be rooming with a young woman. It would be a violation of federal law under this guidance if the school refused to put this man identifying as a woman in a dorm room with a young woman.
Let’s not just blame the Biden administration here. Chief Justice Roberts and Justices Ginsberg, Breyer, Kagan, Sotomayor and Gorsuch all agreed federal law should be interpreted this way in Bostock.