Clash Looming Between Biden, State Legislators Over Gender Rights

State legislators rushing to pass laws restricting biological males from competing against women in school athletics are likely to find another foe in the ring when the inevitable court challenges arise — President Biden’s Department of Education. The department, headed by Secretary Cardona, is widely expected to propose new rules in April that would expand federal civil rights regulations enforced under what is known as Title IX to include transgender and gay students along with women.A multi-page fact sheet issued by the White House on Thursday to mark Transgender Day of Visibility was unambiguous: The Department of Education “has affirmed that federal civil rights laws protect all students, including transgender and other LGBTQI+ students, from discrimination” and it “interprets Title IX’s statutory prohibition on sex discrimination as encompassing discrimination based on sexual orientation and gender identity.”The change in policy from the department — which is actually a return to Obama-era guidance that was reversed during the Trump administration — likely will require any K-12 or secondary educational institution that receives federal funding to expand its definition of discrimination based on sex to include “discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”The proposal, first reported by the Washington Post, is expected to come in the form of amendments to how the department enforces Title IX, the 1972 civil rights legislation that has been a lightning rod for debates about sexual discrimination and abuse on college campuses since its inception 50 years ago this summer. The practical effect of the change in rules, according to a Title IX administrator, Jake Sapp, will be to put college officials in an even more difficult position than they already find themselves.“If they don’t follow the rules of the Department of Education, they get fined. If they don’t follow established case law, they get sued. Now, state legislators are in the mix,” Mr. Sapp, the chief compliance officer and deputy Title IX administrator for Austin College in Sherman, Texas, says.Lawmakers in a dozen states have passed some sort of ban on transgender students competing against members of the opposite sex — some of them overriding vetoes by Republican governors to do so. Many of the laws have already been challenged in court.The challengers were emboldened last year when the U.S. Supreme Court ruled in a 6-3 decision that gay and transgender people are entitled to protection from employment discrimination under the 1964 federal Civil Rights Act, known as Title VII, which prohibits discrimination because of race, sex, religion, or national origin.The debate over transgender rights and the courts at least partially explains why senators questioning the Supreme Court nominee, Ketanji Brown Jackson, during her confirmation hearings last week pressured her for a definition of the word “woman.” Ms. Jackson replied that she could not define the word, because, she said, she is “not a biologist.” While many school administrators around the country, and some courts, have interpreted the Supreme Court’s ruling in the so-called Bostock case to imply that it extends to Title IX — even though it explicitly only applied to employment law — the education department has yet to weigh in with a formal regulation stating as much.These new rules, many believe, will do just that. They will likely not take effect for at least another year, however, as regulators are required to at first propose the rule changes and accept public comment on them before they are formalized.Conservative groups have used Title IX as a means to push back against transgender participation in collegiate sports, a tactic that may be more complicated when the education department changes the current rules.Concerned Women for America, for example, filed a formal Title IX civil rights complaint in mid-March after Lia Thomas, a University of Pennsylvania student who identifies as female but has male sexual organs, was allowed to compete against women in a swimming tournament, besting her opponents and shattering several records.“The future of women’s sports is at risk and the equal rights of female athletes are being infringed,” the group’s CEO and president, Penny Nance, said. “Any school that defies federal civil rights law by denying women equal opportunities in athletic programs, forcing women to compete against athletes who are biologically male, must be held accountable.”Regardless of exactly where they come down, Mr. Sapp believes the new rules from the education department are going to be a boon one for group: the legions of lawyers and administrators specializing in Title IX law, along with the boutique training industry that has grown up around it over the past five decades.“There’s a lot of conflict pent up in the system that is going to be flushed out by these new rules,” Mr. Sapp says. “The lawyers are going to get rich, as always.”

Clash Looming Between Biden, State Legislators Over Gender Rights

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