Redefining ‘Sex’ Threatens Title IX

In 1972, Congress passed Title IX to address sex discrimination and barriers that many women faced in education. One of the greatest effects of this legislation was the subsequent expansion of women’s sports, which has given women numerous opportunities to compete, build confidence, and advance their education and career goals.

But as soon as the Biden administration’s term started, it began a campaign to roll back protections for women and girls in federal law.

On his very first day in office, President Joe Biden issued an executive order redefining “sex” and “sex discrimination” in federal law by expanding those terms to encompass “gender identity.” In other words, the Biden administration is trying to twist legislation intended to help women and girls by redefining what it means to be a woman or a girl—in complete contradiction to biological reality.

In July 2022, the Biden administration announced its intent to apply this new, incorrect definition of “sex” to Title IX through a proposed rule change. And despite formal comments submitted by Alliance Defending Freedom and many others about the consequences of such changes, the administration formally adopted them in April 2024.

When biological differences between men and women are ignored, it is women who suffer the most. If Title IX is to continue offering opportunities and protections for women and girls, it must continue to reflect the intrinsic differences between the sexes.

What is Title IX?

Title IX was passed as part of the Education Amendments of 1972. It was signed into law by President Richard Nixon on June 23, 1972.

Title IX was intended to eliminate obstacles many women faced in education, especially in higher education. The main provision of 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.”

In practice, Title IX banned most sex discrimination in college admissions, required colleges and universities to prohibit sexual harassment on campus, allowed women greater access to financial assistance, and paved the way for the later expansion of women’s sports.

What is the history of Title IX?

Title IX was seen as a follow-up bill to the Civil Rights Act of 1964. Among other provisions, the Civil Rights Act prohibited discrimination on the basis of race, color, religion, sex, or national origin in the areas of employment and public accommodation.

But the Civil Rights Act did not address sex discrimination in federally funded programs.

President Lyndon Johnson later signed executive orders to try to address these issues, but the federal government did not strictly enforce them in education. So by 1970, legislators began devising solutions around the same time the Equal Rights Amendment was being debated in Congress.

In the early 1970s, Hawaii Rep. Patsy Mink, with contributions from Oregon Rep. Edith Green and Indiana Sen. Birch Bayh, authored and sponsored a bill to ban sex discrimination in federally funded education programs.

After negotiations, exemptions were made for private institutions and single-sex (all-male or all-female) education institutions.

This bill later became Title IX of the Education Amendments of 1972. Since then, numerous pieces of legislation have sought to limit the scope of Title IX’s applicability, while court cases and “dear colleague” letters from the executive branch have sought to expand Title IX’s scope.

While some of the specifics of Title IX have been debated, one thing about it is clear: it has helped increase educational opportunities for women and girls. As an example, the percentage of women between the ages of 25 and 34 who have at least a college degree has more than tripled since 1968.

What has been Title IX’s effect on women’s sports?

One of the greatest effects of Title IX has been on women’s sports.

Before Title IX was passed, male athletes vastly outnumbered their female counterparts. According to the Women’s Sports Foundation, in 1972, boys outnumbered girls 3.66 million to 300,000 (more than a 12:1 ratio) in high school sports. Fifty years later, that ratio had shrunk to about 4:3 (4.5 million boys to 3.4 million girls).

Similar changes can be seen in collegiate athletics. In 1972, male athletes outnumbered female athletes 170,000 to 30,000 (almost a 6:1 ratio). In 2022, that gap shrunk to just under 4:3 (275,000 men to 215,000 women).

The meaning of ‘sex’ in Title IX

For decades, Title IX has been hailed for banning “sex discrimination” in education. Ironically, though, the plain meaning of the word “sex” is now being called into question. Many, including the Biden administration, are wrongly advocating that “sex” also includes “gender identity.”

In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that an employer who fires an individual for identifying as gay or transgender discriminates based on “sex” in violation of Title VII of the Civil Rights Act of 1964. That was a new expansion of what Title VII meant and covered. But since then, the Biden administration has incorrectly sought to expand the Court’s ruling beyond employment discrimination and apply it to Title IX, which covers educational programs like sports, showers, and locker rooms.

But it is clear from the text of Title IX (as it is in the text of the Civil Rights Act of 1964) that sex meant biological sex, male and female, and that the government can sometimes take a person’s sex into account to ensure equal opportunities. For example, Title IX allows schools in some cases to change “from being an institution which admits only students of one sex to being an institution which admits students of both sexes.”

Not only do provisions like this speak of “the” other sex or “both sexes,” rather than “another” sex or “all sexes,” but they also use terms like “father-son” and “mother-daughter” which are rooted in biology. Title IX says nothing about gender identity.

Unfortunately, the Biden administration’s attempted redefinition of “sex” in Title IX turns back the clock on women’s opportunities, erodes student privacy, and threatens women’s sports. The changes are set to go into effect on Aug. 1, 2024, but Alliance Defending Freedom has worked to file a series of lawsuits challenging them.

ADF strongly opposes any effort to redefine sex in federal regulations inconsistent with the text of Title IX itself for several reasons:

1. It lacks legal authority

Redefining “sex discrimination” is not authorized by Title IX’s text or Supreme Court precedent. Title IX deals with sex, not gender identity.

Likewise, the Bostock decision mentioned above does not require reinterpreting “sex” under Title IX. The Court there held that firing someone merely for identifying as gay or transgender violates Title VII. But that decision does not equate sex and gender identity and does not make it illegal for officials to consider sex when necessary to provide equal opportunities, like when officials provide sex-designated showers, locker rooms, restrooms, and sports to protect people’s privacy, safety, and fairness.

In fact, the Supreme Court in the Bostock decision explicitly rejected any application outside of the context of hiring and firing employees under Title VII when it said,

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.

2. It jeopardizes the privacy of women and girls

The Biden administration’s Title IX rule changes allow males who identify as female to enter women’s and girls’ private spaces like restrooms, locker rooms, showers, and overnight accommodations during school trips. This puts the privacy and safety of women in jeopardy—and the issue is not just hypothetical.

ADF is representing Adaleia Cross, a female athlete who was sexually harassed by a male student she was forced to share a locker room with and compete against. Adaleia is challenging the Biden administration’s rule changes alongside six states, including Tennessee and West Virginia.

In Oklahoma, 13-year-old Katie Rowland had to suffer the embarrassment and indignity of encountering males who identified as female in the girls’ restroom at her school. Katie was so uncomfortable that she stopped using the restroom at school altogether.

Oklahoma later passed a law ensuring that only females were allowed into girls’ bathrooms, and Katie was able to resume using the school restrooms. But the new Title IX rules would override Oklahoma’s law, forcing schools to allow males who identify as female into girls’ restrooms and placing girls like Katie in uncomfortable and even dangerous situations.

ADF attorneys are representing Katie in a lawsuit alongside four states and private organizations to stand against the Biden administration’s attempt to redefine “sex” in Title IX.

3. It hurts female athletes

Redefining “sex discrimination” undermines fairness in women’s sports and diminishes women’s privacy and safety. ADF has represented multiple female athletes like Selina Soule and Chelsea Mitchell who have lost to male athletes in women’s sporting events.

In West Virginia, former collegiate athlete Lainey Armistead has intervened to defend a state law designed to ensure equal opportunities for women and girls in sports by making sure they are not forced to compete against males.

The Biden administration claims its rule changes do not apply to sports, but it has argued in B.P.J. v. West Virginia State Board of Education that men who identify as women should be able to compete in women’s sports under Title IX.

After a district court upheld West Virginia’s law as constitutional, an appellate court temporarily stopped the state from enforcing its law against a male athlete who identifies as female. The ruling has allowed that male student to displace nearly 300 female athletes in track and field events, which has prevented some girls from competing in conference championship meets. West Virginia Attorney General Patrick Morrisey announced in April 2024 that his office, alongside ADF, will ask the Supreme Court to hear the case.

Ignoring the real biological differences between males and females harms women and girls, who lose the ability to compete fairly; are exposed to unsafe competition; and miss out on athletic opportunities, public recognition, and scholarship opportunities.

4. It violates freedoms of speech and religion

Redefining “sex” to include “gender identity” threatens to censor and compel speech, trample religious exercise, and imperil the educational mission of schools nationwide. 

The new rules change the definition of sex-based harassment to include “gender identity.” In addition, they lower the standard for “harassment” to encompass anything that is considered “severe or pervasive.”

The rules state that students bringing a harassment claim no longer need to “demonstrate any particular harm.” Instead, harassment can include anything students deem “unwelcome” or that “limits” their ability to benefit from an educational program.

ADF has defended multiple individuals who were punished simply for expressing (or choosing not to express) beliefs about sex and gender. But under the Biden administration’s new Title IX rules, schools must dole out more punishments to those unwilling to speak in favor of gender ideology.

• When he was in seventh grade, Liam Morrison was removed from class for wearing a T-shirt that said, “There are only two genders.” School officials told him he must remove the shirt, and when he declined, he was sent home for the day. Officials later prevented Liam from wearing a shirt with the message, “There are censored genders,” and ADF is now defending his right to free speech at a federal appellate court.
  
  In the preamble to the new Title IX rules, the Biden administration justified its new standard by citing with approval Liam’s case where the court upheld the school’s decision to punish Liam for his shirt. As this citation indicates, the administration’s new definition of harassment allows schools to punish speech like Liam’s and even exposes schools to liability for not punishing such speech.

• Likewise, when “sex” is redefined to include “gender identity,” a speaker who declines to use pronouns inconsistent with a person’s sex could be charged with similar offenses.
  
  In 2021, ADF successfully defended Nicholas Meriwether in the U.S. Court of Appeals for the 6th Circuit after his employer, Shawnee State University, punished him for “discrimination” for declining to refer to a male student as a woman.
  
  As a Christian, Dr. Meriwether knew it would be harmful to lie to students by using pronouns that did not match their biological sex. But under the new rules, Dr. Meriwether and other professors and teachers would be forced to lie in this way or face government punishment.

Conclusion

We are all equal, but we aren’t all the same. Title IX was premised upon the reality that men and women are different and that these differences matter.

When biology is ignored, and words like “sex” lose their meaning, it is women and girls who bear the brunt of that mistake.

Title IX should continue to remain a law that serves to protect opportunities and safety for women and girls.