Rather than uphold the hard-won protections for women under the almost-half-century-old Title IX of the Education Amendments of 1972, the Biden administration continues to steamroll women’s equality and opportunity.
Citing the Bostock v. Clayton County Supreme Court ruling, the Department of Education released a notice yesterday announcing it would interpret Title IX protections against discrimination on the basis of sex to include sexual orientation and gender identity. Such radical reinterpretation is a step back from “equality for all.”
Sadly, the Biden administration’s move is not a surprise.
President Joe Biden launched what has become a full-scale effort to dismantle women’s equality. On his first day in office, Biden signed a divisive executive order that expands discrimination on the basis of sex to include sexual orientation and gender identity. A few weeks later, he nominated Miguel Cardona for education secretary. Cardona refused to acknowledge the differences in biological sex for sports during his confirmation hearing.
Biden then appointed Rachel Levine for assistant secretary of the Department for Health and Human Services. Levine refused to acknowledge the mutilation of children under the guise of “gender-affirming care.”
Just over one month ago, the Department of Health and Human Services issued a notice reinterpreting Section 1557 of the Affordable Care Act’s prohibition of discrimination on the basis of sex to include sexual orientation and gender identity. The notice cited Bostock v. Clayton County to justify its reinterpretation.
The administration’s actions undermine equality for women achieved by Title IX and the meaning and scope of Bostock v. Clayton County.
Today, Americans celebrate Title IX’s 49th anniversary. Title IX created equality and opportunity for women in educational institutions that receive federal funding by requiring equal treatment of the sexes. This applied to all education programs and activities, including athletics.
Because of Title IX, women’s athletics programs were required to have equal resources for facilities, training, recruitment, and scholarships. As a result, women’s participation in sports exploded. Since 1972, the number of high school female athletes has grown from 295,000 to 2.6 million, and the number of female college athletes has quintupled. Title IX is also credited to have decreased dropout rates and increased the number of women who pursued higher education.
Reinterpreting Title IX’s prohibition of discrimination on the basis of sex to include gender identity will result in the loss of the hard-won equality, safety, and opportunity for girls and women in school athletics. A recent British Journal of Medicine study shows that trans-identifying biological males retain competitive advantage over females even after two years of taking estrogen.
Don’t believe it? Currently, nearly 300 US high school boys can beat Allyson Felix in the 400-meter sprint. Felix is the most decorated athlete in World Athletics Championships history and six-time Olympic gold medalist.
Trans-identifying biological males dominate girls’ sports and take away opportunities created for hardworking female athletes. In Maui, Hawaii, Margaret Oneal Monteleone, a sophomore at St. Anthony School, raced against a transgender athlete who effortlessly beat the female competitors. Had she only competed against girls, Monteleone would have won. Losing out on first place can mean losing out on athletic scholarships.
The Education Department’s reinterpretation of Title IX not only undermines women’s equality in sports, but it also misapplies and misunderstands the Bostock v. Clayton County ruling.
In Bostock v. Clayton County, the Supreme Court’s ruling proceeded “on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.” The ruling dealt with discrimination on the basis of sex in matters of employment according to Title VII of the Civil Rights Act. It did not redefine sex to include gender identity and sexual orientation. It also did not apply its ruling to any other part of the Civil Rights Act beyond Title VII.
This is as it should be. Jobs may be performed equally well by qualified individuals regardless of sex. Unlike matters of employment, however, sexual differences are extremely relevant when it comes to health care and athletics. Amendments like Title IX were passed because biological differences matter when it comes to fairness and opportunities in sports. The Bostock v. Clayton County ruling acknowledges this legal distinction. The Supreme Court explicitly stated that Bostock v. Clayton County cannot be used to apply to matters beyond employment nondiscrimination under Title VII.
Despite its lip-service to equality, the Biden administration’s actions speak louder than words. As Americans celebrate Title IX’s anniversary, they must not rest on the accomplishments of the past. There is need for renewed efforts in the fight for women’s equality. Freedom is never more than a generation away from extinction—and women’s freedoms are no exception.
This piece originally appeared in The Daily Signal.