The Department of Education’s 90-day comment period ended Monday for proposed rule changes for Title IX. What is the Biden administration trying to accomplish? Nothing less than the redefinition of sex—and of pregnancy itself.
The landmark 1972 law known as Title IX ensures that women and girls don’t face discrimination based on sex in school programs, including sports. The original language was simple, but it has grown into a regulatory nightmare.
The Biden administration’s proposed revision of rules carrying out the law—which affects every K-12 school and institution of higher education that receives federal funding—is a whopping 700 pages.
Our Heritage Foundation colleagues have sounded the alarm on how the proposed rule changes would undercut women’s athletics, undermine due process, impose woke sexual orthodoxy, and more.
But what about pregnancy?
To answer this question and hold the Biden administration accountable for the lives and flourishing of preborn babies, The Heritage Foundation examined what the proposed Title IX rule changes say about pregnancy and filed a public comment.
Here’s a summary of what Heritage said:
1. Pregnancy is redefined to include abortion.
The Biden administration wants to redefine pregnancy to include childbirth, lactation, and “termination of pregnancy”—that is, abortion.
The administration’s three-pronged definition of pregnancy makes a notable departure from previous ones. Under Title IX now, women are protected from discrimination if they get an abortion. This means that with a doctor’s note, women receive medical leave from class or a sports team to recover.
Abortion currently is a distinct issue that falls under “sex discrimination,” but under the Biden administration’s change, abortion would be included as an aspect of pregnancy.
It’s a distinction that makes all the difference. The new definition would treat abortion as morally equal to pregnancy, childbearing, and lactation.
This is absurd. Pregnancy is a natural process. A new life begins at the moment of conception. This human being is just that—a human being—at every stage of development.
Lactation is the natural response of a mother’s body to the needs of her baby as she provides milk and essential nutrients for her newborn child.
Abortion, in contrast, is the intentional, direct destruction of preborn human life. It kills the preborn baby and halts the natural process of pregnancy.
In short, the proposed definition erroneously conflates pregnancy and lactation, a natural and lifegiving process, with abortion, an induced procedure intended to kill preborn life.
2. Creation of an abortion neutrality ‘gray zone.’
The Title IX statute includes an “abortion neutrality” provision saying that the policy doesn’t require a person or entity to pay for abortion nor does it prohibit that. Nor can a person be discriminated against for obtaining a legal abortion.
But the abortion landscape changed dramatically June 24, when the Supreme Court corrected a grave error and overturned Roe v. Wade and abortion on demand in the case known as Dobbs v. Jackson Women’s Health Organization.
No longer is abortion recognized as a so-called constitutional right. Abortion policy has returned to the American people and their elected representatives.
While the high court’s 1973 ruling in Roe v. Wade was in effect, top-down national guidelines dictated state abortion law. This made interpretation of Title IX’s regulations easier to apply. Now, states have enacted—or are in the process of enacting—new policies that protect women and unborn children from abortion.
By neither “requiring nor prohibiting” abortion access in schools, the language of the Title IX rule change would create a “gray zone.” This gray zone would mean that schools may “opt in” to use Title IX as a vehicle for abortion education, referrals, or access. This could take the form of connecting students with abortion clinics, not disclosing a pregnancy or abortion to a minor’s parents, paying for abortion travel, or promoting dangerous abortion pills.
What if a K-12 school or college receives Title IX funding but is located in a state that protects mothers and preborn babies? The Department of Education doesn’t provide any insight into how the conflict between federal regulation and state law would be resolved.
This isn’t a theoretical question. Abortion on demand is one of the Biden administration’s top priorities, regardless of state law. For example, the Department of Veterans Affairs just released an interim final rule regarding provision of abortion services at VA facilities. This rule contradicts both pro-life state protections and federal law.
Title IX’s normalization—and apparent promotion—of abortion under the proposed rule, paired with the Dobbs decision, could give schools greater incentives to “opt in” to promote abortion. If the Biden administration is trying to use the VA to promote its pro-abortion agenda, the Department of Education likewise could use Title IX to subvert state law.
3. Title IX should focus on its original goal: protecting women and girls.
Implementing Title IX should focus on providing women with a full understanding of their rights under the law. This includes flexibility and accommodations for pregnancy and motherhood, lactation rooms, and access to pregnancy care centers to help address needs.
If Title IX and abortion access are viewed as necessary parts in the fight against sex discrimination, women and girls would receive the dangerous message that they “need” abortion to succeed.
This is an erroneous view of sex discrimination. Instead, it was precisely because of a person’s biological sex that Title IX protected girls and women from athletic or academic discrimination. This way, women and men may fully embrace the demands of motherhood or fatherhood.
For 50 years, Title IX has understood, respected, and protected the differences between men and women. It did not, as in this proposed rule change, try to erase altogether the distinction between male and female or pregnancy and abortion.
Let’s be clear. Title IX doesn’t provide the Biden administration with the power or scope to rewrite the abortion policies of the states. Nor does Congress’ original intent in passing Title IX in 1972 suggest that it meant the law to be an avenue to promote abortion.
Likewise, Title IX does not give the administration the power or scope to completely alleviate women of responsibility for the consequences of their sex. This is a fundamental biological reality: Sexual intercourse can result in pregnancy.
Although Title IX protects women from discrimination if they receive an abortion, it does not encourage or stipulate a right to an abortion as a means of removing undue “barriers.” That was true in 1972, and it remains true half a century later.
It should take Biden administration officials many months to review and respond to the thousands of public comments criticizing its Title IX rule revisions.
Will the administration walk back its effort to undermine Title IX? Or will it barrel ahead in this effort to erase the very women and girls that the law was designed to protect? We’ll know in time.
This piece originally appeared in The Daily Signal