Biden inserts ‘gender identity’ into Title IX, adding biological males to women’s rights law

The Biden administration released Friday its long-awaited overhaul of Title IX, inserting “gender identity” into the watershed civil rights amendment aimed at eliminating discrimination against girls and women in education.

Nearly two years in the making, the Education Department’s final rule “builds on the legacy of Title IX” by extending protections to transgender students, meaning that the 52-year-old law hailed for advancing educational opportunities for women will include for the first time biological males who identify as female.

“The rule prohibits discrimination and harassment based on sexual orientation, gender identity, and sex characteristics in federally funded education programs, applying the reasoning of the Supreme Court’s ruling in Bostock v. Clayton County,” said the DOE fact sheet.

The final rule takes effect Aug. 1. The department stressed that the regulations do not address transgender eligibility in scholastic sports, which will be covered in a separate rule expected to be released after the 2024 presidential election.

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The revisions unveiled Friday specify that schools “must not separate or treat people differently based on sex in a manner that subjects them to more than de minimis harm, except in limited circumstances permitted by Title IX.”

Title IX of the Education Amendments of 1972 states that its ban on sex discrimination does not apply to “maintaining separate living facilities for the different sexes.”

“The final regulations further recognize that preventing someone from participating in school (including in sex-separate activities) consistent with their gender identity causes that person more than de minimis harm,” said the fact sheet.

“Our nation’s educational institutions should be places where we not only accept differences, but celebrate them,” said Education Secretary Miguel Cardona on a press call. “Places that root out hate and promote inclusion, not just because it’s the right thing to do, but because our systems and institutions are richer for it.”

The newly promulgated regulatory framework also reworks the Trump administration’s 2020 Title IX rulemaking, which strengthened due process rights for students accused of sexual harassment by, for example, making it clear that the accused were innocent until proven guilty.

Condemning the final rule was Rep. Virginia Foxx, chairwoman of the House Education and the Workforce Committee, who accused the administration of placing Title IX “squarely on the chopping block.”

“This final rule dumps kerosene on the already raging fire that is Democrats’ contemptuous culture war that aims to radically redefine sex and gender,” she said. “The rule also undermines existing due process rights, placing students and institutions in legal jeopardy and again undermining the protections Title IX is intended to provide.”

The North Carolina Republican added that “[e]vidently, the acceptance of biological reality, and the faithful implementation of the law, are just pills too big for the Department to swallow – and it shows.”

Also blasting the Title IX overhaul was the right-tilting Independent Women’s Forum, which said on X that the administration’s “illegal rewrite of the landmark civil rights law is a massive threat to women & girls, who deserve equal opportunity, safety, & protection in education.”

The rulemaking process that began in June 2022 drew more than 240,000 comments, according to the department.