Sarah Parshall Perry of The Heritage Foundation says the Department has turned a 52-year-old longstanding federal civil rights law that simply prohibits sex discrimination in any federally funded education program, and they have expanded that definition of "sex" to include sexual orientation, gender identity, and pregnancy or related condition.
"The reason that that is so problematic is because the Title IX paradigm sets up specifically separation by biological sex to make sure that the women and girls for whom the law was passed had equal educational opportunity," she explains.
Under the Biden administration's new definition, those provisions are no longer enforceable.
"What we're going to see is essentially locker rooms, bathrooms, housing accommodations, dorms, sports teams, and scholarship opportunities – all for women – now being opened up to males who identity as woman for purposes of Title IX," says Perry.
The final regulations are effective on August 1, meaning this will be in place for the 2024-2025 school year. Any school that takes so much as $1 of direct or indirect federal funding will be expected to comply.
Meanwhile, a number of litigation study groups have been meeting behind the scenes to develop legal strategies because, as Perry points out "there are so many angles of this law that make it unconstitutional, a violation of administrative law, [and] a violation of civil rights law," which means there are a multitude of ways to challenge it legally.
"I would not be surprised if we see a coalition of red states ban together with their attorneys general all moving forward against the rule to make sure that their states do not have to follow along with what is very clearly a craven political attempt to cater to a progressive base," the attorney adds.
The Independent Women's Law Center is among those preparing to file a lawsuit.
One main area of confusion in this involves sports. Reportedly, the administration "originally planned to include a new policy forbidding schools from enacting outright bans on transgender athletes, but that provision was put on hold."
However, according to a press release from the Department of Education, "The final regulations require schools to take prompt and effective action when notified of conduct that reasonably may constitute sex discrimination in their educational programs or activities."
When AFN reached out to ask the Department whether states barring males from female sports will have to comply, it was told that the "rulemaking process is still ongoing for a Title IX regulation related to athletics."
"The Department proposed amendments to its athletics regulations in April 2023 and received over 150,000 public comments, which by law must be carefully considered," a spokesperson relayed. "We do not have information to share today on a timeline."
Perry does not buy that.
"I was on a stakeholder call with the Assistant Secretary for Civil Rights at the Department of Education, and she was asked a direct question about whether or not athletics regulation is in the process for continuing development," says Perry. "She did not answer the question; she simply reiterated that they were excited to release the current rule today."
The reason Perry thinks athletics will be impacted is because the word "athletics" appears no fewer than 31 times in this regulation.
"There is also language about extracurricular activities," she adds. "Based on the language about prohibiting gender identity discrimination, they have essentially engaged in what we like to call a head fake on this, where they have told us that sports are not included, but for all purposes, and for all schools across the country, sports are certainly included."
