Biden’s Title IX Gambit Is Falling Apart

T he Biden administration’s attempt to rewrite Title IX is landing hard on the rocks of reality. In the last several days, its Title IX rule — which allows males into female spaces — has been blocked by two federal courts, with more defeats likely imminent. This is good news for the millions of girls who stand to lose their privacy and opportunity if the administration gets its way.

June 23 marked 52 years since Title IX was enshrined as a landmark civil-rights law. By any measure, Title IX has vastly improved the lives of women and girls. It requires equal access to educational opportunities, athletic activities, and private restrooms and locker rooms in nearly all schools that take federal dollars. It’s become a pillar of American life — as solid as the Civil Rights Act or the Americans with Disabilities Act.

That is, until the administration decided to hijack it. In April, the Biden Department of Education issued its final rule redefining “sex” in Title IX to include “gender identity.” As a result, starting August 1, all schools covered by Title IX will be forced to let boys into girls’ spaces so long as they identify as girls.

Legally, this change is groundless. The term “gender identity” was scarcely used, much less understood, in 1972 when Title IX was enacted. And even today, gender identity is defined in distinction from sex, not in concert with it.

Definitions aside, the administration has tried to shore up its faulty rule by citing the Supreme Court’s 2020 decision in Bostock v. Clayton County. But that doesn’t work. Bostock — which ruled that employers can’t take gender identity into account when hiring and firing employees — was narrowly tailored to employment law under Title VII. It has no bearing on other situations that are very different, such as whether sex should determine access to bathrooms or sports teams in school.

Quite simply, this rule is lawless. But it is also insidious, as it would literally upend the social fabric of our nation’s schools.

The legal backlash has been fierce. A total of 26 states have sued the administration over the rule. My firm, Alliance Defending Freedom, is helping litigate five cases, representing students, teachers, and female athletes across the country. So far, two federal courts have ruled in our favor with preliminary injunctions, halting the rule in ten states. Since these cases span multiple circuits, it’s possible that a split circuit could vault this issue to the U.S. Supreme Court.

Americans need to feel the gravity of what’s at stake here for our daughters. One of ADF’s clients, Adaleia Cross, is a rising tenth-grade track-and-field athlete from West Virginia. After being outperformed by a male student who was allowed to compete in her events, she lost out on the chance to compete in a major championship meet. Making matters worse, she also had to endure vile sexual comments from that same male student in the locker room. Although West Virginia passed a law to protect girls like Adaleia, the Biden Title IX rule would overrule that law. Adaleia fears she will once again be stripped of her right to privacy and fairness under the Biden rule, as other males are allowed into the women’s locker room and sports teams.

But students aren’t the only victims. The Title IX rule also threatens the rights of school employees who dissent from gender ideology. Because it redefines “harassment” to include things like “misgendering,” teachers would be forced to treat boys like girls and vice versa, lying to their students by using false pronouns. Students, too, would have to join in those lies. This is coerced speech and an assault on the First Amendment. ADF is representing a group of 6,000 teachers whose rights would be crushed under this authoritarian dictate.

So far, the judges who have weighed in have thoroughly dismantled the government’s case. In Louisiana, federal judge Terry Doughty wrote that this rule would “subvert the original purpose of Title IX” by letting males into female spaces. He called it the kind of “abuse of power by executive agencies” that poses “a threat to democracy.” In Kentucky, federal judge Danny Reeves concluded that the rule is “arbitrary and capricious” and would “derail deeply rooted law.” As for free speech, it “suppresses one side of the debate, strangling the marketplace of ideas in a way that is ‘uniquely harmful to a free and democratic society.’”

Judicial opinion isn’t the only obstacle facing this rule — the American public is also squarely against it. Since President Biden took office, the share of Americans who say sports teams should be restricted by biological sex has risen from 62 percent to 69 percent. And since 2017, the belief that being male or female is determined by biology, not feelings, has risen among voters from 53 percent to 65 percent.

Americans are rejecting this sham ideology, yet the administration wants to force it into every public school in the nation. It must be stopped. And its final defeat will be cause for rejoicing.