Reports on the radical new Title IX rules that the Biden administration issued today might leave readers thinking that the Biden administration isn’t pushing to require that boys and men who say they identify as female be allowed to compete on girls’ and women’s teams. The New York Times, for example, states that “the administration steered clear of the lightning-rod issue of whether transgender students should be able to play on school sports teams corresponding to their gender identity.”
Don’t be snookered!
While today’s rules evidently don’t explicitly* address that topic, the Biden administration is aggressively pushing federal courts to adopt its position that both the Equal Protection Clause and Title IX bar schools from limiting girls’ and women’s sports to girls and women. Here, for example, is the amicus brief that the Biden administration filed in B.P.J. v. West Virginia State Board of Education—the case in which the Fourth Circuit three days ago issued a bonkers ruling against a West Virginia law (H.B. 3293). Below are two key excerpts from the brief’s summary of argument. (Keep in mind that the brief uses “transgender girls” to refer to boys who identify as female.)
- “H.B. 3293 fails intermediate scrutiny [under the Equal Protection Clause] because defendants have not shown that its categorical restriction on transgender girls’ participation on girls’ athletic teams is substantially related to the State’s asserted interests in ensuring safety and equal athletic opportunity for women and girls in West Virginia.”
- “Furthermore, H.B. 3293 violates Title IX because it constitutes a categorical ban on transgender girls’ participation on certain athletic teams, which is inconsistent with Title IX’s overarching goal of ensuring equal opportunity. Title IX prohibits discrimination on the basis of sex in education programs or activities that receive federal financial assistance. By prohibiting transgender girls from participating on girls’ sports teams because their sex assigned at birth was male, and thus causing them harm, H.B. 3293 discriminates on the basis of sex.”
To repeat point 3 of my post on the Fourth Circuit ruling: If Title IX requires that boys and men who identify as female be allowed to join girls’ and women’s sports teams, then it must also require that boys and men who identify as male be allowed to join those same teams. To treat males who identify as female differently from males who identify as male would be to engage in the very discrimination on the basis of gender identity that the Biden administration insists that Title IX doesn’t allow.
In short, the Biden administration isn’t backing away from its “lighting-rod” position that would destroy girls’ and women’s sports. It’s just trying to obscure its deeply unpopular, and legally unsound, position from the American public, and it’s hoping that wayward judges will do its ugly work for it.
* Folks who have read the new rules tell me that the logic (or illogic) of the new rules has clear implications for sports. That’s not surprising: How could the government redefine “sex” in Title IX without affecting women’s sports?