Washington, D.C. Newsroom, Apr 26, 2024 / 12:30 pm

The addition of “gender identity” in the Biden administration’s interpretation of anti-discrimination rules could jeopardize state laws that restrict women’s sports and women’s locker rooms to only women, according to legal scholars.

Late last week, President Joe Biden’s Department of Education redefined the prohibition on sex discrimination in education, enshrined in the 1972 Title IX provisions, to include discrimination based on a person’s “gender identity.”

The new guidelines prohibit any policy and practice that “prevents a person from participating in an education program or activity consistent with their gender identity.”

Although the new guidelines do not clearly explain how the mandate would be enforced, experts at the legal advocacy group Alliance Defending Freedom (ADF) and the conservative Heritage Foundation told CNA that it could force educational institutions to allow men who identify as women to access sports competitions, women’s locker rooms, bathrooms, and dormitories that are exclusive to women.

Other concerns they noted included free speech protections for those who use pronouns that align with a person’s biological sex when it conflicts with the person’s self-proclaimed gender identity and the effect this change could have on other federal agencies, who base their sex discrimination policies on Title IX.

The guidelines apply to public and private educational institutions that accept federal money, which imposes the new rule on K-12 schools, colleges, trade schools, and other institutions. They apply regardless of whether state laws restrict these competitions and spaces to only women. The law does contain an exemption for religious schools that claim certain provisions of the new rule violate their beliefs.

“This is a … radical redefinition of sex,” Matt Sharp, who serves as senior counsel and director of Center for Public Policy at ADF, told CNA.

“Rather than sex being based on biology, now your ‘gender identity’ comes into play [in these anti-discrimination provisions],” Sharp said.

Sarah Parshall Perry, who serves as a senior legal fellow at the Heritage Foundation, told CNA that the change will have a “catastrophic impact” on women.

All anti-discrimination provisions that apply to a person’s sex, she noted, will now apply to a person based on his or her self-described “gender identity.”

“All of these [anti-discrimination rules] are lumped under the exact same heading of sex,” Perry, who previously served as senior counsel at the Department of Education, added.

Tension growing between states and federal government

Less than a week into the promulgation of the new guidelines, the reinterpretation is already causing tension with states that have passed laws to protect women’s sports and prevent males from entering women’s locker rooms and bathrooms. Public officials in Florida and Oklahoma have warned the administration that they will not comply with the mandate.

“Florida rejects Joe Biden’s attempt to rewrite Title IX,” Florida Gov. Ron DeSantis said in a video message posted on X on Thursday.

“We will not comply and we will fight back,” he said. “We are not going to let Joe Biden try to inject men into women’s activities. We are not going to let Joe Biden undermine the rights of parents and we are not going to let Joe Biden abuse his constitutional authority to try to impose these policies on us here in Florida.”

Oklahoma State Superintendent Ryan Walters called the change an attack on states, families, and women. He instructed school districts to not comply with the administration’s definition.

“Biden’s rewrite of Title IX is one of the most illegal and radical moves we have ever seen from the federal government,” Walters said. “Oklahoma will not sit idly by while radicals trample on the Constitution and take away women’s rights. We are taking swift and aggressive action against Biden in his war on women.”

Currently, West Virginia is facing a legal challenge against its law that prohibits biological males from engaging in women’s and girls’ athletic competitions. The lawsuit accuses the state of discriminating against males who self-identify as women. It bases its argument on Title IX’s prohibition on sex discrimination — a claim used in the lawsuit before the federal government officially changed its interpretation.

An appellate court ruled against West Virginia, but the state’s lawyers at Alliance Defending Freedom are appealing to the U.S. Supreme Court.

Sharp said the administration’s redefinition of sex discrimination does not change the legal argument used to defend these state laws.

He told CNA that the administration’s change is “unlawful” and that these interpretations “violate the plain meaning of Title IX,” which is “built upon an understanding that there are … only two sexes.”

“The legal approach is exactly how it’s always been,” Sharp said.

Penny said the administration’s redefinition of sex goes against the “entire purpose and history and mission” of the ratifiers of Title IX, which she said “was a significant movement for the women’s liberation movement.”

Now those who defend the traditional understanding of the law, she noted, are seen as “being conservatives or libertarians.”

“Sex has always meant [the] biological distinctions between men and women,” Penny said.