Last month, the Biden Administration’s Department of Education issued a proposed rule that would rewrite Title IX to allow males to compete on female sports teams. If finalized, this rule would put at risk the opportunities and safety of women and girls nationwide.
That’s why Michael, our Senior Policy Advisor, filed a public comment expressing numerous concerns and highlighting the shortcomings of the Biden Administration’s proposed rule.
Here is the public comment (ED-2022-OCR-0143-150726) in full:
I am writing to address concerns that my family and I have regarding the newly proposed rule, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams” (RIN 1870-AA19; Docket ID ED-2022-OCR-0143; “Proposed Rule”). This Proposed Rule undercuts states that are protecting female athletes from ongoing discrimination and leaves women without protection when male students are allowed to join their teams. In fact, Kentucky and the majority of states have introduced legislation to protect female athletes, and so far twenty of them have passed those protections into law. This is not a minority viewpoint: it’s common sense.
The Proposed Rule is based upon a distorted interpretation of science and language, while also relying upon flawed presumptions and false claims. The consequences are devastating.
Despite the Department of Education’s repeated use of the term in its April 6, 2023 press release, there is no such thing as “transgender students” as a separate and distinct group outside of male and female. Rather, there are male and female students whose sense of self may not align with that biological reality. Treating these individuals as subhuman or as second-class citizens by excluding them from humanity’s two categories and isolating them into an invented third category for unequal treatment is abhorrent – each of them deserves to be treated with equal worth and dignity. They should be accepted for who they truly are, as revealed by science (biology), regardless of whether they conform to societal norms regarding traits and actions associated with their sex.
The Department of Education’s claim that the proposed rule is building upon Title IX’s successful gains for women in equal athletic opportunities is laughable. Despite claims that the rule affirms the permissibility of separate men’s and boys’ and women’s and girls’ sports teams, the proposed rule allows such separate teams to be abolished by a single individual’s concept of self, even if it is at odds with reality.
Women deserve a fair shot in sports, but when males are allowed to compete in female sports contests, that fair shot disappears. Males have an undeniable biological advantage over female athletes no matter the amount of testosterone suppression is taken–but the administration will allow males to compete with females anyway if this rule is finalized. When this happens, girls and women lose out on championships, scholarships, and other opportunities meant just for them.
The Proposed Rule establishes a standard of review for state and school criteria on a student’s eligibility to participate on a male or female team that seems to mirror the strict scrutiny, the strictest and most difficult level of legal review to overcome, which is normally reserved for the protection of rights recognized by the U.S. Supreme Court as fundamental and requiring a high degree of protection from government encroachment.
The Proposed Rule states that if schools apply “a one-size-fits-all approach, they rely on overbroad generalizations that do not account for the nature of particular sports, the level of competition at issue, and the grade or education level of students to which they apply.” Those schools using that a standard across the board would thus not be in compliance with the rule as proposed. This leaves the door open to dramatically confuse schools and states on what qualifies as legitimate reasons, such as physical harm, to keep women’s sports for biological women only.
In addition to the flawed presumptions, false claims, and consequences mentioned above, there are also several other concerns that arise. The proposed rule (1) lacks legal authority; (2) hurts female athletes and jeopardizes women’s privacy; (3) undermines parental rights; (4) harms women and unborn children and disregards medical ethics; and (5) violates freedoms of speech and religion.
The Family Foundation calls on the Biden Administration to not put ideology and politics over girls and women. Please rescind this rule and make it clear for schools that women’s sports is for biological women only, as Title IX originally intended.
Thank you for your consideration and forthcoming response.