Biological facts do not change

The Biden administration recently proposed a new rule under Title IX regulations. The rule would prohibit schools from categorically banning transgender athletes from playing on teams of the gender with which they identify. Title IX, originally adopted in 1972, sought to ensure that women had equal access to educational activities, especially sports teams. At that time, there was no question that women had far fewer sports opportunities than men did. Civil rights legislation in the 1970s typically used the term “sex” instead of “gender,” on the then-common assumption that there were two biological “sexes”—male and female.

Like many federal regulations, Title IX has expanded far beyond its original purpose. In 2011, the Obama administration used Title IX to demand that colleges set up investigative bureaucracies to monitor and punish instances of sexual harassment, discrimination, and/or violence on campus.

Some Title IX allegations, such as rape, would once have been the sole responsibility of law enforcement officials to investigate. But Title IX advocates assumed that police departments were not equipped or inclined to scrutinize the array of episodes that one might regard as Title IX violations. These included incidents from alcohol-fueled sexual liaisons between students, to any personnel dispute in which a woman or transgender person was involved.

Over the past decade, most elite schools have created vast departments to coordinate Title IX investigations and programming. Even small schools that accept any form of federal funding (such as scholarships or student loans) must comply with Title IX regulations.

Meanwhile, the binary term “sex” has fallen out of favor, replaced by the more expansive category of “gender.” Gender, advocates argue, is a malleable construct dependent not on biology but on individual expression. Ensuring equal access for persons of any gender identity is a current top priority for the Department of Education.

The new rule challenges recent laws, passed by almost half the states, that protect women’s teams from having to place biological men on their rosters. Ironically, many see today’s Title IX as posing an existential threat to women’s sports, which it was originally designed to protect.

In rare cases, persons born as girls do identify as male and then seek to play on a boys’ team. But high-profile instances of collegiate transgender controversies typically involve people born as boys desiring to play women’s sports. Most controversially, the swimmer William Thomas competed for the University of Pennsylvania men’s team until 2020, then transitioned to a female identity. Lia Thomas joined the Penn women’s swim team, winning the 500-yard freestyle women’s championship in 2022.

Activists for the LGBTQ+ agenda and similar causes typically employ court challenges and federal regulations when they cannot make satisfactory progress through legislation. Title IX rules are a particularly powerful strategy. The only obvious way for schools to get around Title IX mandates is for a college to refuse to take federal assistance of any kind.

The decision to refuse federal money can be daunting. It harms the students denied access to federal tuition assistance. (A small number of conservative and Christian schools have shown that it can be done, however.) Universities with even minimal research aspirations could not achieve those goals without access to federal grants and fellowships.

How far the new rule will get is unclear, however. The rule itself vaguely suggests that there could be valid competitive reasons to keep transgender people off certain teams. The desire to preserve women’s sports for people born biologically female has substantial popular support. Some feminists of a 1970s bent, meaning those who seek equity for women as women, also do not wish to conflate transgenderism with the feminist cause.

LGBTQ+ activists so far have failed to secure a decisive ruling against Christian schools, which have traditionally been granted religious liberty exemptions when historic beliefs conflict with anti-discrimination policy. (Such as when Christian colleges have a policy against hiring people who are in homosexual relationships.) In early 2023, a federal judge in Oregon dismissed a lawsuit trying to terminate such exemptions for religious colleges.

Finally, it seems unlikely that elite college teams or the NCAA would be willing to follow the transgender rule to its ultimate conclusion: making all sports teams open to transgender athletes, not just women’s teams. If the issue is equity for transgender persons, why can’t biological women who identify as male play Division I football? Or men’s basketball? What’s the justification for binary men’s and women’s teams at all?

Behind all of this is the question of money. But the larger issue is the reality of biological sex and the typical characteristics of men and women, such as strength and weight. The physical differences between men and women may be an intolerable topic for the gender revolution, but biology is not going away.