Title IX turns 50

Title IX, which transformed collegiate sports, is turning 50 and headed for a midlife crisis. The Biden administration is intent on reinterpreting the law’s central phrase, which prohibits discrimination “on the basis of sex,” to allow biological males to compete in women’s sports.

Title IX was enacted to guarantee opportunities for women and girls in education generally, but its biggest claim to fame is the growth of women’s sports. When President Richard Nixon signed it into law on June 23, 1972, an estimated 300,000 girls played high school sports. Today, that number is around 3.5 million, amounting to nearly 43 percent of high school athletes.

Transgender policies now threaten Title IX’s sports legacy. A growing roster of males identifying and competing as females has denied women a place in the winners’ circle in competitions across the country. In high school sports, Connecticut girls’ track stars missed out on opportunities to advance and win championship titles when two biological males dominated their events. Women’s collegiate swimming experienced an upset in March when biological male Lia Thomas won the NCAA Division I national championship in the 500-yard freestyle race. A photo of the award platform after the event symbolizes how transgender policy has tilted the playing field in women’s sports. Thomas towers over the top three female competitors, who are huddled together at the opposite end of the stage. Were a few more male athletes to pursue female competition, women would not be on that platform at all. The recent policy announcement by FINA, an important governing body regulating women’s swimming, seeks to preserve competition among biological women. But the Biden administration plan is at odds with that policy.

Since his very first hours in the White House, President Joe Biden has called for policy changes that have caused setbacks to women’s sports. A Jan. 20, 2021, executive order directed all federal agencies to make sure policies prohibiting discrimination on the basis of biological sex could be enforced with respect to gender identity preferences.

The White House has argued for redefining sex beyond biology in light of the U.S. Supreme Court’s 2020 Bostock decision. That case involved Title VII employment law. The majority opinion reinterpreted Title VII’s prohibition on sex discrimination and extended it to cover sexual orientation and gender identity. But the court expressly limited the scope of its decision in Bostock to the Title VII context of hiring and firing employees. Despite that constraint, the Biden administration has from day one stretched the reasoning in Bostock to cover contexts throughout areas under the oversight of the federal government, including education and sports.

On March 8, 2021, President Biden issued another executive order calling on the secretary of education to ensure compliance with the administration’s gender identity policy. The order specifically highlighted Title IX policy.

In March of this year, The Washington Post reported that an announcement of proposed new Title IX regulations was anticipated within a few weeks and quoted from draft language. According to that draft, the statute’s text “on the basis of sex” would now be interpreted to mean on the basis of gender identity as well. The U.S. Department of Education has since delayed releasing a proposed new Title IX rule, but many expect the announcement later this month.

The Biden policy upsets the level playing field Title IX sought to create in the first place. In response, states are taking action to protect women’s sports. Earlier this month, Louisiana became the 18th state to enact a law that would keep biological sex as the basis for interscholastic athletics.

Meanwhile, a rally to “keep women’s sports female” is planned for the 50th anniversary of Title IX on Thursday at Freedom Plaza in Washington, D.C. Female athletes whose competitions have been disrupted by transgender policies are scheduled to gather, along with former U.S. Rep. Tulsi Gabbard, D-Hawaii, and other policy leaders.

These young women athletes are calling attention to important realities about sport. Sports contests are organized among athletes of the same sex, age group, weight class, etc., so that each competitor’s training and effort—not overwhelming physical disparities—are put to the test. Mental and physical discipline yield the competitive advantage when sporting events control for variables like the bodily differences between men and women.

Competition is captivating because it is about hard work and growth. The thrill of sports is striving for excellence by drawing on all the athletic potential of our God-given bodies. Denying the reality of differences between the two sexes saps the spirit of sport, spoils the character-building capacity of fair play, and forfeits the joy of genuine competition. Sports are compelling when they are based on honesty and integrity. After a half-century of building that interest, the future of women’s sports will depend on telling the truth about who is a woman.