Title IX wins, for now

The Supreme Court last week rejected the Biden-Harris administration’s attempt to reinstate its new Title IX rule that redefines sex to include gender identity. The Department of Education had asked the court to reinstate most of its new Title IX rule, arguing that it should be allowed to take immediate effect. The court disagreed, finding that the plaintiffs were entitled to preliminary injunctive relief as to at least three challenged provisions of the rule—including “the central provision” that newly defines sex to include gender identity. On that, all nine justices agreed. The court majority of five justices also refused to reinstate the remaining provisions, finding that they were intertwined with the new definition of sex and not easily severable.

In the early 1970s, athletic opportunities for women were paltry, with a mere 7 percent of high school girls competing in sports. In 1971, for example, approximately 294,000 girls played a high school sport, while some 3.7 million boys participated in athletics. In 1972, college athletic scholarships for women were nearly nonexistent, and female athletes were allocated only 2 percent of college athletic budgets.

It is the rare congressional enactment that has an immediate effect. But Title IX was just such an enactment for women across the country, including my mom, Shari Bannon. Enacted by Congress in 1972, the bipartisan legislation reverberated throughout the country, requiring equal academic and athletic opportunities for women, no matter where they lived or how small and rural their school district was. And that brought girls basketball to the village of Des Moines, N.M. For the first time and as a senior, my mom and her fellow female athletes were not limited to cheering on the men’s basketball team. Now, they could compete on the court themselves.

That monumental piece of legislation—which requires school districts to provide roughly equal opportunities and funding for men’s and women’s sports—is now in danger. The Biden-Harris administration has rewritten the statute, redefining “sex” to include gender identity. This forces schools to ignore the biological differences between male and female students in favor of “an individual’s sense of their gender.” This newfound definition threatens the academic and athletic advancement women have worked so hard to achieve.

First, the Biden-Harris rule threatens to turn back the clock on women’s athletics. The logic behind the rule would mean school districts across the country must allow men to compete in women’s sports based on their “individual sense of their gender.” Such a rule would undermine and ultimately destroy women’s athletic achievements. That’s because men are generally bigger, faster, and stronger than women. Take Lia Thomas—a middle-of-the-pack men’s swimmer—who smashed Ivy League and pool records and went on to win at the NCAA Division I Swimming Championships when competing against women.

Perhaps recognizing how unpopular such a sports rule is with the American public, the Biden-Harris administration says that its new Title IX rule does not cover sports at all. That subject will be addressed by the White House later. That’s a strange carve-out for a statute that primarily addressed discrimination in women’s sports. But in any event, the rule does redefine sex for purposes of Title IX to include gender identity. Thus, under both the language and rationale of the rule, women’s sports are no longer for women only but also for anyone who identifies as a woman. In fact, the Biden-Harris administration has already taken the formal position in court that Title IX requires letting males compete in women’s sports.

There’s more. The Biden-Harris Title IX rule rewrite directly threatens the safety and privacy of school-age girls. The new rule requires that schools admit men who identify as women to intimate spaces like women’s restrooms, locker rooms, and showers. It also requires their admittance to women’s physical education classes.

That’s why Alliance Defending Freedom, where I work, has filed five different lawsuits against the unlawful rewrite of Title IX. All five U.S. District Courts have agreed that the Biden-Harris Title IX rule unlawfully threatens women’s privacy and safety and as a result held that the rule could not go into effect. When the Biden-Harris administration tried to narrow those injunctions and allow part of the new rule to go into effect, the 5th and 6th U.S. Circuit Courts of Appeals agreed with the District Courts, holding that the Department of Education may not enforce the rule in the states of Tennessee, Indiana, Ohio, West Virginia, Kentucky, and Virginia, as well as Louisiana, Mississippi, Montana, and Idaho. In one case, ADF attorneys represent a West Virginia high school female athlete and the Christian Educators Association International. In the other, they represent a Louisiana school board serving more than 20,000 students.

The Supreme Court ruling is just the starting salvo in the battle to save Title IX, but it is an encouraging one. The case was in a preliminary posture—but according to the decision, all nine justices believed that the plaintiffs had shown that the core definitional provision of the new rule redefining sex to include gender identity should not be enforced. This bodes well for women’s sports and their safe access to private spaces.