Adding Title VII to Title IX

NICK EICHER, HOST: It’s Tuesday the 23rd of April, 2024.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

First up: Big changes to Title IX protections for women.

On Friday, the Department of Education released new rules expanding the scope of Title IX that prohibits sex discrimination in higher education.

EICHER: Last year, the Biden Administration proposed redefining sex to include sexual orientation and gender identity. How this affects women’s athletics is still in question. But these changes also affect men, and they are set to take effect in August.

Joining us now to talk about it is Ilya Shapiro…he’s a legal scholar and is a senior fellow and director of constitutional studies at the Manhattan Institute.

REICHARD: Ilya, good morning.

ILYA SHAPIRO: Good to be back with you, Mary.

REICHARD: Well let’s get back to basics. What is Title IX, and what was its original purpose?

SHAPIRO: Title IX was enacted in 1972, and it was explicitly about providing educational opportunities for women. It’s most famously known now for athletic opportunities. And there were controversies in the 80s and 90s about men’s teams being cut so that there’ll be an equal number of women’s teams and all of that. That’s not what the current controversy is about. As you said, this is about adding and expanding the definition of sex to include gender identity. And as you said, the Biden administration has not gone so far as to require or mandate that bathrooms, locker rooms, athletic teams, be open to people of their gender identity, but they said that if that if a given state or school district or institution wants to make that kind of rule, there is not a federal protection under Title IX for any woman or girl who doesn’t like that. 

And so, that is a big change, and as bad as that might be for equal opportunity for women and girls, it’s arguably, this rule at least, even worse for due process and free speech, in the sense that it rolls back the Trump-era protections for those who are accused of sexual harassment or misconduct, in this context, expanding the definition of what sexual harassment might be. So if you use the wrong pronouns, all of a sudden, you might be investigated under these rules, in kind of a Kafka-esque way where you’re denied a lawyer, you can’t confront whoever is accusing you or even see the full evidence against you. This obviously would have the effect of chilling speech and discussion of students, faculty, all the way from kindergarten through higher education.

REICHARD: So this rule expands the definition of sex discrimination to cover people who identify as LGBTQ. What legal basis does the education department have to redefine sex like this?

SHAPIRO: They largely cite the Supreme Court’s ruling in Bostock versus Clayton County, which is a decision from a few years ago, that under Title VII, which is employment and discrimination law, read in protections for sexual orientation and gender identity into other civil rights protections, into provisions against discrimination on the basis of sex, for example. But even on the face of that decision, the Supreme Court said this does not apply in the educational setting to bathrooms, locker rooms, etc. So I think it’s a thin reed, and of course, the purpose of Title IX—again, expanding women’s opportunities in education—is very different than the purpose of Title VII, which is an anti-discrimination provision for employment.

REICHARD: In Justice Samuel Alito’s dissent to Bostock, if I remember, he foresaw the threat to Title IX protections for women’s sports and bathrooms. Do you see other consequences on the horizon?

SHAPIRO: Well, I think Alito’s concern is being borne out, just as the concern of some with regard to Obergefell, the same-sex marriage issue that that case, despite, again, Justice Kennedy’s majority opinion saying that dissenters should be respected. But that’s being observed in the breach in so many states that are gung ho about expanding protections without new legislation – just doing it administratively. And so it’s become a brave new world. And just as the Biden administration has taken DEI, diversity, equity and inclusion programs as a whole of government initiative, sort of embedding political commissars into every federal agency, I think you have the expansion of this kind of gender theory across the educational dimension, and again, from K to 12 through higher ed, public, private anybody who receives federal funds. It’s, I think they waited on the sports and bathroom rule until a potential second Biden term, but the writing is on the wall for that.

REICHARD: Ilya, I noticed the Biden administration’s new rule aims to crack down on what it calls “sex-based harassment and discrimination.” How is that different from just plain old sexual harassment, as we used to call it?

SHAPIRO: Mary, the honest answer is I don’t know. And that is because it’s not defined. Nor is gender identity defined, by the way. This new rule is, these new sets of regulations are 1,577 pages, if you’re counting, and there’s not a definition for terms like that. So it’s a lawyer Full Employment Act. And you know, anytime somebody gets crosswise, somebody says something politically incorrect that hurt somebody’s feelings, and you you make out a case that’s sex-based or gender identity-based or something, and away we go.

REICHARD: Any other aspect of this story you want to bring more attention to?

SHAPIRO: Now, as I said, the the, you know, people are all concerned about the bathrooms in the locker rooms and the sports teams that is very much a local and state issue at this point. The regulation doesn’t change that all, it says make explicit that you’re not going to get federal protection if you disagree with what your locality or state or school district is doing in that regard. But for this regulation, not the one that might be coming down the pike later, the due process concerns and the free speech concerns are much greater.

REICHARD: Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. Ilya, thanks so much for joining us!

SHAPIRO: Thank you.

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