Upholding female athletes

MYRNA BROWN, HOST: It’s Monday the 27th of August.

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

NICK EICHER, HOST: And I’m Nick Eicher.

Well, our colleague Mary Reichard continues to recuperate from the heart procedure that took her off the air a few weeks back. And while she’s working through her treatment, she’ll be making a slow—but we hope steady—return, starting today.

MYRNA BROWN, HOST: Mary had a conversation with Alliance Defending Freedom senior counsel Christiana Kiefer on civil rights protections for women in education.

You’ll remember that the Biden administration made controversial changes to what’s known as Title IX. Among other things was a redefinition of sex discrimination to include men who claim to be women. Lawsuits filed over the summer sought successfully to block enforcement of the rules while the legal challenge went forward.

EICHER: A week and a half ago, the Supreme Court denied the Biden administration emergency appeal to keep the rule change in place. Where does that leave the students Title IX was designed to protect?

Here’s Mary’s interview with ADF’s Christiana Kiefer.

MARY REICHARD: Christiana, thanks so much for joining us this morning.

CHRISTIANA KIEFER: Thank you for having me.

REICHARD: Well, when these rules went into effect on August 1 more than half of the states had secured injunctions blocking those rules from going into effect. So, do these injunctions mean only the new rules cannot be enforced, or do they mean Title IX as a whole cannot be enforced.

KIEFER: So, it only means that the new rules, the new Biden-Harris rules, cannot be enforced as they were issued in the spring. And that's great news for the female athletes and the other women and girls in those 26 states that are currently enjoying having those rules on pause. The big problem here is that the Biden-Harris rules flipped Title IX completely on its head by redefining sex discrimination to include gender identity, and as we have seen play out in the past, we know exactly how this turns out. It allows males who simply self-identify as girls to access girls’ sports teams, their locker rooms, their shower spaces, even their overnight hotel accommodations. So, it really flips Title IX on its head and would have a devastating impact on women and girls across the country if it's allowed to proceed.

REICHARD: Well, homing in on the Supreme Court's recent five-to-four ruling. What exactly did that decision do?

KIEFER: So, the Biden-Harris administration had asked the court to partially reinstate the new Title IX rules where they're currently blocked, and the Supreme Court said no. Now the court did not give us much analysis there, but he it did say that they unanimously agreed that the lower courts were right to block the rules, and in order to reach that conclusion, the Supreme Court had to agree with us, with the states, with the female athlete plaintiffs, that the new Title IX rules are likely to be unlawful and unconstitutional. So it's a very hopeful sign.

REICHARD: Well, as you say, the justices were unanimous in upholding those injunctions, but they did disagree on how broad the injunctions ought to be. Now, Justice Sonia Sotomayor wrote a dissent, and she was joined by the two liberal justices, Elena Kagan and Ketanji Brown Jackson, and also conservative justice Neil Gorsuch. The four of them objected to putting on hold all of the Title IX rewrite – they would have just put on hold some of them. So, Christiana, my question is, what do you think Justice Gorsuch might have been thinking to want to let in some of the Title IX changes that the Biden administration wants?

KIEFER: So, I wouldn't read too much into that. Justice Gorsuch, in the past, has been very concerned about injunctions that he perceived to be over broad. And so, given the very technical nature of this emergency question that was presented to the court, I wouldn't read much beyond that. Yeah, I'm not too concerned about what it might look like in the future. I think he was really concerned about the overbroad nature of the injunction.

REICHARD: So, the Supreme Court ruled on the injunction, but not the merits of the matter. Is there any case coming up through the federal courts that the justices might take for review this next term?

KIEFER: So, there are two cases the court has currently been asked to review, one out of Idaho, Hecox v. Little, and one out of the state of West Virginia, B.P.J., and both of those are ADF cases trying to protect the right of states to preserve fair and safe sports for female athletes. Both Idaho and West Virginia passed laws to ensure that if you have a girls sports team, only female athletes compete on that team. And both of those laws were immediately challenged by the ACLU, representing males who were demanding access to those female spaces. So, we've asked the court to consider both of those cases, and we hope that the court might take those up this term.

REICHARD: You know, I'm curious about something. You don't see girls invading boys’ sports and taking away their trophies and their scholarships and so forth. We only see it going the other direction. Why isn't that front and center in the arguments against what the Biden administration is trying to do?

KIEFER: It certainly does highlight the physical differences between the sexes, right? That's the reason that we have Title IX passed more than 50 years ago, to start with, is to ensure that women and girls put that past discrimination behind them. They get that level playing field and the equal athletic opportunities. And really, as a result of Title IX, we have watched America produce some of the most incredible female athletes the world has ever seen, Katie Ledecky, Simone Biles, so we want to continue that legacy and ensure that women and girls are protected, and the future generations have these opportunities as well.

REICHARD: Final question here, Christiana. These rules also cover how to handle claims of sexual harassment. I've heard many voices saying they also fail to protect the due process rights of the accused, usually young men. That's just to name two other aspects of the Title IX changes. Are there other rules in this guidance that families and states where the rules are still in effect, should they be aware of?

KIEFER: I think parents and school districts across the country should be deeply concerned about the Biden-Harris rule rewrite. This 1500 pages of new regulations, it involves changes to 25 different regulations, and certainly at its core, redefining sex to include gender identity is going to have massive downstream effects in ways that are, frankly, even unpredictable at this point. So, I think the entire rule change, is deeply problematic and something that needs to be stopped.

REICHARD: Christiana Kiefer is senior counsel for the Alliance Defending Freedom. Thanks so much for your time!

KIEFER: Thanks for having me.

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