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Biden admin. working to redefine 'sex' with proposed Title IX rule changes, critics say

Joshua Roberts/Getty Images
Miguel Cardona speaks after President-Elect Joe Biden announced him as his nominee for Education Secretary at the Queen theatre on December 23, 2020, in Wilmington, Delaware. |

The U.S. Department of Education has unveiled proposed changes to federal civil rights law to clarify that protections against sex discrimination "include discrimination based on sexual orientation and gender identity."

The proposal sparks concerns from conservative groups, female athletes and civil rights groups that the Biden administration is working to redefine "sex" over half a century after Title IX was enacted to protect women from discrimination in education. Progressive organizations celebrated the rule proposal as a "critical step" in protecting LGBT students from discrimination. 

The Education Department announced the proposed changes in a Thursday statement, marking the 50th anniversary of the passage of Title IX of the Education Amendments of 1972.

Title IX's purpose is to provide equal opportunities to women and girls in education, including athletics. 

"Over the last 50 years, Title IX has paved the way for millions of women and girls to access equal opportunity in our nation's schools and has been instrumental in combating sexual assault and sexual violence in educational settings," said Secretary of Education Miguel Cardona. "As we celebrate the 50th anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all students — no matter who they are, where they live, or whom they love — can learn, grow, and thrive in school."

A fact sheet compiled by the department indicates that the proposed amendments to Title IX would "protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics."

Specifically, "they would make clear that preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX, except in some limited areas set out in the statute or regulations."

However, the document noted that "the Department plans to issue a separate notice of proposed rulemaking to address whether and how the Department should amend the Title IX regulations to address students' eligibility on a particular male or female athletics team."

The proposed amendments come as 18 states have passed legislation banning trans-identified males from competing in women's sports, citing concerns that the inherent biological differences between men and women give trans-identified males unfair advantages over their biologically female counterparts. 

The American public will have 60 days from the publication of the department's latest guidance in the Federal Register to comment on the proposal. 

The American Principles Project, a conservative organization that supports legislation barring trans-identified males from competing against biological females in athletics, released a statement criticizing the proposed changes to Title IX.

"Fifty years ago, Congress passed Title IX to safeguard educational opportunities for women and girls. Today, Joe Biden and his administration have officially gutted those protections, endangering female students and foisting gender insanity on our schools," said APP President Terry Schilling.

"Under these new regulations, schools will now be required to allow boys into girls' private spaces merely if they claim to be female. This is a severe threat to the safety of women and girls, as we've already seen in Loudoun County, Virginia, where last year a male student in a skirt sexually assaulted a girl in a restroom. It is also, at the very least, an outrageous infringement on the privacy of students."

Schilling contends that the proposal "will also violate the free speech rights of teachers, who could be forced to use all manner of absurd pronouns or risk being accused of harassment and discrimination."

"Joe Biden and his administration have now made clear they care more about the extreme demands of woke activists than the well-being of millions of teachers and students who will be negatively affected by this rule," Schilling claimed. 

Louise Melling, the deputy legal director with the progressive civil rights group American Civil Liberties Union, praised the rule proposal.

"Protecting LGBTQ students from discrimination recognizes the humanity of all people," Melling said in a statement. "When LGBTQ youth are supported and affirmed, they are not only more likely to succeed in school but have better mental health outcomes. The Secretary's action is critical now, as politicians around the country are attacking trans youth. The message is clear and it is right: LGBTQ youth belong in our schools."

Craig DeRoche, CEO of the socially conservative group Family Policy Alliance, believes that the Biden administration "used 700 pages to redefine 'sex' in Title IX, undoing the law that advanced equality for my wife and daughter." 

The alliance warns that the rule changes would "force girls to share private spaces like showers, locker rooms, and bathrooms with males, force girls to lose sex-specific scholarships to males who identify as female, potentially further the LGBT political agenda in public school curriculum and policies, silencing girls who express concerns about their privacy and safety, and shutting down any opposition to transgender ideology by labeling 'disagreement' as 'disinformation.'"

"[T]he Biden Administration may soon put girls' sports on the chopping block too," DeRoche said, referring to the department's plans to release guidance on the application of Title IX regulations to participate in athletics.

Riley Gaines, a University of Kentucky swimmer who competed against trans-identified swimmer Lia Thomas at this year's NCAA Championships, is among those who have spoken out against the proposed rule. She participated in an "Our Body, Our Sports" rally held in Washington, D.C., Thursday.

"Rewriting Title IX and redefining what sex is, is taking away everything that sex has stood for the past 50 years, and everything that women have fought so hard to get, like equity and fairness, and equal opportunities," she told Fox News. "This destroys that and the integrity of woman's sports will be completely lost and a thing of the past."

The proposed rule changes are the latest example of the Biden administration citing the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County. The high court ruled that firing an employee based on sexual orientation or gender identity constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

Last year, the U.S. Department of Health and Human Services pointed to Bostock when declaring that it would enforce Section 1557 of the Affordable Care Act to protect "the civil rights of individuals who access or seek to access covered health programs or activities" and prevent discrimination "against consumers on the basis of sexual orientation or gender identity." 

Critics maintained that this policy would force faith-based healthcare providers to cover gender transition surgeries even though such policies contradict their religious beliefs. While much of the criticism surrounding the Biden administration's proposed amendments to Title IX surrounded its provisions on LGBT issues, other organizations pushed back on the planned revision of policies addressing allegations of sexual assault or misconduct on college campuses.

The nonpartisan Foundation for Individual Rights in Education released a statement expressing concern that the new regulations would "gut essential free speech and due process rights for college students facing sexual misconduct allegations on campus."

The advocacy organization laid out what it viewed as the most problematic aspects of the draft regulations, including "eliminating students' right to a live hearing; eliminating the right to cross-examination; [and] weakening students' rights to active legal representation."

FIRE suggested that the regulations would allow "a single campus bureaucrat to serve as judge and jury." The group believes the proposal rejects "the Supreme Court's definition of sexual harassment in favor of a definition that threatens free speech rights" and requires "colleges and universities to use the weak 'preponderance of the evidence' standard to determine guilt, unless they use a higher standard for other alleged misconduct."

Failure to comply with provisions in the rule changes could put federally funded schools and colleges at risk of losing money. 

Ryan Foley is a reporter for The Christian Post. He can be reached at: ryan.foley@christianpost.com

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