As New Title IX Regulations Loom, Pushback Grows From Multiple Sides

In June 2021, the Department of Education’s Office of Civil Rights announced that Title IX prohibitions on sex-based discrimination would be extended to include discrimination based on both sexual orientation and gender identity. 

But as the new regulations are expected to drop sometime this month, a growing coalition of ideologically diverse groups is forming to push back against this change, citing concerns over due process in Title IX sexual abuse investigations and worries about protecting women’s rights.

Lawmakers in the House and the Senate are pushing for a clarification on the definition of biological sex, as members of both houses of Congress allege that redefining sex disenfranchises women in traditionally gender-segregated spaces, from prisons to athletics. Both Senate Resolution 644 and House Resolution 1136 (spearheaded respectively by Sen. Cindy Hyde-Smith of Mississippi and Arizona Rep. Debbie Lesko, both Republicans) assert that “for purposes of Federal law, a person’s ‘sex’ means his or her biological sex (either male or female) at birth,” and that “for purposes of Federal law addressing sex, the terms ‘woman’ and ‘girl’ refer to human females, and the terms ‘man’ and ‘boy’ refer to human males.”

Dubbed the “Women’s Bill of Rights” and essentially identical in wording, both resolutions emphasize the legal roots of redefining sex, referring to “recent misguided court rulings related to the definition of ‘sex’ have led to endangerment of spaces and resources dedicated to women.” It is unclear whether this is meant to refer specifically to Bostock v. Clayton County, the Supreme Court’s landmark 2020 decision that banned employers from discriminating against gay and transgender employees.

In addition to the clarification of sex-related terms (covering “boy/girl,” “man/woman,” and “mother/father”) the resolutions enumerate two specific ramifications of the change in terms: Policies regarding sex differences must be open to “constitutional scrutiny” and permitted only if they serve an “important governmental objective,” and government-collected data that is separated by sex must base such data on respondents’ biological sex at birth. 

The Department of Education’s move is largely influenced by the Bostock decision. “Today, the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools that are free from discrimination,” U.S. Secretary of Education Miguel Cardona said in a 2021 statement. The department currently plans to redefine sex to encompass “sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.” 

Concerns about the new regulations’ implications for other sectors largely mirror the issues laid out in the Women’s Bill of Rights “where biology, safety, and privacy are implicated,” including athletics, prisons, and public restrooms. On the athletic side, multiple female athletes have raised concerns about competing alongside transgender female athletes. In 2020, four Connecticut athletes filed a lawsuit against the Connecticut Interscholastic Athletic Conference alleging that allowing biological males to compete side-by-side with female athletes violated Title IX. The ACLU called the lawsuit “fear mongering intended to push transgender and nonbinary people out of public spaces” in 2019.

Outside of Connecticut, the Lia Thomas controversy garnered increased attention to the issue of transgender athletes in women’s sports. Thomas became the first openly transgender athlete to win a NCAA Division I swimming national championship, in the women’s 500-yard freestyle, leading some to allege that Thomas, born a male, possessed an unfair advantage in athletic competition. Civil rights attorney Nancy Hogshead-Makar explained the arguments at play in a February 2022 editorial for Swimming World Magazine. “Sport has been set up as binary with males and females, and sport needs to adapt by adding new events and classifications, rather than throwing out the meaning of the ‘girls’ and ‘women’s’ categories,” writes Hogshead-Makar, a four-time Olympic medalist. “Women are expected to graciously move over and let trans athlete-inclusion change the meaning of the ‘women’s sports’ category. It is sexist.”

In various prisons, female inmates have reported assaults by biologically male inmates who were moved to women’s facilities. In February 2020, a female inmate at Illinois’ Logan Correctional Center alleged being sexually assaulted by a transgender inmate in her housing unit, before the incident was covered up by the Illinois Department of Corrections (IDOC). In a complaint, the Jane Doe inmate’s counsel wrote that “The transfer of transgender inmates from male to female prisons has been a contentious policy within IDOC.” The suit explains that the victim was “terrified of this inmate,” who was “much bigger and stronger” than she was. Shortly after, the victim reported being raped.

Additionally, in New York’s Rikers Island, a transgender inmate pleaded guilty to raping a fellow prisoner in February 2021. According to investigators, 33-year old Ramel Blount, going by the name Diamond, approached a female inmate in the prison bathroom before holding her down by the back of the neck and raping her. Blount received seven years with eight years of supervision post-release.

On Tuesday, a female inmate at the Central California Facility for Women claimed to be a witness to events surrounding sexual assault of a female inmate by a transgender inmate in the Chowchilla state prison. According to inmate Mimi Le’s sworn declaration, the unnamed female was taken to the prison’s medical facilities after allegedly being raped by Jonathan Robertson, also known as Siyaah Skylit. Reduxx, which broke the story, reported that “Robertson was previously the subject of widespread trans activist campaigns attempting to relocate him from a male facility to the women’s institution he is now in.” Le said that, after seeing Robertson taken out of the unit in handcuffs, several other inmates confirmed that Robertson had verbally harassed female inmates after the alleged sexual assault, yelling, “I’ll rape you … There is nothing you b—s can do.” Le’s testimony is part of material provided to Reduxx that will soon be included in a lawsuit against the state of California, launched by the female advocacy group Women’s Liberation Front (WoLF).

WoLF Executive Director Mahri Irvine expressed frustration at the seeming lack of protective policies in place at the prison to protect female inmates from such situations: “How many more rapes must these women endure before prison administrators and state legislators will be held accountable for their abject failure to protect female inmates from predatory men?”

Transgender issues are only part of a wider controversy surrounding the anticipated changes. Major Title IX law firms such as Nesenoff & Miltenberg joined the coalition to advocate against federal redefinition of sex. Managing partner Andrew Miltenberg made headlines in 2017 and 2018 as an ardent defender of college students accused of sexual misconduct. 

Miltenberg said in an interview with The Dispatch that he thinks the danger of new Title IX regulations is not the extension of Title IX to transgender issues, which he sees as a good thing. His objection is to the fact that the new regulations would undo much of the Trump-era progress made on Title IX policies and due process under former Education Secretary Betsy DeVos. “We saw how the Trump administration and Betsy DeVos made the process issue more equitable,” he said. “Everyone in this area was certain that if Biden won, we’d take a step backwards, and that’s what’s happened.” 

The firm’s Title IX consultant, Marybeth Sydor, told The Dispatch that, while the federal regulations will be vital to understanding the status of Title IX going forward, state regulations on matters of sexual misconduct and the choices of individual schools will also play a major role. “While everyone is focused on the scope of changing federal regs, we have to keep an eye on the states,” she said, noting the difference between various states’ Title IX-related protocols, from New York’s requirement to notate sexual misconduct/violent crimes on an offender’s transcript to Texas’ criminalization of neglecting to report sexual assault in a timely manner. To Sydor, it’s also important that the new regulations contain options for negotiating solutions between parties before a hearing has to take place: “Everyone hopes that the new regulations have informal resolution and restorative justice options.”

Yet Miltenberg isn’t optimistic about the forthcoming regulations. “Pulling back from the advances that the Trump administration made in regards to Title IX policy and protocol (including allowing an accused student’s advisor to cross-examine parties and witnesses) is a dangerous issue,” he said. “It’s not a gender issue. It’s easy to throw a lot of smoke and make that the issue.” 

Miltenberg says that the Trump-era regulations created a framework that made handling Title IX issues easier and more understandable. “The regulations that DeVos put in place leveled the playing field so that Title IX processes at campuses were equitable and transparent and led everyone to confidence in the process that led to that outcome.” Before the DeVos regulations, the lack of evidence and consistent due process during sexual assault investigations didn’t inspire confidence in the integrity of the legal system: “The majority of [Title IX] cases don’t have any direct evidence; in the vast majority of cases, everyone thought the result was ridiculous. There was no sense of any method. That apparent lack of framework is very disconcerting to people whose life and education and career are on the line here.”

Before the DeVos regulations, the department simply defined sexual harassment as “unwelcome … conduct of a sexual nature.” DeVos-era regulations framed sexual harassment as being actionable if it was “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Additionally, current regulations require school administrators with actual knowledge of sexual harassment to respond in a reasonable manner “in light of the known circumstances,” as well as require schools to use consistent standards of evidence for all Title IX investigations. The new regulations are expected to return to the looser pre-DeVos standards.

In addition to undoing Title IX progress, a letter from 15 attorneys general warning that expanding the definition of sex would undo much of the progress made towards “equal athletic opportunity [for women]” in America. Signed by AGs in Alabama, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Texas, the letter asserts that “an interpretation of Title IX that goes beyond sex to include gender identity has and will be used by schools to improperly intrude into parental decision-making” in children’s education.

While the push in Congress and among attorneys general has fallen among partisan lines, a coalition of 88 interest groups that in some ways transcends usual ideological fault lines has formed to push back on the Biden administration’s redefining of sex. Organizations from the heavily pro-Trump America First Policy Institute, to pro-life advocates at the Family Policy Alliance, to due-process watchdog groups like SAVE, to abortion advocates at the Women’s Liberation Front have banded together. Edward Bartlett, president of SAVE, told The Dispatch that Title IX’s initial goals of preventing gender-based discrimination have gradually been expanded to political goals. “Progressives have weaponized Title IX to push various social agendas that go beyond sex discrimination,” Bartlett said, noting that President Joe Biden has vowed since before his presidency to expand Title IX’s protections to transgender students. Now, says Bartlett, the reaction is only growing: “We’re seeing a tidal wave of public concerns about these issues.”

“Women’s sex-based rights are under attack at all level of government in the U.S.,” asserts Kara Dansky, president of the U.S. chapter of Women’s Declaration International and former board member at the Women’s Liberation Front, where she served until 2020. Dansky told The Dispatch that the simplicity of the Women’s Bill of Rights doesn’t diminish its importance: “It is unfortunate that we need to clarify this in federal law, but we do. All over the country, women are being forced to share prison cells, domestic violence shelters, bathrooms, and sports with men and boys who claim to have a female ‘gender identity.’” Dansky had previously commented on the strange alliance between groups like the Family Policy Alliance and the Women’s Liberation Front: “The left has pretty much sold out women on these issues … we stand up for women and girls, and to the extent that [groups like] Family Policy Alliance also stand up for women and girls on these issues, we’ll work together.” She told The Dispatch that pushing back on redefining gender is vital, even when it means criticizing her own party: “Much of this is happening because of a series of orders that the Biden administration issued in 2021 that redefine sex to include ‘gender identity’ throughout federal administrative law. I say this as an angry lifelong Democrat.”

To many, including Edward Bartlett of SAVE, these issues demand greater clarity in legal language surrounding issues of discrimination: “Talking about these issues in a thoughtful way does not mean a resurgence in bigotry.”