CounterCurrent: Week of 6/20
Last week, the Department of Education (ED) issued a new Notice of Interpretation regarding the definition of Title IX. This guidance effectively expands Title IX’s domain to include not only sex discrimination, which is its original and only purpose, but also discrimination based on “sexual orientation” and “gender identity.” The move is specious and disappointing, but not entirely surprising. After all, President Biden has called transgender discrimination “the civil rights issue of our time.”
Let’s review the original intent of Title IX, beginning with the text of the law: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. … ” [emphasis added] That’s it. Title IX goes on to define terms within and exceptions to the above text, such as single-sex institutions and Greek life, but, simply put, the law guarantees equal access in academic programs. At the time, this meant equal access for women. Most Americans supported, and still support, this uncontroversial policy, though the law was soon used by federal agencies in more controversial ways, including toward collegiate sports, still a source of dispute today.
You may be thinking: “David, I don’t see ‘sexual orientation’ and ‘gender identity’ in Title IX”—your observation is on-point. The language isn’t there. The law was witten to prohibit discrimination based on sex, which includes and is limited to sex: i.e., male and female. Other kinds of discrimination are forbidden by other laws. For example, Title VI of the Civil Rights Act of 1964 bans race discrimination in programs receiving federal funds. When federal agencies announce new applications and intentions of federal law, as the Biden Education Department is now doing with Title IX, they bypass Congress and the democratic process to distort existing policy to suit their preferences.
Of course, this is not the first time Title IX has been distorted. As National Association of Scholars Policy Director Teresa Manning details in her 2020 report Dear Colleague, American colleges and universities have for years used Title IX as a pretense to act as campus sex monitors, hearing and prosecuting alleged sex crimes independent of local law enforcement. They usually do so with little or no regard for basic judicial practice, in large part because Title IX adjudicators themselves have little or no judicial training. As one aggrieved parent put it, “My son’s hearing was a joke … He never stood a chance.”
But at least these offices were pretending to operate within the existing bounds of Title IX, building on case law to argue that sexual harassment and assault constitute a denial of educational access as such. By contrast, the ED enters entirely new terrain when it expands Title IX—by the stroke of a pen in “guidance”—to gender ideology. What this means, we don’t know for certain.
Will a Christian student (or Jewish, or Muslim, for that matter) be called into the Title IX office for refusing to acknowledge same-sex unions as a valid form of marriage? Will professors be hauled in and punished for referring to all male students with male pronouns, and vice versa? Will the women’s basketball coach be penalized for choosing not to add a transgender player to his roster? If speech is violence, as we’re told, and violence is a barrier to educational access, then these scenarios are not all that far-fetched.
Lauding the new guidance, Education Secretary Miguel Cardona said, “I'm proud to have directed the Office for Civil Rights to enforce Title IX to protect all students from all forms of sex discrimination ... 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.” Euphemisms aside, this is incredibly misguided and will have disastrous consequences for American higher education if enforced rigorously. With the concurrent nomination of Catherine Lhamon to ED’s Office of Civics Rights, the Biden administration is on a dangerous path with Title IX, one that will only lead to rampant injustice for students, professors, and administrators alike.
CounterCurrent is the National Association of Scholars’ weekly newsletter, written by Communications & Research Associate David Acevedo. To subscribe, update your email preferences here.
Image: Tim Bieler, Public Domain