Now the Olympics, the world’s most elite sporting event, has concluded we are all left with some challenging and provocative questions to consider and resolve. How do we, for sports purposes, identify what constitutes a man or a woman? Is it chromosomes? Is it external body parts? Is it testosterone levels? Does kindness, tolerance and compassion require males-who-identify-as-female be allowed to compete in women’s sports?
These are questions United Families has addressed in the past, but these questions have been in front of United Families International for many years. We have engaged in the efforts to pass Protect Women’s Sports legislation in numerous states and worked alongside others, including with various coalitions, to curtail a re-write of Title IX “guidance” and “rules” being pushed by the Biden administration’s Department of Education. UFI’s efforts continue and here’s an update.
In the past week, the Supreme Court of the United States (SCOTUS), delivered their opinion on the current Title IX litigation happening between six US states headed by Tennessee and Louisiana, and the Department of Education. After the Biden administration released their egregious and drastic changes to the Title IX statute back in April, twenty-six states challenged it. The court of appeals for the 5th and 6th circuits both have heard the case made against the new rule and have issued a preliminary injunction, meaning temporarily stalling the activation of the new rule and allowing schools to continue on with the status quo.
The Department of Education decided to appeal that decision by turning to SCOTUS and requesting a partial stay on the injunction that they deemed “overbroad.” In short, they desired that only the three main provisions the states had an issue with be prohibited, while allowing the rest of the rule to carry on as intended.
The three main provisions are as follows:
- 106.10 Clarifies that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
- 106.31 (a)(2) Clarifies that a recipient must not separate or treat any person differently based on sex in a manner that subjects them to more than de minimis harm, except in the limited specified circumstances permitted by Title IX. Recognizes that preventing a person from participating in a recipient’s education program or activity consistent with their gender identity subjects that person to more than de minimis harm.
- 106.2 Also clarifies that sex-based harassment includes harassment on these bases and further clarifies when sex-based harassment creates a hostile environment.
All nine supreme court judges were in agreement that the three main provisions should remain temporarily barred from being introduced to the school systems until the courts have worked out the legality of them. What was not unanimous was the question as to whether or not the new rule in its entirety should be also temporarily barred.
It was the Department of Education’s opinion that the three provisions could be severed from the rest of the rule and that the remaining rule could be implemented (they argued the rest of the ruling does not need the three provisions to stand). Justice Sotomayor, Justice Kagan, Justice Gorsuch, and Justice Jackson were in agreement with the Department of Education, and Sotomayor wrote her dissent outlining why they found no reason that the rest of the rule could not be activated.
Sotomayor wrote, “By blocking the Government form enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents’ alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here…The injunctions will also affect the public. Individuals in the respondent states will be deprived of guidance related to their rights under Title IX…”
To be sure, the States do not feel that way, and in their report outlining their opposition to the government’s call for a partial stay they made sure to explain several times that their grievance is with the rule as a whole, not just the three provisions.
In fact, they outlined with detail as to how severing the three provisions would only sow confusion and frustration in the school systems. They stated:
“It’s easy to see why the government’s partial-roll-out proposal is “particularly problematic.” It would require the States’ school systems to hold scores of public meetings to “overhaul[l]” school-district policies.; train hundreds of thousands of employees; and revamp and republish reams of handbooks, non-discrimination guidance, and related materials. Then, on top of these unrecoverable costs, a piecemeal approach would require the States and schools to sink more sums into figuring out what the partial stay means across the rule’s interrelated provisions and retraining employees after final judgement.”
The Department of Education even concedes that complying with the rule will cost between $4.6 million and $18.8 million. Should schools really be forced to comply with a half-baked mandate only to learn in a couple months that the mandate is being changed once more?
Reactions to the opinion by SCOTUS were mixed, and the country waits with anticipation to see whether or not Biden’s fanciful regulations will make the cut in the eyes of the court.
In closing, emphasis should be placed on the word “Education.” These potential Title IX changes will impact your schools, your children, your grandchildren – inside the schools in the locker rooms and restrooms, in the sports programs, and with every school trip. It matters – not only for the safety, privacy, and opportunities of female students, but for society as a whole.