WASHINGTON, D.C. – U.S. Senator Marsha Blackburn (R-Tenn.), along with Senators James Lankford (R-Okla.), Jim Inhofe (R-Okla.), Cynthia Lummis (R-Wyo.), Steve Daines (R-Mont.), Marco Rubio (R-Fla.), Rick Scott (R-Fla.), Jim Risch (R-Idaho), Mike Crapo (R-Idaho), Roger Marshall, M.D., (R-Kan.), Dan Sullivan (R-Alaska), Kevin Cramer (R-N.D.), Mike Braun (R-Ind.), and U.S. Representative Vicky Hartzler (R-Mo.) filed a public comment on the Department of Education’s newly proposed rule concerning Title IX compliance in schools and demanded Secretary of Education Miguel Cardona reconsider the rule due to its infringement on the right to equal opportunity for biological women and diminishment of a level playing field in women’s sports.
The members write in their letter, “Congress enacted Title IX 50 years ago to provide women with equal opportunities in educational programs and activities. The Proposed Rule’s interpretation of Title IX runs afoul of the clear parameters of the statute, as well as congressional intent. In fact, if finalized, it would actually have the opposite effect of the law’s intent and further erode women’s equality, privacy and safety. As Members of Congress, we have a constitutional obligation to weigh in to ensure that any rulemaking issued by agencies is consistent with the underlying statute, which this proposal certainly is not. Further, we have a significant and unique interest in representing the well-being and safety of our constituents, particularly women and children, who are put at risk by the regulations in the Proposed Rule.”
Read the letter here or below:
Secretary Cardona,
We write to express our grave concern with the intent and implications of the US Department of Education’s Proposed Rule: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41390, RIN 1870-AA16 (Proposed Rule), and urge the Administration to immediately withdraw the rule. Among other harmful changes, the Proposed Rule expands the scope of Title IX’s prohibition against discrimination on the basis of sex to include “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Congress enacted Title IX 50 years ago to provide women with equal opportunities in educational programs and activities. The Proposed Rule’s interpretation of Title IX runs afoul of the clear parameters of the statute, as well as Congressional intent. In fact, if finalized, it would actually have the opposite effect of the law’s intent and further erode women’s equality, privacy and safety.
As Members of Congress, we have a constitutional obligation to weigh in to ensure that any rulemaking issued by agencies is consistent with the underlying statute, which this proposal certainly is not. Further, we have a significant and unique interest in representing the well-being and safety of our constituents, particularly women and children, who are put at risk by the regulations in the Proposed Rule.
1. The Proposed Rule is inconsistent with the law, and is the latest attempt to erode the Congressional intent and statutory text of Title IX.
On June 23, 1972, after in depth Congressional consideration and subsequent agreement, President Richard Nixon signed Title IX into law to prohibit discrimination on the basis of sex in any educational program or activity that receives either direct or indirect federal funding.
Title IX ensures women and girls are given the same opportunities in school afforded to men and boys. Unfortunately, over the past decade, two Administrations have attempted to undercut the statutory purpose of the law and to use it as a way to promote progressive gender ideology.
In 2010 and 2011, the Obama Administration sent multiple Dear Colleague letters to every public school and university in the country to expand policies related to campus assault and harassment. Since it was merely a Dear Colleague letter and not a rule, these “regulations” were implemented outside of the formal federal rulemaking process, clearly in order to bypass such process.
The Departments of Education and Justice subsequently sent another Dear Colleague letter in 2016, again to all public schools and universities in the country, claiming that, “[a]s a condition of receiving Federal funds,” schools must “treat a student’s gender identity as the student’s sex for purposes of Title IX.”
As a result, schools were prohibited from maintaining separate locker rooms, shower facilities, and restrooms for male and female students based on their biological differences. Because the letters lacked foundation in Title IX’s statutory text, and it attempted to create federal policy outside of the public rulemaking process, they did not carry the force of law, and created a lack of clarity around the scope, application and enforcement of Title IX. The policies pushed in the letters caused mass confusion among states, schools, parents and children.
Thankfully, both letters were swiftly revoked in 2017. Further, the Trump Administration issued a rule to prevent and respond to instances of sexual harassment and assault. Among other things, the rule respected Title IX’s statutory text and Congressional intent; it protected both victims and the accused, while also taking important steps to ensure that religious freedom protected by clarifying what institutions are exempt from compliance with Title IX.
The current Administration has seized our nation’s primary and secondary schools, colleges and universities, to enact political, social and cultural change, with no regard for the harmful repercussions or the rule of law.
On his first day in office, President Biden issued an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. Contrary to the protections Congress afforded to women and girls under Title IX, this Executive Order unfairly called for the elimination of equal opportunity for girls in sports and dangerously suggested that children in schools should not have access to sex-specific bathrooms, locker rooms and other private spaces.
As if that wasn’t enough, the Department of Justice (DOJ) published a memorandum in March 2021 that further misinterpreted Title IX. As a legal foundation for its misapplication of the law, DOJ cited the Supreme Court’s decision in Bostock v. Clayton County, which held that “an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’” Notably, the opinion in Bostock explicitly stated that it applies only to hiring and firing decisions under Title VII, leaving other issues and other laws for another day.
The Department of Education followed DOJ’s lead by publishing a notice of interpretation to assert that Title IX’s protections extend to claims based on “sexual orientation and gender identity.” This interpretation, which rewrites the plain meaning of sex, is now in the Proposed Rule.
The Proposed Rule would radically redefine discrimination on the basis of sex to include sexual orientation and gender identity (both of which are left without clear definitions), sex stereotypes, (defined as “fixed or generalized expectations regarding a person’s aptitudes, behavior, self-presentation, or other attributes based on sex”), and sex characteristics, (which includes “a person’s physiological sex characteristics and other inherently sex-based traits,” or “intersex traits”).
The Proposed Rule claim that because the statute does not explicitly define sex as biological, “the Department does not construe the term ‘sex’ to necessarily be limited to a single component of an individual’s anatomy or physiology.”
To be clear, sex is biological. Unlike the assertions in the Proposed Rule, “sex” does not “encompass many traits.” Sex is not one’s self-asserted belief about himself or herself based on emotions, preference, self-presentation or behavior. Sex is binary. People are either male or female as demonstrated by their DNA, reproductive biology and other immutable characteristics. The proposed rule’s attempt to expand the definition of sex, while simultaneously neglecting to clearly define what the Department means by such an expansive definition, demonstrates that it is more focused on pushing an ideology rather than protecting individuals from discrimination.
There is no question that this expansion of the meaning of sex goes far beyond the statute, Congressional intent, and Supreme Court opinions. Indeed, while the Proposed Rule attempts to find its footing in the holding of Bostock, the Court’s decision is based on the reality that sex refers “only to biological distinctions between male and female.”
It’s clear that regardless of Title IX’s statutory text and the requirements of the rulemaking process, the Department of Education is pushing schools to apply Title IX’s prohibition on sex discrimination to sexual orientation and gender identity. This is antithetical to the statutory text and congressional intent of Title IX and should not be finalized.
2. The Proposed Rule undercuts equal opportunities and neglects the safety and privacy rights of women and girls in education.
By passing Title IX, Congress recognized the need for explicit laws to protect women and girls and promote a level playing field for equal opportunities within education.
In addition to its dissonance with the law, the Proposed Rule will disadvantage and harm women and girls, as we have already seen a number of times where similar policies have been in place.
The Proposed Rule says that “preventing any person from participating in an education program or activity consistent with their gender identity would subject them to more than de minimis harm on the basis of sex and therefore be prohibited, unless otherwise permitted by Title IX or the regulations.” This scope reaches far and wide with little guardrails to protect women.
Under the Proposed Rule, sex-specific spaces, including housing, bathrooms and locker rooms, at primary, secondary and post-secondary institutions will be based on undefined “gender identity.”
The Proposed Rule rewrites the intent of Title IX in such a way that it could, and will, be used by those who desire to cause harm. The Proposed Rule will only make it harder for school officials to protect children, as child predators and those who are intending to cause harm to children could use these policies to gain access to private spaces such as bathrooms or locker rooms.
The Proposed Rule should be clear that under Title IX, sex is biological and binary.
A. The Proposed Rule ignores First Amendment free speech and religious freedom protections and parental rights.
Policies included in the Proposed Rule could require teachers, administrators, contractors and grantees to undergo training to “affirm” students’ sexual identities. This is a clear violation of the free speech protections guaranteed by the First Amendment. Such policies could also purportedly compel teachers and school personnel to participate in teaching gender ideology in the classroom, including using preferred pronouns and names. Children and educators would be forced to learn and accept curriculum that affirms a progressive and baseless ideology with contrary opinions shared because of the threat of such dissent being considered discriminatory. For example, in Virginia, a French teacher was fired for refusing to use a student’s preferred pronouns.
The 2020 Title IX rule made clear that the Title IX does not restrict any rights guaranteed by the First Amendment, so it would not limit free speech or the free exercise of religion. The Department should similarly ensure that the Proposed Rule will not limit these Constitutional protections, especially for people of faith, at Title IX entities. Without such clarifications, it is possible that the Proposed Rule would have a chilling effect for people and groups of faith or those who hold prolife views, who will be afraid to speak about their beliefs at risk of being unjustly accused of harassment.
Similarly, as the Proposed Rule promotes the affirmation of gender ideology and abortion, the Department should make clear that no student, teacher, administrator or employee of a Title IX covered entity will be compelled to affirm, teach or promote gender ideology in or out of the classroom.
Neither the federal government nor any school, is in a position to govern the conscience and beliefs of students, parents, teachers or administrators. Traditional beliefs about gender, sex and marriage should be honored and respected in the public square, including schools. Our Constitution distinctly protects free speech and religious freedom. As such, the Department of Education must ensure these rights are afforded equal protection and respect.
Further, parental rights must be foundational. Yet, the Proposed Rule seems to forget them. The Department should make clear that any attempt by a school to “affirm” a student’s gender identity that is incongruent with the child’s biological sex must be made known to the child’s parents, including anything related to social or medical transition. Schools and the government have never been and will never be a substitute for parents. All gender alterations – whether social or medical – could present serious, long-lasting physical, emotional and relational harm to children, such as infertility, bone development, brain development, and more. As such, schools should never hide such information from parents.
B. The Proposed Rule will harm women’s and girls’ athletic opportunities.
The Proposed Rule claims to remain silent on the application of its policies to athletics, with the announcement of a separate, forthcoming rule. However, the policies outlined in the Proposed Rule have already and will continue to be a detriment to ensuring an equal playing field for women and girls in sports.
The Department purports to claim that the Proposed Rule does not address women’s and girls’ athletics. Instead, the Department of Education said it “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 to participate on a particular male or female athletics team.” But nothing in the text of the proposed regulations state that the prohibition against limiting participation based on gender identity does not apply.
It is obvious that the Proposed Rule, as written, will disadvantage women and girls in sports, regardless of future rulemaking specific to athletics.
The Proposed Rule explicitly states that a “recipient’s education program or activity would also include all of its academic and other classes, extracurricular activities, athletics programs (emphasis added), and other aspects of the recipient’s education program or activity.”
The Department claimed to remain silent on the issue of sports, but they ignore the plain text of the Proposed Rule, which will quickly erode the integrity of athletics by requiring biological males who identify as transgender to compete on girls and women’s teams. By doing this, the Department is putting women at a disadvantage. Both the law and public opinion are clear; women and girls should be afforded equal opportunities to men and boys, and should not be forced to compete against males in athletics.
The effects of the Proposed Rule will eliminate women’s athletics by allowing individuals to compete based on definition-less gender identity. Despite 50 years of progress toward achieving equal opportunities for women and girls in education, this Proposed Rule will force women to sacrifice, by allowing men to take, athletic opportunities, team participation, trophies, awards, scholarships and more on the altar of progressive gender ideology.
For example, high school girl track athletes were disadvantaged in Connecticut after the state’s unfair, gender identity policies permitted two biological males to compete in, and subsequently win a combined fifteen girl’s track championship titles previously held by nine women. One of these participants set a first-place record for the girl’s track event. The males’ participating and success prevented the girls from advancing to regional meets, taking away an opportunity for the girls to compete in front of college scouts.
Men and women are biologically and physiologically different, which is why there are different men’s and women’s sports in the first place. It is self-evident and a scientific fact.
It is also important to note that it is not discriminatory to acknowledge the difference between men and women. Disregarding it would, in many instances, such as athletics and physical capability, subject women to unfair standards and limit their ability to fully participate in educational opportunities. The Department has an obligation to ensure that any policy it puts forward, including this Proposed Rule, does not discriminate against women. This Proposed Rule completely misses that mark.
3. The Proposed Rule should explicitly affirm the previous rule’s clarification on religious freedom.
Religious freedom is fundamental to society, including education. Since our nation’s founding, our laws have reiterated the importance of protecting, upholding and advancing religious freedom. In addition to both the Establishment and Free Exercise Clauses of the First Amendment, Congress has enacted laws such as the Religious Freedom Restoration Act to ensure that the government cannot substantially burden religious exercise without a compelling government interest.
Congress explicitly included language in Title IX to ensure that no part of the law would require religious institutions to forfeit their sincerely held religious beliefs in order to partner with the government or provide educational opportunities to students, regardless of whether the students share those religious beliefs.
The law states that Title IX “shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” As such, religious educational institutions are exempt from compliance with Title IX to the extent that compliance with Title IX is inconsistent with the religious tenets of the organization, even if the educational institution receives Federal financial assistance.
Unfortunately, under the Obama Administration, religious schools were unfairly targeted. Schools were publicly shamed for living out their faith. They were also required to seek permission from the government to be exempt from Title IX.
No law or policy should ever require religious organizations to seek permission from the government to live out their faith, nor should policies unjustly target or discriminate against schools based on religious status. The Proposed Rule should ensure that the integrity of the statutory exemption is upheld, and that the Department will not retaliate against schools that are exempt from Title IX by creating a public list, which will shame schools for living out the principles of their faith.
When the current rule was proposed and finalized, it rightly clarified that Title IX applies only to recipients of Federal financial assistance. It expressly exempted educational institutions controlled by religious organizations from compliance with Title IX to the extent that compliance with Title IX is inconsistent with the religious tenets of the religious organization even if the educational institution does receive Federal financial assistance. It ensured that instead of actively having to seek an exemption that bureaucrats at the Department of Education get to evaluate, institutions can simply claim an exemption. The statute does not require schools to ask permission to live out their faith, so neither did the existing rule.
It is notable that the Department does not address religious liberty in this rule, despite the fact that the “Religious Liberty and Free Inquiry Rule” is simultaneously pending with the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB). To the extent that the Department intends to propose changes in the Free Inquiry Rule that will impact the scope of which organizations qualify for religious exemptions under Title IX, the Free Inquiry Rule should be considered in conjunction with this Proposed Rule to ensure commenters and stakeholders have a fair opportunity to engage and comment.
Further, we strongly encourage the Department to expressly maintain all of the protections afforded to religious institutions by the underlying statute and made clear by the 2020 regulation.
4. The Proposed Rule neglects to explicitly include and apply the abortion neutrality language in Title IX.
In 1988, Congress amended Title IX to include abortion neutrality language to make clear that it does not confer a right to abortion. Congress clearly and deliberately, said that “Nothing in this chapter shall be construed to require … any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion.”
Not surprisingly, the Administration is using this Proposed Rule, based in a law from 1972, to promote its pro-abortion agenda in the wake of the repeal of Roe v. Wade.
We are concerned that the Proposed Rule’s definition of “discrimination on the basis of sex” includes “pregnancy or related conditions,” which is defined as “(1) Pregnancy, childbirth, termination of pregnancy, or lactation; (2) Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or (3) Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or their related medical conditions”). This definition disregards the abortion neutrality language and attempts to use Title IX to promote, and confer a right to, abortion. Notably, the Proposed Rule makes no mention of the existing, statutory abortion neutrality language. Further, the proposed rule expands the scope of pregnancy discrimination to apply to all education programs and activities, rather than just admissions.
While we agree that no woman should be punished or discriminated against on account of her pregnancy, it is concerning that the Department goes as far as redefining sex discrimination to include “termination of pregnancy,” essentially equating abortion to pregnancy and childbearing. As the Supreme Court recently affirmed in Dobbs v. Jackson Women’s Health Organization, there is no federal right to abortion. That includes Title IX.
The inclusion of this language in the proposed rule raises a number of unanswered questions, including whether educational institutions that refuse to provide access to abortion or abortion counseling will be deemed discriminatory. While we maintain that the Proposed Rule as a whole should be withdrawn, at a minimum, the Department must clearly define in the regulation that schools will not be compelled to promote abortion, and that speech, organizations, events and speakers that promote the sanctity of human life beginning at conception will not be considered to be in violation of Title IX.
Further, regarding curriculum pertaining to reproductive health and sex education in schools, the Department must clarify that schools are not directed to promote abortion, including abortion counselling or referrals.
While we oppose the inclusion of termination of pregnancy as part of the definition of sex, it is important to ensure that women are not prevented from equally participating in education programs or activities based on pregnancy, childbirth, or lactation.
We maintain that the proposed rule should be withdrawn, but affirm the inclusion of lactation in this context. Schools should be required to reasonably accommodate pregnant and lactating women in accordance with Title IX to ensure that no woman is ever forced to choose between maintaining a healthy pregnancy or her education. The Department should take all steps necessary to ensure that its policies promote life and that no woman is ever pressured or compelled to seek an abortion by her educational institution. Notably, such action would explicitly be discrimination based on sex, as childbearing, childbirth and lactation are inherent, biological capabilities of women.
5. The Proposed Rule purports to preempt state law.
Of additional concern due to the underlying policies, the Proposed Rule broadly defines any Program or activity under Title IX to mean all of the operations of (1) A department, agency, special purpose district, or other instrumentality of a State or local government; or (II) The entity of a State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government.
Further “recipient” is defined to mean, among other things, “any State or political subdivision thereof.”
Regardless, Title IX does not give the Department the authority to compel states to disregard their own laws related to protecting children from harmful gender ideology, ensuring equal opportunities for women, and upholding the sanctity of human life.
The Proposed Rule should make clear that no part of the regulation would preempt state laws that are contrary to the far-reaching and unsubstantiated attempts of the Proposed Rule to indoctrinate students.
The Proposed Rule should explicitly acknowledge that no schools, students, teachers, parents, or states would be subjected to unfair or discriminatory practices or actions by the Department on the basis that such individual or entity understands sex to be binary and based in biology, or upholds equality for women in sports by ensuring that biological males are not allowed to compete against women and girls in female athletics.
Similarly, the Proposed Rule should also ensure that those individuals and states that affirm protection of all life, including the lives of the unborn, do not face discrimination. The Department must make clear that Title IX does not preempt prolife state laws by encouraging and facilitating abortion tourism through enabling students to access abortion regardless of school policies, under the guise of Title IX protections.
6. The Proposed Rule will have a far-reaching, negative impact beyond education.
As drafted, the Proposed Rule will have ripple effects in other nondiscrimination laws written by Congress, including Section 1557 of the Affordable Care Act, Food and Nutrition Services and more. We have already seen the harms causes by such policies, including compelling doctors to perform harmful, irreversible and experimental gender alteration procedures on minors, and strong-arming schools into adopting progressive policies by tying such policies to school lunch programs. The broad, harmful, and lasting impact that this Proposed Rule would have on other agency programs is just one reason that the Department should withdraw it.
If the Department moves forward with the Proposed Rule, it must consider the impact in such areas and explicitly state that such regulation does not apply to these or any other area of law that is not clearly addressed in the Proposed Rule.
7. Conclusion
The Proposed Rule seeks to unilaterally expand the scope of the law contrary to the text of Title IX and Congressional intent. The proposal would harm women and girls, violate First Amendment free speech, religious freedom and parental rights, and promotes abortion. The Department of Education should promptly withdraw the rule and instead focus on upholding existing law and regulations consistent with our law.
Sincerely,