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Gender identity athletics rule 'literally impossible' to follow, encourages sex changes: critics

Second Department of Education rulemaking on gender identity draws 130,000 comments, with some citing threat to free speech, religion. Feds drastically understate compliance costs, critics say.

Published: May 15, 2023 11:45pm

Updated: February 21, 2024 1:52pm

The Biden administration's proposal to ban schools from "categorically" excluding males from female sports teams would not only dissuade girls from athletic competition but inevitably spur more children to start puberty blockers and socially transition to a new gender identity, according to radical feminists who oppose gender ideology.

The Women's Liberation Front (WoLF) joined right-of-center organizations in urging supporters to file comments supporting the preservation of female-only competition in the Department of Education's Title IX notice of proposed rulemaking on "sex-related eligibility criteria." More than 130,000 comments had been filed as of Monday afternoon, the last day to submit.

Under the NPRM, schools would have to convince the feds their sex-based restrictions on competition are "substantially related to the achievement of an important educational objective" or "minimize harms" to students who want to compete as the opposite sex. Concerns that bigger, stronger males could hurt females can be addressed by "protective equipment," for example.

The proposal is separate from an earlier rulemaking that would redefine "sex" in Title IX to include gender identity, whose public comment period ended last fall but has not been finalized, creating greater uncertainty over the impact of the athletics proposal.

(Title IX prohibits sex-based discrimination in federally funded education programs and activities.)

The newer NPRM somewhat nods toward the "middle way" advocated by transgender runner Joanna Harper in an essay last summer.

"Gender-affirming hormone therapy" cannot fully eliminate advantages of biological males such as Harper, who said reducing testosterone to "female-typical levels should be a necessary, although not always sufficient," requirement for trans women. Harper cites roughly the same "performance gap" between men and women as that in North Carolina Superintendent of Public Instruction Catherine Truitt's public comment.

According to a Federalist Society analysis, the new proposal "provides a large incentive to adopt a blanket policy" of participation by gender identity and underestimates how costly compliance would be for schools, in initial evaluation of current policies and "regular trainings" on compliant policies.

A group of 25 organizations including Parents Defending Education and Moms for Liberty mocked the $24.4 million, 10-year cost estimate in the NPRM. Virginia's Loudoun County Public Schools has estimated retrofitting just two high schools to accommodate transgender students while protecting female privacy would cost $11 million, their comment notes.

Every Republican governor except Vermont's Phil Scott told the department Friday that its "wholesale reinvention of Title IX’s terms" would not only invert the civil rights law but "attempt to coerce compliance with an uncertain, fluid, and completely subjective standard that is based on a highly politicized gender ideology."

The NPRM would require an "athlete-by-athlete analysis" based on internal and possibly transient identities, "enforced under threat of Department retribution," the group of 25 led by Mississippi's Tate Reeves wrote.

"This administration apparently sees no irony that its policies validate an average male athlete stealing the recognition from a truly remarkable female athlete" whose success is predicated on the commonsense reading of Title IX, the governors said. 

Seventeen Republican attorneys general led by Indiana's Todd Rokita sent a letter the same day that specifically invokes University of Pennsylvania transgender swimmer Lia Thomas, known for mediocre placement in men's competition before surging to the top of women's competition. 

Thomas "stands athwart biology — aiming for Olympic glory as a self-declared woman" while slowing just 0.22 seconds in the 100-meter freestyle after going through testosterone suppression intended to put the swimmer on a level playing field with women, they said.

Because the feds frown on sex-related eligibility criteria when girls are starting puberty and "very self-conscious" about their bodies, females would likely opt out of sports rather than participate and share locker rooms with males, WoLF said, leaving fewer girls who "go on to participate in higher levels of competition."

The proposal "dangerously encourages" boys to start puberty blockers "as early as possible" by making the "false oversimplification" that early hormonal intervention preempts "any potential advantages" from increased testosterone, the gender-critical group said.

Compliance with Title IX would become "literally impossible" under the NPRM, according to the American Civil Rights Project and Manhattan Institute, reiterating criticisms of the earlier proposal for misreading the Supreme Court's Bostock ruling on gender identity in employment.

The feds' prediction that gender-confused males will not "substantially displace" females on women's teams flies in the face of growing evidence of "social influences" driving an explosion of transgender and nonbinary "tweens and teens," the groups wrote.

The Alliance Defending Freedom filed one of the more comprehensive comments at 44 pages and 172 cited legal precedents and filings

Congress has repeatedly affirmed the purpose of Title IX to create "meaningful participation opportunities that were historically lacking for women and girls," and regulatory provisions "often require" schools to field teams reserved for them, the public interest law firm wrote, calling the NPRM "illegal."

The proposal also has detrimental implications for First Amendment rights, "weaponiz[ing] Title IX to force people to deny truth in athletics," the alliance said, noting a school district punished a coach and his daughter for referring to a gender-confused male student as a "dude" and using male pronouns. 

It's especially dangerous when connected to the administration's "hands-free, no-rules adjudication of Title IX complaints," which "threatens to bring Star Chamber procedures" on Americans who recognize biological realities in sports, the comment says.

"The proposed rule disproportionately burdens religious schools … who cannot permit males to play with, or compete against, females" and are "religiously motivated to protect equal opportunity for women in athletics," the First Liberty Institute wrote on behalf of Houston Christian University.

Because a change in regulation will likely lead schools, states and athletic associations to open student eligibility by gender identity, "religious schools who have always maintained successful athletic programs will be forced to pit their women’s teams against teams composed of males and females" or give up competition altogether, the comment says. 

The NPRM will harm far more than conservative Christian institutions, First Liberty claims, citing statements from Baha'i, Buddhism, Confucianism, Daoism, Falun Gong, Sunni and Shia Islam and Sikhism that recognize sex as "an objective, binary category that cannot be changed by self-perception or medical intervention."

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