Swim team for 'cluttergender' students? Biden told Title IX proposal creates 'absurd' results

From the feminist Women's Liberation Front to the conservative Child & Parental Rights Campaign and Parents Defending Education, groups opposing the Biden administration's proposal to redefine sex as "gender identity" are urging supporters to file comments in the Title IX regulatory proceeding before it closes Monday.

An 18-month-old nonprofit unexpectedly joined their ranks last week: the Foundation Against Intolerance and Racism (FAIR), cofounded by black intellectuals including Columbia University's John McWhorter and Brown University's Glenn Loury, which fights identity politics in education and government and has focused mainly on race.

FAIR urged the Department of Education to refrain from decisions "better left to institutions or through the democratic process" in a Sept. 6 public comment, saying the feds' proposal "would dramatically alter the nature of Title IX" by requiring schools to "multiply or refashion all of their sex-segregated facilities, to a degree that is cost-prohibitive and unmanageable."

The foundation is also challenging the administration's proposal to lower the bar for discrimination investigations and remove due process protections accorded to accused students in sexual misconduct proceedings under its predecessor's Title IX rulemaking two years ago.

Polling suggests the American public supports protecting transgender people from "arbitrary discrimination" while "maintaining female-only spaces in certain sports, changing rooms, and locker rooms" based on "real physical differences between the sexes," the comment says.

FAIR, whose legal network sometimes sends legal warning letters, disputed the administration's reliance on the Supreme Court's Bostock decision, which "had nothing to do with sex-segregated facilities" but rather protecting a man who lived as a woman from firing under Title VII.

It accused the Department of Education of changing the 2020 precedent to fit its own preferences. The feds argue that "treating individuals in accordance with their biological sex is always impermissible sex-based discrimination" unless it imposes "de minimis harm" — language not found in Bostock or Title IX, FAIR says.

Under the proposed regulation, educational institutions are tasked with accommodating not only males and females who identify as the opposite sex but also "[h]undreds of other" gender identities, including "adeptogender, clowncoric, cluttergender, genderfaun, nanogender, rosboy, quoigender, ultigender, and wistrafluid," FAIR says, citing the Gender Wiki.

With theoretically "infinite" genders, schools would need to maintain "an endless number of facilities and activities" and could not meet the "de minimis harm" standard if, for example, they didn't have a swim team and locker room for cluttergender students.

There are also "absurd unintended consequences" from the proposal, which would override existing regulations that let schools ban women from men's contact sports to protect their physical safety and schools from legal liability. "[A] natal female who identifies as a transman must be allowed to try out for the men's rugby team, while a natal female who identifies as a woman can be excluded from that same team" even if they are "physically identical in all relevant respects."

The proposed "blanket and unnuanced" regulation would steamroll schools that let males play in girls' sports "only if they supply proof of medical transition" or try out "only for non-competitive female teams" or those that "create all-gender teams for sports where safety and fairness are of less concern," FAIR said. It's better to let schools and states design "tailored solutions" for themselves.

Rather than put forth a different interpretation of another Supreme Court precedent on sex-based harassment in schools, the proposed regulation simply claims it's not applicable to sexual misconduct proceedings.

The Trump Title IX regulation incorporated the three-part Davis standard of "severe, pervasive, and objectively offensive" harassment that denies an equal education, but Biden's proposal junks the third element and makes the first two either-or while adding gender identity.

"The Department must acknowledge the upside-down power imbalance" it would create by applying the higher Davis standard to lawsuits for monetary damages against universities, but the either-or standard to administrative proceedings against students and employees that may end in expulsion or firing.

"There is no legal or moral basis for holding individuals with substantially more to lose to a less favorable standard" than their universities, whose fiscal-year 2021 median endowment was $200 million and average was $1.1 billion, FAIR says.

The proposal runs headlong into the First Amendment by potentially deeming refusal to use preferred pronouns sex-based harassment, as well as unconstitutionally preempting "state laws extending free speech rights to students at private schools," such as California's so-called Leonard Law.

School employees would be required to report sex discrimination based on no more than "vague suspicions" under the proposal, rather than any form of probable cause, the comment says. 

Because the threshold is conduct that "may" violate Title IX, a teacher who sees a female "frown and walk away" from a male but doesn't hear the conversation would have to report it, FAIR says. "To safeguard their jobs, employees will err on the side of over-reporting ... Title IX coordinators will be inundated with reports and individuals will be unnecessarily tarnished with the stigma of being the subject of a Title IX report."