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The Warping of Title IX: How Title IX has been Weaponized, Contrary to its Intended Purpose, Since its Passing 50 Years Ago

In The NewsTitle IX By Binnall Law Group - 2022/06/27 at 10:58am

By: Ben North and Eamon McCarthy Earls

This week marks the 50th anniversary of Title IX of the Education Amendments of 1972. Enacted as a follow up to the 1964 Civil Rights Act, Title IX was intended to prevent sex discrimination in federally funded education programs. Senator Birch Bayh, one of the primary proponents of the bill, said that Title IX was intended to “close [a] loophole” left by the Civil Rights Act. 

Title IX is well known for its huge impact on sports, requiring high schools, colleges, and universities to invest in women’s sports teams and support women athletes – a worthy goal. When Title IX was passed, women’s sports teams received only a modest two percent of high school and college athletic budgets. Title IX resulted in a surge of support for women’s sports, allowing women to participate in the benefits of physical fitness, competition, and being part of a team like never before. Today, nearly 56 percent of college students are women; in high school, women comprise 42 percent of athletes.

Fifty years later, the Biden Administration would rather gut Title IX through radical reinterpretations to achieve the Administration’s social goals. In that process, it threatens to destroy women’s sports altogether by giving an unfair biological advantage to some athletes over others instead of creating an equal playing field as it was originally intended.

Allowing biological males to compete in women’s sports threatens to eliminate women’s sports as well as the privacy of female athletes. “Males enjoy physical performance advantages over females within competitive sport. . . the performance gap between males and females becomes significant at puberty and often amounts to 10–50% depending on sport,” observed the authors of a recent paper in Sports Medicine. Allowing biological males to compete for medals and scholarships on women’s teams before or after “transitioning” disadvantages women athletes.  

The Administration has reinterpreted Title IX to include sexual orientation and gender identity, which places women back on the sidelines both in sports as well as on campus. President Biden signed Executive Order 13988 in January 2021, during the first days of his presidency. The E.O. began the process of reinterpreting Title IX to allow biological male athletes to compete in women’s sports if they identify as transgender. The Department of Education issued a Notice of Interpretation on June 22, 2021 that it would interpret “sex” to include both gender identity and sexual orientation. 

The reinterpretation reaches broadly, according to Heritage Foundation researcher Sarah Perry. “As a result, any K–12 school or institution of higher education that receives federal funding would have to open its bathrooms, locker rooms, housing accommodations, sports teams, and any other sex-separated educational program or offering to the opposite sex, if those individuals simply claim to be female. Such a dangerous rule sacrifices the safety, privacy, and equality of girls and women to appease a pet policy agenda [and] ignores the extensive congressional record on Title IX’s purpose. . .”  

On June 23, 2022, the Biden Administration went even further. The Department of Education put out a notice of proposed rulemaking for major changes to Title IX interpretation. Reason senior editor Robby Soave took a deep dive of the proposed regulations.  He found that the new regulations create a low bar for sexual harassment, potentially encompassing subjectively offensive things said in class. Worst of all, regulators propose bringing back “single investigator” model, will no longer provide those accused with a hearing or the opportunity to cross-examine accusers, and give no guarantee that either accusers or accused will have access to evidence. Eliminating due process deprives accusers and accused of essential rights, and the inability to cross-examine strips away “greatest legal engine ever invented for the discovery of truth.” 

In addition to depriving students of due process rights if they are accused of wrongdoing, the proposed rules also include “[schools may not prevent a person from participating in an] activity consistent with their gender identity” – doubling down on the Administration’s prior transgender agenda.  

This is not the first time Title IX has been weaponized to serve socio-political goals. Over the years, federal courts and federal agencies have changed the original purpose of Title IX (preventing sex discrimination in publicly funded schools). Throughout the 1980s and 1990s, courts began to recognize sexual harassment as a form of sex discrimination in education. 

The U.S. Supreme Court clarified the state of the law in the late 1990s. In Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998), the Court held that faculty-on-student sexual harassment was actionable by a private right of action if the school had actual notice of the harassment and was deliberately indifferent to it. 

Soon thereafter, it decided Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), which established the same standards for student-on-student sexual harassment and added that a private right of action only applies to “harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Although the Supreme Court created a high bar for plaintiffs, it provided a way for victims of sexual harassment to seek redress on a case-by-case basis in court. 

The meaning of Title IX changed again in the early 2010s, with Dear Colleague Letters from the Obama Administration that prompted colleges and universities to launch grueling, biased investigations of students and faculty accused of Title IX sexual misconduct violations. The Department of Education’s Office of Civil Rights effectively divorced new enforcement measures from the cases decided by the Supreme Court, based on flawed statistics and effectively eliminated due process rights for accused students. A study found a huge increase in lawsuits against universities in the early 2010s by students bringing claims of wrongful accusations. 

Until the rules were modified in 2020, those accused on campus had little to no due process—and not even the guarantee of a hearing or cross-examination. It was often a case of “guilty until proven innocent.” The 2020 Regulations, however, required a presumption that the accused is not responsible until responsibility is proven with evidence. Now, it appears the old regime is returning, which will have far-reaching, real-world consequences for students, professors, and administrators around the country.

Dramatically changing the meaning of Title IX, threatens to cancel women’s sports programs and undermine student and faculty due process. It also frustrates Congress’s intention when Title IX was enacted 50 years ago. Title IX, as it was originally conceived, was about equality. New interpretations turn that assumption on its head. Whether it be by supporting women over men in cases of sexual misconduct or putting the rights of transgender athletes over biological female athletes, the result is the same – giving one side an unfair and unequal advantage over the other – a complete 180 degree change from the statute’s intended purpose. 

No matter what happens with Title IX as it enters its fifth decade, the attorneys at Binnall Law Group will use their expertise in this area of law to vindicate the rights of those impacted.