The other shoe has dropped on Title IX revisions.

The Biden administration announced in early April its much-anticipated guidelines for how schools must handle their transgender athletes. The proposed policy has been called a compromise, and some in the middle like it, but it has only further antagonized those who have dug their trenches on either side of the debate.

The announcement comes on the heels of the administration’s proposed changes last summer to campus sexual harassment rules as well as its controversial redefinition of “sex” to make it now include “sexual orientation” and “gender identity.” The guidelines on transgender athletes are likely to create more craters in the already pockmarked landscape of college life. (READ MORE: An Obstacle to the Left’s Defense of Affirmative Action: Race Is a Biological Myth)

The guidelines say that if schools want to receive federal funding, they cannot “categorically ban transgender students from participating on sports teams consistent with their gender identity.” However, under certain circumstances, they can restrict transgender participation in the interest of safety or fairness.

And who decides whether or not limiting participation is acceptable? The entity that made the rule in the first place: the Department of Education is the judge and jury of what is a permissible exception.

We’ll get to the chaos that this will unleash, but first, a recap of the damage caused by the guidelines released last summer.

More Chaos in Sexual Harassment Cases

The first shoe dropped left Godzilla-sized footprints as it stomped across the educational landscape. In June 2022, the administration announced new rule proposals for Title IX of the Education Amendments Act of 1972 that would roll back the commonsense advances of the Trump years and cloud the already murky waters of campus sexual harassment litigation. Former President Donald Trump reversed Obama administration harassment adjudication practices that denied due-process and free-speech rights to those accused of sexual harassment and returned many due-process rights to the accused, including hearings, legal representation, cross-examination, full access to evidence, and appeals.

The Biden administration’s proposed new rules would eliminate the live hearing and cross-examination requirements, leaving them to the discretion of the school, and readopt the “single investigator model,” which permits a lone bureaucrat to investigate a sexual harassment case and also serve as the judge and jury.

Also proposed is a lessening of the burden-of-proof requirements necessary for conviction of discrimination or abuse, from the “clear and convincing evidence” standard of the Trump policy to a “preponderance of the evidence” level — that is, a determination that the discrimination occurred “more likely than not.”

Out are the practical Trump policies, which held that schools needed to take action against egregious, over-the-top sexual misconduct — identifying and then punishing the “bad apples.” In are policies that broaden dramatically the definition of harassment. The problem, in the eyes of the administration, is not a few bad apples but rather a “rape culture” that reigns on college campuses.

Also surely in is an escalation of litigation. According to Palm Beach Freedom Institute president Paul du Quenoy, writing in Newsweek, during the Obama years, 73 percent of all Title IX–related lawsuits filed in federal court “included defamation claims against complainants.” “Many also brought claims against Title IX officials, who are often exposed as biased against male students,” he said.

Betsy DeVos, education secretary during the Trump years, related the tale of a Stanford University employee who was falsely accused of sexual assault by a jilted suitor intent on revenge. While affirming efforts to do “everything reasonably possible to protect students from assault,” DeVos sounded a warning note in the Wall Street Journal: “I heard way too many stories like this as we worked to issue a regulation under Title IX to protect due process. Action was necessary because weaponizing Title IX had become an unfortunate trend. The Obama administration’s infamous 2011 ‘Dear Colleague’ letter all but demanded campuses set up kangaroo courts that lacked fundamental due-process rights. The resulting failures were manifold.”

As we enter an era of Biden regulations, more of these “kangaroo” investigations are sure to run rampant, denying those accused of basic due-process rights.

‘Sex’ Now Includes ‘Sexual Orientation’ and ‘Gender Identity’

The other element to the new rules is the sexual orientation and transgender piece. The new regulations expand discrimination on the basis of what the original 1972 law called “sex” to include “sex stereotypes, sex-related characteristics [including intersex traits], pregnancy or related conditions, sexual orientation, and gender identity.”

These regs embody what conservatives have been fighting against for years: to receive federal funding, an educational institution, from K–12 up, has to open its bathrooms, locker rooms, housing accommodations, and any other sex-separated educational program to biological men claiming to be women, and vice versa.

While everything transgender related is a hot button, the steamiest of those buttons is the question of transgender participation in sports. The proposed guidelines handed down the first week in April punched that hot button exclusively.

According to the proposed rules, no school can throw a blanket ban on transgenders competing on teams according to the gender with which they identify, but schools will be allowed to block transgender athletes from competing in certain, very limited, circumstances.

A fact sheet distributed with the proposed guidelines states, “One-size-fits-all policies that categorically ban transgender students from participating in athletics consistent with their gender identity across all sports, age groups, and levels of competition would not satisfy the proposed regulation.”

The sheet went on:

[T]he Department expects that … elementary school students would generally be able to participate on school sports teams consistent with their gender identity…. For older students, especially at the high school and college level, the Department expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases, when they enable the school to achieve an important educational objective, such as fairness in competition, and meet the proposed regulation’s other requirements.

So, total bans are verboten, grade schools must allow transgender competitors, and dispensations from the baseline tolerance of transgender participation are laden with qualifications. According to the Education Department, the proposal takes into consideration “the importance of minimizing harms to students whose participation on teams consistent with their gender identity would be limited or denied.” Schools — mostly high schools and colleges — may be able to limit transgender participation as long as they can show that the proposed restrictions are “substantially related to the achievement of an important educational objective,” such as those “ensuring fairness in competition or preventing sports-related injury,” and are not “premised on the disapproval” of transgenderism.

These regulations tacitly endorse transgenderism while striking against the conservative fight for girls’ and women’s rights in competition.

Raising Bipartisan Hackles

Although called by some a compromise document, the competing sides don’t see it that way. For conservatives, the proposal is an obvious sop thrown to the transgender lobby. Nicole Neily, president of Parents Defending Education, accused the Biden administration of “trying to have their cake and eat it too: inject gender identity into athletics while placing the onus upon school districts to determine whether doing so would be problematic or not.” She said that institutions, “fear[ing] the wrath” of the education bureaucrats, would “[w]ithout a doubt … err on the side of ‘inclusion.’”

Conservative politicians were quick to chime in: Speaker of the House Kevin McCarthy called the proposed rule “anti-women.” US senator Marsha Blackburn (R-TN) tweeted, “For a party that claims to care about women, the left sure is intent on depriving them of the opportunity to fairly compete.” US representatives Virginia Foxx (R-NC) and Mary Miller (R-IL) wrote, “The people who stand to lose the most from this troubling measure are women and girls.”

Meanwhile, the trans lobby descended into full outrage mode at the idea that future Lia Thomases might be prohibited from mopping up in women’s swim meets, or biological male sprinters from beating girls at Connecticut high school girls’ track meets.

Erin Reed, a prominent trans activist and researcher, tweeted: “I can’t read this any other way than a betrayal. This entire document is worse than doing nothing.” Imara Jones, a self-identified “trans woman” who created The Anti-Trans Hate Machine: A Plot Against Equality podcast, said: “The Biden Administration framed their proposal as a ban on blanket discrimination against trans athletes. But actually, it provides guidelines for how schools and universities can ban trans athletes legally.” Representative Alexandria Ocasio-Cortez (D-NY) tweeted that the plan was “indefensible and embarrassing.” Sean Ebony Coleman, a trans activist in New York, said that “[w]hile it hypothetically prevents across-the-board bans, it offers enough gray area for discrete gender policing and demonization to occur, specifically on a local level.”

The Title IX guidelines will clearly butt up against laws passed in about twenty states prohibiting biological males from competing in women’s sports. Some governors have doubled down in the wake of the announcement. Kristi Noem, governor of South Dakota — which has passed one of the strongest laws supporting women’s sports — threatened legal action against the administration. She tweeted: “South Dakota will not allow this to stand. We will lead. We will defend our laws. Only girls will play girls’ sports. President Biden, we’ll see you in Court.”

This issue will no doubt find its way to the Supreme Court. Indeed, when given a chance in April, SCOTUS decided not to review a West Virginia law forbidding transgender men from competing in women’s sports that had been blocked by the Fourth Circuit after being challenged by the American Civil Liberties Union.

This was the first transgender-athlete case to make it to the high bench, but it surely won’t be the last. Justice Samuel Alito, in dissenting from the decision to deny cert, wrote: “This application concerns an important issue that this Court is likely to be required to address in the near future, namely, whether either Title IX … or the Fourteenth Amendment’s Equal Protection Clause prohibits a State from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”

The proposed sports rules will now undergo a thirty-day comment period; meanwhile, the portion of the Title IX overhaul dealing with sexual harassment is expected to be finalized in May.

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