Decades from now, when scholars are debating how the executive branch jumped the rails of any legislative accountability or rational rules, the new Biden administration Title IX edict should be the prime exhibit.
It is a sweeping expansion of regulatory power, not in the service of the original goal of the underlying statute, but in opposition to it.
This is brazen even for the Biden administration of the student loan forgiveness program and the rent moratorium.
The new draft rule forbids blanket bans on transgender athletes competing in sports against athletes of their adopted gender, but allows, in theory, more narrowly tailored prohibitions. This is being portrayed as a moderate, compromise approach to the issue. It is nothing of the sort. The more fundamental issue, though, is that it lacks any foundation in the law.
Congress passed Title IX ensuring equal access “on the basis of sex” and President Richard Nixon signed it into law in 1972. The idea that Nixon and leaders in Congress — the likes of Tip O’Neill and Hale Boggs, Mike Mansfield and Robert Byrd — considered sex the same as gender identity is too ridiculous for words.
No one began seriously conflating the two until recently. If justice demands that Title IX encompass gender identity, then the solution is very simple — Congress should amend the statute.
The Biden administration last year redefined the law, without any warrant, so that “sex” includes “stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” And now there’s going to be an entire new regulatory regime devoted to ensuring the participation of trans athletes in sports meets the Biden administration’s standards.
Congress passes a law protecting and encouraging women’s sports, and lo and behold, 50 years later the law is being used to ensure as many males as possible are competing against females. Here the road to hell isn’t even paved with good intentions, but bad faith interpretations of the law imposed by people who know they can’t win democratic assent for their cultural agenda.
The order tilts all one way. As a Department of Education fact sheet says, “the Department expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases.”
A school’s rule will not pass muster, according to the department, if it “chooses not to minimize the harm” to transgender athletes.
Given where the Biden administration is coming from on this issue, and the complexity involved, schools are going to default toward allowing males athletes to compete against women.
The draft rule is an affront to Congress, an affront to federalism (it clearly targets the roughly 20 states that have bans on males competing against females), and an affront to girls and women who simply want to compete against one another when they play sports.
The executive branch is now more beholden to “woke” imperatives than the U.S. constitutional system.
Rich Lowry is editor in chief of the National Review