Republicans on the House Education and Workforce Committee missed the opportunity to grill Education Secretary Miguel Cardona on his department’s Title IX overhaul, largely focusing on sports instead of the redefinition of sex contained in the administration’s rule change.
Committee Republicans questioned Cardona on a plethora of different controversies from the Education Department on Tuesday, including Title IX, but they used their time on that front asking about biological males competing in female sports despite the fact that the rules specifically governing sports have not yet been finalized.
In mid-April, the Biden administration finalized rules governing sex discrimination and harassment claims under the federal civil rights statute.
The rewrite includes claimed gender identities in the definition of “sex” for purposes of discrimination, which critics say will effectively ban all private, sex-specific spaces such as restrooms, forcing schools to allow males to use the same facilities as females at the risk of losing federal education dollars when the rule goes into effect on Aug. 1. The new rule also forces the use of preferred pronouns and opens the door to civil rights investigations for people who refer only to biological sex.
The Biden administration also significantly altered the Trump-era due process protections for students accused of sexual misconduct on college campuses.
Despite that, some Republicans chose to use their time during the congressional hearing on Tuesday to focus on sports, allowing Cardona to avoid answering by responding, correctly, that those rules had not yet been finalized.
“Would you force your daughter to undress in the bathroom with boys who are also undressing?” Rep. Burgess Owens (R-UT) asked within the context of sports. Cardona replied, “I am not going to be commenting on athletics rules that we haven’t proposed.”
Owens further pressed for a “yes or no” answer, but Cardona refused because his department has not finalized athletics rules. Cardona said he would be willing to talk about the Title IX rules that have been finalized.
“If your daughter was reporting she felt uncomfortable in a boy’s presence in a bathroom or a locker room, would that be considered by your administration to be discrimination or bigotry?” Owens asked. Cardona again refused to respond with a “yes or no.”
Owens once more asked about sports, saying: “Girls have now entered into contact sports like boxing and wrestling. Would you allow your daughter to physically fight and get beat up by a boy who called himself a girl? Yes or no.”
“I’d be happy to [answer], once we finalize our regulations on Title IX athletics, to have a conversation with you,” Cardona said.
The issue of transgender participation in sports was deliberately left out of the rule published last month, and sports rules are not likely to be finalized until after the 2024 election. Nevertheless, many expect those rules to be written along the same gender ideology lines as the harassment and discrimination portion of Title IX, which would make it a civil rights concern to allow biological men to compete against women.
Other Republicans asked about sports during Cardona’s congressional appearance as well.
In her questioning portion, Rep. Carol Miller (R-WV) was told multiple times by Cardona that the rulemaking regarding athletes was not yet finalized as she pressed him about female athletes losing podium positions to males and groups of girls in several states who have been kicked off their teams for refusing to compete against boys.
Miller did, however, strike upon two significant issues with the newly finalized rule, raising a scenario in which a health class teacher says that men cannot become pregnant and asking about the definition of gender identity.
“Mr. Secretary, in health education class, if a teacher says that men cannot become pregnant, and then a student goes to the Title IX coordinator and says he’s uncomfortable that the health teacher insists men can’t get pregnant, what should the Title IX coordinator say?” she asked.
Cardona said he would refer that question to the Office for Civil Rights and that the agency would offer Miller’s constituents “technical assistance” in that case.
The exchange brought to light one of the primary concerns critics have with the new Title IX, which they say would force adherence to gender ideology in the classroom.
“You are recognizing biological sex, but in athletics, you are wiping out biological sex and going with gender identity, so I want to know: Gender identity is not defined in your rule. Can you give me the official definition of gender identity?” Miller asked.
While Cardona said that Miller was “inaccurate” because the athletics rules have not been finalized, “gender identity” is not defined in the finalized Title IX rule either.
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Miller touched on the fact that the new rules do not define what “gender identity” means, an ambiguity that critics have said opens the door not just to claims of transgender identity but an unending list of claimed identities, such as “demigender,” “gender apathetic,” or “omnigender.”
Cardona refused to answer when asked by Rep. Andy Harris (R-MD) rather directly, “Would you agree that women are physically different from men?”