The Biden administration is in no hurry to finalize its proposed regulations extending Title IX protections to transgender students, including athletes, an issue that may be too hot for the White House to handle as the 2024 election nears.
After pushing back the release date from May to October, the Education Department is now poised to blow past Halloween without unveiling its Title IX rulemakings. The department also isn’t making any further predictions on timing.
“The notice of proposed rulemaking for the upcoming regulations on Title IX of the Education Amendments of 1972 received a historic number of comments, and the Department is working overtime to ensure that each one is thoroughly read and carefully considered,” an Education Department spokesperson told The Washington Times.
“We are utilizing every resource at our disposal to complete this rulemaking process as soon as is practicable,” said the statement.
That said, the lengthy delay has drawn attention to the political hazards of reworking Title IX, given President Biden’s shaky approval ratings and multiple polls showing most Americans don’t want male-born athletes who identify as female competing in female sports.
Paul Dupont, spokesperson for the conservative American Principles Project, said the administration is “in deep trouble on this, and they know it.”
“Although the administration claims the delays are procedural, it’s obvious they are stuck between a rock and a hard place,” said Mr. Dupont. “On the one hand, the left-wing activist base will keep the pressure on until they declare Title IX protects male athletes who identify as female. And on the other hand, the administration knows this policy would be massively unpopular with voters.”
At issue are two rules. The first Notice of Proposed Rulemaking would replace former Education Secretary Betsy DeVos’s overhaul of rules expanding due process in campus sexual-harassment cases with standards that weigh the balance back in favor of the accuser.
In addition, the rule would “help protect LGBTQI+ students from discrimination” by redefining Title IX’s ban on sex discrimination to include sexual orientation and gender identity—but specifically excluded the issue of transgender eligibility in scholastic sports.
Released in June 2022, the proposal drew more than 240,000 responses, about twice as many as the Trump administration’s 2020 Title IX rulemaking.
Nearly two years later, the department issued a second proposed rulemaking forbidding schools from imposing blanket bans on transgender athletes. Schools would have to justify single-sex exceptions on a sport-by-sport basis while ensuring efforts would be made to “minimize harms” to transgender students.
The proposed changes, released in April, drew more than 150,000 comments. Those raising objections included Cornell Law School professor William Jacobson, who said the hurdles involved in keeping single-sex sports would result in transgender participation becoming the default.
“As a result, there can be no doubt that schools across the land will integrate transgender students into sports teams consisting of members of the opposite birth sex, so as not to run afoul of the proposed rule,” said Mr. Jacobson, president of the Legal Insurrection Foundation, in his May 15 comments.
Conservatives may abhor the athletics proposal, but Democrats and LGBTQ activists aren’t wild about it, either. Some argued that the changes create an avenue for schools to discriminate against transgender athletes, while others framed it as a promising starting point.
“Trans kids are kids. They deserve the right to figure out who they are and play sports in peace,” Rep. Sara Jacobs, California Democrat, tweeted in April. “While I’m glad this rule prevents an all-out ban on trans athletes, it leaves way too many loopholes. There’s still time to make this right.”
Most of the pressure on the left is coming from groups like Advocates for Youth that have focused on the section dealing with sexual assault and harassment on campus.
The organization launched a letter-writing campaign entitled: “Joe Biden: Keep Your Promise! Fix Title IX by October.”
“The current, anti-survivor rules have had devastating impacts on students seeking support and resources after facing discrimination and violence – and students will continue to be harmed by the Trump administration’s Title IX rules until the Biden administration intervenes,” said a petition filed by Know Your IX.
The department plans to release the two final rules simultaneously, but as of Tuesday neither proposed rulemaking had been received by the Office of Management and Budget, which must review the finished product.
“That review, which can take up to 90 days, includes meeting with stakeholders and other affected parties,” said Inside HigherEd, which flagged the latest delay. “Rules typically take effect 60 to 90 days after they are issued; colleges and universities have asked for at least eight months to implement the changes.”
The longer the delay, the less likely the new regulations will be ready in time for the 2024-25 academic year—which wouldn’t necessarily be a bad thing for Mr. Biden.
Jennifer Braceras, Independent Women’s Legal Center director, described the holdup as a win-win for the White House, saying that many schools are already enforcing the administration’s interpretation of Title IX even before the new rules are published and gain the force of law.
“The administration is perfectly happy to let school officials operate under the false assumption they have to comply with these proposals while simultaneously avoiding lawsuits to block enforcement,” she said.
Publishing the rules is both politically and legally risky. Not only would it hand talking points to Republican candidates ahead of an election, but 23 red states have passed laws that base athletic eligibility on sex at birth, not gender identity, setting up an inevitable legal challenge.
But the Biden administration can’t be sued over the rules before they’re published.
“I’m sure some lawyer at the Department of Education is advising the secretary, ‘Sit on it. Sit on it as long as you can,’” Ms. Braceras said. “Heck, I’m quite certain the department would delay until after the 2024 election if they could.”
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.