Biological sex laws protect women’s privacy, teams and safety

The Title IX fight shows how federal rules can put girls’ privacy, women’s sports and parents’ say over school policy in agency hands.

The law has to recognize biological sex, or women and girls lose the privacy, the teams and the safety that sex-based rules were written to guarantee.

Independent Women asked on October 30: “When did defining “woman” become controversial?” The group's post says the debate over biological sex, from Title IX to women's prisons, is about the laws that protect women and not only about words¹.

Inez Feltscher Stepman, in Independent Women's “Redefining sex under law,” argues that the law has long relied on the distinction between the sexes². Her examples run from elementary-school bathrooms to same-sex airport pat-downs, the places where a woman's privacy is most exposed.

The doctrine

Title IX was enacted on June 23, 1972, and bars exclusion, denial of benefits or discrimination on the basis of sex in federally funded education programs³.

The rules built on that word assumed two sexes from the start. The 1975 Title IX regulations let schools provide separate toilets, locker rooms and showers on the basis of sex, so long as the facilities are comparable, and they required equal athletic opportunity for members of both sexes³.

Title VII, the employment law, took a different path. On June 15, 2020, the Supreme Court held in Bostock v. Clayton County that firing someone for being homosexual or transgender violates Title VII. Seven months later, a January 8, 2021 Education Department memorandum drew the line: Bostock did not construe Title IX, and Title IX allows intimate facilities and activities separated by biological sex³.

The phrase that bars discrimination is the same phrase that permits separation³. Title IX's ban on discrimination "on the basis of sex" and the 1975 rule allowing separate facilities "on the basis of sex" rest on one word, and the second only works if sex means something fixed. Inez Feltscher Stepman of American Principles Project writes in Independent Women that the country relies on "that understanding of our anti-discrimination laws" in everyday life². Families need that rule written plainly, because a word left open becomes whatever the next agency says it is.

The record

Legislation that expressly names gender identity went to Congress, while the Title IX fight went to the courts. Rep. Mark Takano introduced H.R. 15, the Equality Act, on June 21, 2023, with a long list of Democratic cosponsors⁴.

The courts met the administration's Title IX rule with injunctions. The Western District of Louisiana enjoined the rule on June 13, 2024, and the Eastern District of Kentucky followed on June 17. The District of Kansas then joined them and granted a preliminary injunction before the rule's August 1, 2024 start date³.

The plaintiffs in Kansas were the states of Kansas, Alaska, Utah and Wyoming, a minor identified as K.R., Moms for Liberty, Young America's Foundation and Female Athletes United. The department's June 22, 2021 Title IX interpretation was already enjoined in several states, including Alaska and Kansas³. States and parents, not agency lawyers, held the line for girls.

The plaintiffs filed their complaint on May 14, 2024, moved for a preliminary injunction and a stay under 5 U.S.C. § 705 on May 24, and argued the motion on June 20. The Attorney General of New Jersey filed an amici brief for several non-party states urging the court to deny relief, and the court granted it anyway³. That relief protects the plaintiff states; a statute that defines sex would protect every school, which is why this fight belongs in Congress.

The capture

The rule those courts stopped began with an order from the top, after the Biden administration took the opposite view from the department's own January 2021 memorandum. On March 8, 2021, President Biden issued Executive Order 14,021, directing the Education Secretary to review existing rules and policies for consistency with freedom from discrimination on the basis of sex, sexual orientation or gender identity³.

The department published its proposed regulations on July 12, 2022, drew more than 240,000 comments, and issued the Final Rule on April 29, 2024. The rule counts gender identity inside sex discrimination. It relies on Bostock for authority even as the department acknowledges the Supreme Court limited that decision to Title VII³.

The rule defines “more than de minimis harm” as a policy or practice that prevents a person from participating in an education program or activity consistent with that person’s gender identity, and it bars schools from causing that harm when separating students by sex. The department says that provision applies to bathrooms and shower facilities. Yet the department never defined gender identity, deciding no definition was necessary³. If the rule never says what gender identity is, how is a school to know whose access it is ordered to protect?

K.R., an Oklahoma middle schooler, told the court she had encountered biological males in her school's girls' restroom, felt unsafe, and refused to use it for a period. She attested that on some occasions those boys did not identify as female and used the girls' room because they knew they could get away with it³.

Moms for Liberty members in Virginia, Pennsylvania, New York and California told the court they fear school discipline for expressing statements related to gender identity. The plaintiff states say the rule conflicts with their laws on separate restrooms and on keeping males out of girls' sports, and that noncompliance with Title IX may cost them federal funding³.

The path back

The way back is already working where lawmakers wrote biological sex into statute. Female Athletes United, formed to defend girls' sports, has minor members who play in Kansas, Wyoming and Utah and do not compete against males because of state laws³.

Every state that has not yet written restroom and girls' sports protections into law should do it, and Congress should define sex in Title IX. Parents should ask every candidate on their ballot one question: will you put biological sex into law? A daughter's locker room, her team and her safety turn on whether the law keeps recognizing biological sex.

Biological sex laws protect women’s privacy, teams and safety

The doctrine

The record

The capture

The path back

Sources