DOE’s Proposed Title IX Rules Redefine “Sex”

By Joseph Brennan*

     On June 23, 2022, the Department of Education issued proposed rules changes to its Title IX regulations.[1] In addition to altering the reporting and investigation process related to sexual harassment under Title IX, the new rules expand Title IX protections from discrimination based on “sex”, rooted in the distinction between male and female, to also include sexual orientation and gender identity.[2] This approach would, among other deleterious effects, require “any K–12 school or institution of higher education that receives federal funding to open its bathrooms, locker rooms, housing accommodations, sports teams, and any other sex-separated educational program or offering to the opposite sex, if those individuals simply claim to be female.”[3] Additionally,  “The rule change also adds sections redefining sexual harassment to include “sex-based harassment.” This means that, for instance, using the “wrong” personal pronouns for a person identifying as the opposite sex could be considered sexual harassment.”[4]

     The new rules proposed by the Biden Administration seek to dismantle our nation’s traditional recognition that differences between male and female are fundamental to human nature and humanity’s relationship to God.  People of the Abrahamic faiths recognize that differences in sex reflect God’s nature and that this difference is inherent to our status as being made in the image of God: “So God created mankind in his own image, in the image of God he created them; male and female he created them.” Genesis 1:27. This “Imago Dei” is the source of the inherent worth and dignity of all persons, and this value does not derive from our subjective definitions of ourselves. Redefining discrimination based on “sex” in Title IX to also include protections for gender identity thus erodes the God given categories of male and female and diminishes both our knowledge of ourselves and our creator.

     Moreover, attempts to apply these rules to religious schools could conflict with Title IX’s religious accommodation provision, which provides protection to religious schools from having to abandon their religious conscience in these matters. This accommodation ensures that

     Title IX ‘shall not apply’ to educational institutions that are ‘controlled by a religious organization,’ to the extent that application of Title IX ‘would not be consistent with the religious tenets of such organization.’ [5]

     Furthermore, DOE strengthened the effect of this religious accommodation in 2020 when it said that religious schools need not apply for an “assurance letter” from the Department of Education to claim a religious accommodation to Title IX.[6]   If this policy is reversed, however, empowering the DOE to approve or deny the claim of a religious accommodation could severely affect the ability of religious schools to operate according to their deeply held religious convictions regarding gender.

     Thankfully, there is nothing in the proposed rule which would weaken the strength of the Title IX’s statutory religious accommodation; nor does the new rule seek to undo the 2020 rule’s acknowledgement that schools controlled by a religious body do not need to submit a letter for approval by the DOE to claim a religious exemption to Title IX’s regulatory framework. Many left-leaning groups, however, do not think the DOE went far enough in its proposed rule.  We expect that during the 60 day public comment period, that many groups will seek to pressure the DOE to weaken the effect of the religious accommodation.[7]

     Due to our concerns with the DOE’s proposed rule, GLJC plans to submit a public comment emphasizing the importance of protecting First Amendment liberties.

* Joseph Brennan is a 2022 Wilberforce Fellow at Salt & Light Global

[1] Available at https://www.ed.gov/news/press-releases/us-department-education-releases-proposed-changes-title-ix-regulations-invites-public-comment (last visited June 30, 2022).

[2] Available at https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm.pdf (last visited June 30, 2022).

[3] Perry, Sarah. “The Department of Education’s Intended Revision Fails Regulatory and Civil Rights Analyses.” The Heritage Foundation. https://www.heritage.org/civil-rights/report/the-department-educations-intended-revision-title-ix-fails-regulatory-and-civil (last visited June 30th, 2022).

[4] Stepman, Jarrett. “By Inserting Gender Identity, Team Biden Muddies Title IX’s Protections for Girls, Women at School.” The Heritage Foundation. https://www.heritage.org/gender/commentary/inserting-gender-identity-team-biden-muddies-title-ixs-protections-girls-women (last visited June 30th, 2022).

[5] Available at https://www2.ed.gov/about/offices/list/ope/factsheetreligiouslibertyandfreeiInquiry09032020.pdf (last visited June 30th, 2022) quoting 20 U.S. Code § 1681 (3).   

[6] 34 C.F.R. § 106.12(b) (2021).

[7] Nittle, Nadra. “Biden Administration Announces Plan That Would Undo DeVos’s Gutting of Title IX.” Truthout.

 https://truthout.org/articles/biden-administration-announces-plan-that-would-undo-devoss-gutting-of-title-ix/ (last visited June 30th, 2022).