Redefining ‘Sex’ Threatens Title IX

In 1972, Congress passed Title IX to address sex discrimination and barriers that many women faced in education. One of the more surprising effects of this legislation was the subsequent expansion of women’s sports, which has given women numerous opportunities to compete, build confidence, and advance their education and career goals.

More than 50 years later, however, the Biden administration is trying to redefine “sex” and “sex discrimination” in federal law by expanding those terms to encompass “sexual orientation” and “gender identity.”

In other words, the federal government is trying to twist legislation intended to help women and girls by redefining what it means to be a woman or a girl—in complete contradiction to biological reality.

When biological differences between men and women are ignored, it is women who suffer the most. Title IX should continue to reflect these intrinsic differences. Failing to do so not only undermines Title IX and the protections it offers women, but it also threatens many of the foundational freedoms that all Americans cherish.

 

What is Title IX?

Title IX was passed as part of the Education Amendments of 1972. It was signed into law by President Richard Nixon on June 23, 1972.

Title IX was intended to eliminate obstacles that many women faced in education, especially in higher education. The main provision of Title IX states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

In practice, Title IX banned most sex discrimination in college admissions, required colleges and universities to prohibit sexual harassment on campus, allowed women greater access to financial assistance, banned discrimination based on pregnancy status, and paved the way for the later expansion of women’s sports.

 

What is the history of Title IX?

Title IX was seen as a follow-up bill to the Civil Rights Act of 1964. Among other things, the Civil Rights Act prohibited discrimination on the basis of race, color, religion, sex, or national origin in the areas of employment and public accommodation.

But the Civil Rights Act exempted sex from its list of protected characteristics in federally funded programs. In addition, educational institutions were exempted from employment discrimination.

President Lyndon Johnson later signed executive orders to try to address these issues, but the federal government did not strictly enforce them in education. So by 1970, legislators began devising solutions around the same time the Equal Rights Amendment was being debated in Congress.

In the early ’70s, Hawaii Rep. Patsy Mink, with contributions from Oregon Rep. Edith Green and Indiana Sen. Birch Bayh, authored and sponsored a bill to ban sex discrimination in federally funded education programs.

After negotiations, exemptions were made for private institutions and single-sex (all-male or all-female) education institutions.

This bill later became Title IX of the Education Amendments of 1972. Since then, numerous pieces of legislation have sought to limit the scope of Title IX’s applicability, while court cases and “dear colleague” letters from the executive branch have sought to expand the scope of Title IX.

 

What was the effect of Title IX on women’s sports?

One of the more surprising effects of Title IX has been on women’s sports. Title IX was not originally passed to address equal opportunities for women in school sports. But over time, its effect on the growth of women’s sports has become undeniable.

 

 

Before Title IX was passed, male athletes vastly outnumbered female athletes. According to the Women’s Sports Foundation, in 1972, boys outnumbered girls 3.66 million to 300,000 (more than a 12:1 ratio) in high school sports. Fifty years later, that ratio has shrunk to about 4:3 (4.5 million boys to 3.4 million girls).

Similar changes can be seen in collegiate athletics. In 1972, male athletes outnumbered female athletes 170,000 to 30,000 (almost a 6:1 ratio). Now, that gap has shrunk to just under 4:3 (275,000 men to 215,000 women).

 

The meaning of “sex” in Title IX

For decades, Title IX has been hailed for banning “sex discrimination” in education. Ironically, though, the plain meaning of the word “sex” is now being called into question. Many, including the Biden administration, are wrongly advocating that “sex” also includes “sexual orientation” and “gender identity.”

In 2020, the Supreme Court erroneously ruled in Bostock v. Clayton County that an employer who fires an individual merely for identifying as gay or transgender discriminates based on “sex” in violation of Title VII of the Civil Rights Act of 1964. Until recent years, Title VII’s reference to “sex” had always meant one thing—biological sex. But the Supreme Court allowed courts and federal agencies to rewrite the law.

The Biden administration has sought to expand the Court’s ruling beyond employment discrimination and apply it to Title IX.

But it is clear from the text of Title IX (as it is in the text of the Civil Rights Act of 1964) that sex meant biological sex, male and female. For example, Title IX allows schools in some cases to change “from being an institution which admits only students of one sex to being an institution which admits students of both sexes.”

Not only do provisions like this speak of “the” other sex or “both sexes,” rather than “another” sex or “all sexes,” but they also use terms like “father-son” and “mother-daughter” which are rooted in biology. Title IX says nothing about sexual orientation or gender identity.

At the time, Webster’s Third New International Dictionary (1966) defined sex as “one of the two divisions of organic esp. human beings respectively designated male or female.”

Mother was defined as “a female parent”; “father” as “a male parent”; “son” as a “male offspring”; and “daughter” as “a human female.” This makes no sense if “sex” includes today’s non-binary concept of gender identity.

Alliance Defending Freedom strongly opposes any effort to redefine sex in federal regulations inconsistent with the text of Title IX itself for several reasons:

 

1. It lacks legal authority

Redefining “sex discrimination” is not authorized by Title IX’s text or Supreme Court precedent. Title IX deals with sex, not gender identity or sexual orientation.

Likewise, the Bostock decision does not require reinterpreting “sex” under Title IX. The Court held that firing someone merely for identifying as gay or transgender violates Title VII, not Title IX.

Similarly, Bostock does not change the ordinary meaning of sex under Title IX but still recognizes sexual orientation and gender identity as distinct concepts. In addition, the Supreme Court rejected any application outside of the Title VII employment context when it said,

"The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today."

Read more about how redefining sex in Title IX lacks legal authority.

 

2. It hurts female athletes and jeopardizes women’s privacy

Redefining “sex discrimination” undermines fairness in women’s sports and diminishes women’s privacy and safety. ADF has represented multiple female athletes like Selina Soule and Chelsea Mitchell who have lost to male athletes in women’s sporting events.

In West Virginia, former collegiate athlete Lainey Armistead has intervened to defend a state law designed to ensure equal opportunities for women and girls in sports by making sure they are not forced to compete against males.

After a district court upheld the state law as constitutional, an appeals court stopped the law from taking effect without any explanation. So ADF has asked the Supreme Court to set that order aside and allow the law to remain in effect.

 

 

Ignoring the real biological differences between males and females harms women and girls, who lose the ability to compete fairly; are exposed to unsafe competition; and miss out on athletic opportunities, public recognition, and scholarship opportunities.

And redefining sex is not only affecting women’s sports but other women’s-only spaces like bathrooms and locker rooms.

ADF is representing 14-year-old Blake Allen after she was punished by her school for referring to a male student who identifies as female as a “dude” after he had come into the girls’ locker room while the girls’ volleyball team was changing. Instead of protecting Blake and the other young girls who felt violated, the school sought to “correct” her thinking and reeducate her.

Read more about how redefining sex in Title IX hurts female athletes and jeopardizes women’s privacy.

 

3. It undermines parental rights

Redefining “sex” to include gender identity undermines parental rights and exposes children to the risk of long-term harms.

Across the country, many school districts have adopted policies that require teachers (and other school staff) to ask students for their preferred name and pronouns, and then always use that preferred name and pronouns with the students. Staff are then required to use preferred names and pronouns at school, even when a name or pronouns are inconsistent with a student’s biological sex and different from the registration or enrollment documents provided by the student’s parents.

And staff are also required to keep the use of these preferred names and pronouns hidden from the student’s parents or guardians unless school officials specifically authorize staff to disclose their use. 

The implications of such policies are clear: school districts are encouraging students to lead double lives—using one name and set of pronouns at school and another at home, without their parents’ knowledge and consent.

Keeping such sensitive information secret from parents is a grave imposition on their fundamental rights.

ADF is litigating numerous cases, including in Virginia and Wisconsin, in which school officials are undermining parents’ fundamental role in directing the education and health care of their children.

Read more about how redefining sex in Title IX undermines parental rights.

 

4. It harms women and unborn children and disregards medical ethics

While Title IX was explicitly written to be neutral regarding abortion, the Biden administration is seeking to change that.

The administration is trying to redefine sex discrimination to encompass “termination of pregnancy” discrimination, which could open the door to creating federal rights to abortion in educational settings.

Without clarification, such a regulation could effectively create an abortion mandate that would restrict pro-life programs, undermine a state’s ability to protect unborn life, and imperil conscience rights in health care.

In addition, the redefinition of “sex discrimination” to include gender identity unlawfully coerces health-care providers to perform or refer for life-altering procedures that seek to make a person resemble a member of the opposite sex. 

The government should promote the common good and dignity of all people, while upholding the constitutional freedoms of all Americans. Doctors, patients, and families deserve no less.

The government should not force doctors to offer or participate in procedures that harm their patients and that go against providers’ deeply held medical and ethical convictions.

ADF is currently representing 3,000 physicians and health professionals against the Biden administration for this very reason.

Read more about how redefining sex in Title IX harms women and unborn children and disregards medical ethics.

 

5. It violates freedoms of speech and religion

Changing “sex” to include “sexual orientation” and “gender identity” threatens to censor and compel speech, trample religious exercise, subject students and faculty to campus kangaroo-court procedures, and imperil the educational mission of schools nationwide. 

Free speech is clearly threatened by the mandatory use of pronouns inconsistent with a person’s biological sex. Words matter, and redefining “sex” to include sexual orientation and gender identity necessarily implies a different message that many will not want to express.

• By including sexual orientation, a speaker who expresses the widely held belief that marriage is between one man and one woman could be brought up on charges of sex-based harassment or bullying.

  ADF recently won a case against University of Idaho officials, who had issued no-contact orders against three students and a professor due to their religious expression in support of the belief that marriage is between one man and one woman.

• Likewise, by including gender identity, a speaker who declines to use a person’s preferred pronouns could be charged with similar offenses.

  In 2021, ADF successfully defended Dr. Nicholas Meriwether in the U.S. Court of Appeals for the 6th Circuit after Shawnee State University charged him with “creating a hostile environment” for declining to refer to a male student as a woman, as this would thus express messages that contradict what he believes is real and true.

 

 

Schools that receive any type of federal assistance are also endangered by this redefinition of sex.

• Schools that choose to protect their students by maintaining sex-specific private spaces and sports teams, choose to respect the First Amendment rights of their students and teachers, or seek to operate according to their religious convictions risk costly litigation in addition to having their federal funding revoked.

  ADF successfully defended three Christian universities against an LGBT activist group that sought to strip Title IX’s religious exemptions from these schools (along with their federal funding) simply for operating according to their beliefs about gender and sexuality.

• K-12 schools are also threatened by this change.

  ADF client Grant Park Christian Academy participates in the National School Lunch Program in order to provide meals to its students. For many of those students, this meal is the best meal they eat all day.

  Under Title IX, participating schools agree not to discriminate on the basis of sex. Grant Park Christian Academy always complied with Title IX, but with the redefinition of sex, the school’s meal program was in danger. Thankfully, after ADF filed a lawsuit, the Biden administration agreed to respect the law’s religious exemptions. The government’s mandate remains in place for public schools, charter schools, and secular private schools.

Read more about how redefining sex in Title IX violates freedoms of speech and religion.

 

Conclusion

We are all equal, but we aren’t all the same. Title IX was premised upon the reality that men and women are different and that these differences matter.

When biology is ignored, and words like “sex” lose their meaning, it is women and girls who bear the brunt of that mistake.

Title IX should continue to remain a law that serves to protect the lives and opportunities of women and girls.