Fifteen states urge Biden administration to keep ‘gender identity’ out of Title IX overhaul

President Biden is on a collision course with red states on civil rights and gender identity, and Republican attorneys general want the administration to hit the brakes before a courtroom crash.

Fifteen GOP state attorneys general urged the Education Department to abandon its plan to redefine biological sex to include gender identity under Title IX, the federal civil rights statute governing gender equality in education, warning that they would take legal action to protect state laws on parental rights in the classroom and in interscholastic sports.

The anticipated notice of proposed rulemaking would “plainly exceed the department’s rulemaking under Title IX,” said the Tuesday letter to Catherine Lhamon, assistant secretary of education for civil rights. Montana state Attorney General Austin Knudsen took the lead in writing the letter.

“Several of our states have enacted legislation to protect athletic opportunities for women by prohibiting biological males from competing in female athletics,” said the letter. “Those laws would undoubtedly conflict with the department’s intended rulemaking. We are prepared to take legal action to uphold Title IX’s plain meaning and safeguard the integrity of women’s sports.”

The Biden administration is expected to push to add gender identity to Title IX, the 50-year-old civil rights law that bans discrimination “on the basis of sex” in education, as part of a redo of the Trump administration’s 2020 regulations strengthening due process in school sexual-misconduct allegations. The Education Department has said it will release the proposed overhaul as early as this month, putting it on track for approval in the fall.

Last year, the department’s Office for Civil Rights issued a “notice of interpretation” saying that the department would interpret Title IX enforcement to include sexual orientation and gender identity.

“Today, the department makes clear that all students — including LGBTQ+ students — deserve the opportunity to learn and thrive in schools that are free from discrimination,” said Education Secretary Miguel Cardona in the June 21 announcement.

The GOP attorneys general argue that Title IX, part of the Education Amendments Act of 1972, referred only to “biological sex,” not gender self-identification.

Fourteen states, including Montana, have passed legislation barring male-born athletes from female sports. Several of the new laws have been challenged in court.

In addition, Florida Republican Gov. Ron DeSantis signed last month a bill prohibiting classroom instruction on gender identity and sexual orientation in grades K-3, a proposal catching on in red states. Ohio legislators introduced a similar bill earlier this week.

“We are also concerned that an interpretation of Title IX that goes beyond sex to include gender identity has and will be used by schools to improperly intrude into parental decision-making regarding the education and upbringing of their children,” said the letter. “An interpretation of Title IX that supports such radical positions runs contrary to the role of the Department of Education, the text of Title IX and parents’ constitutional right to decide what is in the best interests of their children.”

The letter also said Ms. Lhamon should recuse herself from the proceedings, saying that she had a conflict of interest stemming from her work on the issue in the Obama administration’s Office for Civil Rights.

The Republicans cited the office’s hotly disputed 2011 “Dear Colleague” letter, which “compelled schools to adopt the lowest standard of proof for proving sexual harassment and sexual assault claims,” prompting hundreds of student lawsuits over denials of due process.

“We strongly urge the department to cancel its plans to engage in rulemaking on Title IX,” the letter said. “If the department elects to continue with the process, we firmly believe [Ms. Lhamon] should have no role in it.”

Also signing the letter were attorneys general from the following states: Alabama, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and Texas.