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 poised to blow past Halloween without announcing its Title IX proposals. The department isn’t making 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,” the statement 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 competing in female sports.
Paul Dupont, a 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,” Mr. Dupont said. “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 Notice of Proposed Rulemaking would replace former Education Secretary Betsy DeVos’ overhaul of rules expanding due process in campus sexual harassment cases with standards that weigh the balance back in favor of the accuser.
The rule also would “help protect LGBTQI+ students from discrimination” by redefining Title IX’s ban on sex discrimination to include sexual orientation and gender identity. It would specifically exclude 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 rule.
Nearly two years later, the department issued a second proposal forbidding schools from imposing blanket bans on transgender athletes. Schools would have to justify single-sex exceptions on a sport-by-sport basis and ensure efforts 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 as 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,” Mr. Jacobson, president of the Legal Insurrection Foundation, said 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 would create an avenue for schools to discriminate against transgender athletes. 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 comes from groups such as Advocates for Youth that have focused on the section dealing with sexual assault and harassment on campus.
The organization launched a letter-writing campaign titled “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. The Office of Management and Budget, which must review the finished product, received neither proposal as of Tuesday.
“That review, which can take up to 90 days, includes meeting with stakeholders and other affected parties,” said Inside Higher Ed, 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 regulations will be ready for the 2024-2025 academic year. That wouldn’t necessarily be a bad thing for Mr. Biden.
Jennifer Braceras, director of the Independent Women’s Law Center, described the holdup as a win-win for the White House. She said many schools are already enforcing the administration’s interpretation of Title IX.
“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 politically and legally risky. It would hand talking points to Republican candidates ahead of elections, and 23 conservative-leaning states have enacted laws that base athletic eligibility on sex at birth, not gender identity, setting up an inevitable legal challenge.
The Biden administration can’t be sued before the rules are 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.
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