President Biden has withdrawn his proposed rule protecting transgender athletes, but that doesn’t mean the game is up for biological males in female scholastic sports.
Nothing will change at the federal level until the courts or the next administration jettison the Biden administration’s previously approved regulation adding “gender identity” to Title IX, the 1972 law banning sex discrimination in education, according to advocates of single-sex female sports.
“The fight is far from over,” said May Mailman, director of the Independent Women’s Law Center. “Biden’s omnibus Title IX regulation redefines sex to mean gender identity, threatening all women’s opportunities in school, including athletics. We’re not done protecting women from the humiliation of being treated as though they are a state of mind.”
The Biden administration unveiled earlier this year its sweeping overhaul of Title IX, but insisted the redo did not include sports, saying that the issue of transgender athletes would be decided in a separate rulemaking introduced in April 2023.
That measure would have prevented schools from imposing blanket bans on male-born competitors who identify as female. The department axed the proposal Friday, citing the legal challenges filed by 26 states.
“In light of the comments received and those various pending court cases, the Department has determined not to regulate on this issue at this time,” the press release said. “Therefore, the Department hereby withdraws the Athletics NPRM [Notice of Proposed Rulemaking] and terminates this rulemaking proceeding.”
According to critics, however, nothing has changed. They maintain that the sports issue cannot be carved out from the administration’s previous reworking of Title IX, which took effect in August.
Marshi Smith, a former NCAA Division I athlete and cofounder of the Independent Council on Women’s Sports, said the Biden administration’s moves on Title IX have been marked by “calculated confusion.”
“The finalized regulations already redefined sex under the law to include ‘gender identity,’ a sweeping change that profoundly impacts girls’ locker rooms, scholarships, dorms, and yes even athletic team participation,” she said. “These regulations, which took effect last August, undermine protections for women and girls everywhere sex matters.”
If that’s the case, why bother withdrawing the sports rule? Analysts have come up with several explanations, starting with the shifting political winds on transgender athletes, an issue credited with boosting the Trump campaign in November.
“Even the Biden administration can read the room that forcing women to compete and change with men is not a winning proposition,” Ms. Mailman said. “Every state and private sporting body should figure this out.”
On the other hand, the Biden administration may privately agree that the sports rule is unnecessary in ensuring inclusion for transgender athletes.
“It’s our belief the so-called sports rule ‘carve-out’ was merely a distraction to deflect criticism of the broader Title IX rewrite while pushing through the insidious redefinition of who qualifies as female,” Ms. Smith said. “The Biden rewrite needs to be completely undone.”
Then again, the department may have decided to pull the rule to force the incoming Trump administration to start from scratch, instead of saving time in its effort to scotch the Title IX rule by amending the sports proposal.
Is the decision to withdraw the April 2023 sports-specific proposed rule a win for single-sex sports? Or is it a hollow victory because the June 2022 rule, finalized in April 2024, already redefined sex to include “gender identity” for all Title IX purposes, without exempting… pic.twitter.com/mLU3YitzOE
— Kara Dansky (@KDansky) December 21, 2024
Kara Dansky, spokesperson for the U.S. chapter of the Women’s Declaration International, concluded after a deep dive into the Title IX rewrite that the department is “deliberately obscuring its actual intention in order to confuse everyone.”
“So, inquiring minds want to know: is the decision to withdraw the April 2023 sports-specific proposed rule a win for single-sex sports?” she asked on Substack. “Or is it a hollow victory because the June 2022 rule, finalized in April 2024, already redefined sex to include ‘gender identity’ for all Title IX purposes, without exempting sports, anyway?”
Ms. Dansky concluded: “Unfortunately, I continue to think this is a hollow victory, at least for now.”
The Title IX rule took effect in August, but 26 states won temporary injunctions blocking the regulation from taking effect pending the outcome of litigation.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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