Executive Aggrandizement vs. Women’s Sports

By Rich Lowry

Tuesday, April 11, 2023

 

Decades from now, when scholars are debating how the executive branch jumped the rails of any legislative accountability or rational rules, the new Biden administration Title IX edict should be the prime exhibit.

 

It is a sweeping expansion of regulatory power, not in the service of the original goal of the underlying statue, but in opposition to it.

 

This is brazen even for the Biden administration, with its student-loan-forgiveness program and rent moratorium.

 

The new draft rule forbids blanket bans on transgender athletes competing in sports against athletes of their adopted gender, but it allows, in theory, more-narrowly tailored prohibitions. This is being portrayed as a moderate, compromise approach to the issue. It is nothing of the sort. The more fundamental issue, though, is that it lacks any foundation in the law.

 

Congress passed Title IX ensuring equal access “on the basis of sex,” and President Richard Nixon signed it into law in 1972. The idea that Nixon and leaders in Congress — the likes of Tip O’Neill and Hale Boggs, Mike Mansfield and Robert Byrd — considered sex the same as gender identity is too ridiculous for words.

 

No one began seriously conflating the two until recently. If justice demands that Title IX encompass gender identity, then the solution is very simple — Congress should amend the statute.

 

Why bother with such “Schoolhouse Rock” notions, though, when Title IX can be rendered infinitely malleable?

 

First, the Biden administration last year redefined the law, without any warrant, so that “sex” includes “stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” And now there’s going to be an entire new regulatory regime devoted to ensuring that the participation of trans athletes in sports meets the Biden administration’s standards.

 

Congress passes a law protecting and encouraging women’s sports, and lo and behold, 50 years later the law is being used to make sure that as many males as possible are competing against females.

 

Here the road to hell isn’t even paved with good intentions, but bad-faith interpretations of the law imposed by people who know they can’t win democratic assent for their cultural agenda.

 

The order tilts all one way. As a Department of Education fact sheet says, “the Department expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases.” That makes it sound as though such limits will be the exception rather than the rule — and for good reason.

 

School districts and colleges are going to have to undertake what the New York Times calls “a multipronged assessment of whether or not to restrict transgender athletes from playing on their preferred team.”

 

They will have to evaluate criteria by sport, by level of competition, and by grade, and figure out whether a prohibition is “substantially related to the achievement of an important educational objective,” whatever that means. A school’s rule will not pass muster, according to the department, if it “chooses not to minimize the harm” to transgender athletes.

 

Given where the Biden administration is coming from on this issue, and the complexity involved, schools are going to default toward allowing male athletes to compete against women.

 

When the final rule is issued, it will surely become even more proscriptive, and the eventual enforcement regime will tighten up even further. Litigation by left-wing advocacy groups will add another layer of de facto enforcement.

 

The most physical sports — think football or wrestling — will probably remain separated by sex, but everything else will likely fall afoul of the new rule, or will at the very least exist under a pall of potential regulatory and legal headaches.

 

The draft rule is an affront to Congress, an affront to federalism (it clearly targets the roughly 20 states that have bans on males competing against females), and an affront to girls and women who simply want to compete against one another when they play sports.

 

The executive branch is now more beholden to “woke” imperatives than to the U.S. constitutional system.