Comment on Notice of Proposed Rulemaking Regarding Title IX as Applied to Male and Female Athletic Teams

The Manhattan Institute joined the American Civil Rights Project on a comment to the U.S. Department of Education, raising numerous potentially fatal defects in the department’s proposed alteration of the regulation governing the men’s and women’s athletic programs run by federal funding recipients. This proposal would re-write President Ford’s regulation that has long compelled recipients to equalize the athletic opportunities afforded across men’s and women’s programs.

Throughout almost all of Title IX’s history, that 48-year old regulation has compelled recipients to equalize the number of teams, number of roster-spots, number and amount of scholarships, and academic supports for athletes in their men’s and women’s programs. The department would now insert into this regulation limitations on the ability of any recipient to “adopt[ ] or appl[y] sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity.” Far from the minor tweak the department prefers to imply its rule change would work, this alteration would be transformative.

The department’s alteration makes hash of Title IX’s protections of male and female sports programs, without Congress or the courts having made any justifying change to the substantive law the regulation would enforce. The department has claimed that the Supreme Court’s Bostock opinion (which applies antidiscrimination law to employment actions based on sexual orientation or gender identity) supports or requires the rule change, but Bostock is irreconcilable with the proposed regulation.

Equally problematic, the department’s proposed addition either requires a thorough reinterpretation of both the existing regulation and of Title IX that would gut federal law’s protections of male and female sports, or would make it impossible for any federal funding recipient to comply. Furthermore, its proposed rule change would deny funding recipients any real option to pursue a “different approach” to the equalization of opportunities in ways respecting the fairness and safety of women’s sports, functioning instead as a flat-out mandate to terminate all single-sex athletic programs.

The department has chosen to celebrate Title IX’s achievements in its 50th anniversary year by quietly calling off the entire project of affording men and women equal athletic opportunities. That can’t be right and shouldn’t go forward.

Dan Morenoff is the executive director and secretary of the American Civil Rights Project.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Photo: FatCamera/iStock