Title IX prohibits federally-funded schools, colleges, and universities from discriminating “on the basis of sex.” The proposed regulations would add “gender identity” as a protected trait and require schools and universities to allow individuals to access single-sex activities and facilities that align with their gender identity. This would dramatically alter the nature of Title IX by elevating protections for gender identity over protections based on biological sex in many cases—matters that FAIR believes should be decided by individual institutions and states rather than by the federal executive. Taken at face value, the proposed regulations would also require schools and universities either to establish a separate facility and athletic team for each of the hundreds of recognized gender identities, or to transform all teams and facilities into “all-gender.” Neither of those options is feasible. 

Additionally, schools and universities could discipline individuals who decline to use the preferred gender pronouns of others, on the grounds it constitutes “sex-based harassment” under the regulations. While the regulations state that they shall not infringe upon any First Amendment rights, they explicitly preempt state laws, including state free speech laws. Thus, the proposed regulations would empower schools and universities to punish speech that is protected under the law of the states in which they are located. The proposed regulations also contravene due process norms by requiring school employees to report conduct based on only vague suspicions; empower schools to effectively punish the accused before the adjudication process has begun; allow schools’ Title IX Coordinators to act as prosecutor, judge, and jury in the adjudication process; and open the door to universities withholding evidence from one party if they believe doing so would be “equitable.”

FAIR has submitted a public comment regarding those concerns and urging the Department to amend the proposed regulations accordingly. We encourage you to submit your own comment to make your concerns known. Click the button below to download suggested comments.