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On April 19, 2024 the US Department of Education published a final rule governing Title IX of the Civil Rights Act, which prohibits discrimination on the basis of sex in federally-funded educational programs.
You may recall that FAIR previously filed public comments on two proposed Title IX rules: one governs sex-based discrimination in educational programs in general; and the other governs sex-based discrimination in the context of sports. You can read those public comments here and here.
Frequently Asked Questions
These questions and answers were graciously provided by FAIR Network Attorney Candice Jackson.
The information provided on this page is for educational and general informational purposes only, and is not legal advice. You should not act or decide not to act on the basis of any such information. No attorney-client relationship is formed by your communications, in any form, with FAIR or any of its employed or network attorneys.
Can an executive agency just come in and do this?
Almost every executive agency exists, in theory, to enforce certain legislative mandates (basic separation of powers – Congress passes laws, the Executive Branch enforces the laws, the Judicial Branch interprets the laws (and Constitution)). So an agency does have authority to come up with regulations “to enforce” the statutes it is given jurisdiction over, as long as the agency first gives notice to the public and an opportunity for the public to submit comments/objections. Title IX, for instance, does charge the US Education Department with responsibility for enforcing Title IX, ultimately with the power to terminate federal education funding against schools that violate Title IX (and refuse to remedy the violations). The question for a regulation like this new Title IX Rule is whether the agency has exceeded its authority by going beyond what Congress passed in Title IX, or if the regulation itself violates the Constitution or other federal laws, or if the agency’s regulations are so unreasonable or unreasoned that they are arbitrary or capricious. There’s a good case to be made (and it’s being made in the now-four lawsuits against the Rule) that this Title IX Rule is invalid on all those grounds.
Will my daughter lose her athletics scholarship to a male?
To the extent that sex-restricted scholarships are allowable under Title IX, this new Rule does seem to require that any scholarships offered “for girls” now must be available to anyone who self-identifies as a girl. So yes, the possibility exists that a female student applying for a scholarship will now face boys in the pool of candidates eligible for that scholarship. (As for scholarships already awarded to a girl, there is no reason to believe that this Rule would cause the scholarship to be revoked and re-awarded to a boy.)
Will my daughter be forced to change in front of a male?
This new Title IX Rule does specifically prohibit schools from preventing boys/men entering and using bathrooms, locker rooms, shower facilities that are designated “for girls/women.” Whether or not this means girls will be forced to show their naked bodies in front of males while changing clothes depends on how the actual shower/locker room is constructed – with or without cubicles with privacy curtains, for instance. Even with optional privacy curtains, of course, boys/men using the changing room could choose not to use the private cubicle and instead display their own naked bodies to girls/women.
Will my daughter be forced to room with a male?
Under this Title IX Rule, overnight accommodations that do not constitute “housing arrangements” (so, overnight stays for a senior class camp-out, or for an athletic team’s away-game weekend, etc.) must accommodate students based on “gender identity,” so even if a cabin or hotel room is labeled “single-sex” or “girls-only,” males must be allowed into such rooms based on a “gender identity” claim. Schools (mostly colleges and universities) that provide living or housing units can still exclude males from women-only housing – although the current Education Department recommends that schools choose not to do this.
What are the consequences to my daughter if she refuses to change in front of or room with a male?
Under this Title IX Rule, a female student who objects or refuses to go along with using changing rooms or overnight accommodations with males is at risk for having the objected-to male, or the school’s Title IX Coordinator, or anyone else who sees or hears about the situation, file a Title IX complaint against the female student alleging sex-based harassment or discrimination (based on “gender identity”). If found responsible for a Title IX violation, the school has wide leeway to impose discipline on the student, including exclusion from school activities, suspension, or even (in an extreme case) expulsion.
How will my daughter be protected when competing in a contact sport against a male or males? (Ball velocity, impact, etc.)
The current Title IX Rule disingenuously pretends to avoid the issue of males in female sports, by pointing to a sports-specific Title IX draft regulation that has been proposed but hasn’t been finalized yet (and likely won’t be until after the November election). The status quo, however, is that the Education Department has been encouraging schools for nearly four years to allow participation in sports by “gender identity” instead of by sex, so many schools do already allow males to choose to play in women’s categories. There is rarely any protection for girls in that situation, and any way of asking for protections would be up to the individual school policy (or more likely, the sports association that the school belongs to).
Will my daughter lose playing time, or opportunities for championships and medaling, to males? Over and over, we’ve seen biological males on the podium receiving awards for women.
Under school policies that allow males to compete in female-designated sports (and all such school policies are being deemed compliant with Title IX by the current Department of Education), it is logically inevitable that some female athletes will lose playing time (eg, sit on the bench, or not even make a team) to male athletes who demand to try out or play for sports designated “women only,” and similarly the participation of male athletes in women-designated sports inevitably means that some female athletes will lose championships and medals (and records) to male athletes.
Does my daughter have any say in any of this?
The new Title IX Rule does not give female students any voice or process for objecting to or challenging inclusion of males in what should be female-only spaces and sports, including refusing to call males girls, women, “she” or other words that indicate a person’s sex. In fact, the Title IX Rule incentivizes schools to discipline girls and women for speaking up against such policies (calling it “sex-based harassment based on gender identity”). Unless courts step in and invalidate this Title IX Rule, girls and women in schools, colleges, and universities who do voice objections or take actions (such as girl-cotting locker rooms or sports games) are likely doing so in a civil disobedience context, technically violating school policies (and violating the current interpretation of Title IX) and risking school discipline as a result. Individuals do have the right to sue their school for Title IX violations as well as constitutional deprivations (such as First Amendment, or 14th Amendment due process), so it’s possible that despite the Education Department’s erroneous interpretation of Title IX, federal courts could vindicate the rights of girls and women if/when they are persecuted under the new Title IX Rule. Expecting girls and women to file private lawsuits is, of course, a high burden that they shouldn’t have to undertake.
I live in a state that prohibits biological males from competing on female sports teams. What will happen once this regulation goes into effect? Will my state’s law stand?
The Title IX Rule states that because it is a federal law regulation, it preempts (overrides) State laws that conflict with it. Whether that is a permissible kind of preemption is an issue being raised by the so-far nine states in lawsuits against the Rule, most of which do have State laws that protect sex-based categories for activities such as sports. Enactment of the Title IX Rule does not automatically invalidate the State laws, but it does set up a show-down where a State standing by its own women’s rights law is now at risk of the Department of Education threatening to terminate that State’s federal education funding. That show-down will work its way through courts, so whether or not your State’s women’s sports law will continue to be in effect depends for now on how bold your State is willing to be in the “game of chicken” with the federal government.
