Prepare to Fight Upcoming Title IX Rule Changes for Sport that Discriminate Against Women & Girls

The recently published final rule on Title IX, which excludes athletics for now, does not bode well for female sports. Grassroots activists need to roll up their sleeves.

Image Credit ABC News

Last week, after several delays, the Department of Education published its final rule on Title IX - excluding the piece relating to sports, which has been postponed. Numerous liberal activist organizations, including Human Rights Watch, GLSEN, Transgender Law Center, National Center for Transgender Equality, National Black Justice Coalition, and Interfaith Alliance; as well as putative feminist groups such as the National Organization for Women (NOW), Feminist Majority Foundation, and National Women’s Law Center, had pressured the Biden administration to publish the regulatory changes, including those on sport, ahead of the November general election.

The published regulatory changes, initiated three years ago, expand the scope of sexual harassment, roll back Trump-era rules regarding how complaints of sexual harassment should be handled, and clarify accommodation for those with “‘pregnancy or related conditions’ includ[ing]… termination of pregnancy and lactation.” The new rule also includes provisions with serious implications for free speech. Watch for an upcoming podcast with Kathleen Kelly, a feminist attorney who was part of the original Title IX implementation working group, and is a retired sex crimes prosecutor, to discuss and analyze these changes. 

Of immediate serious concern is the provision on use of bathrooms and locker rooms based on gender identity. The rule states that although sex separation of bathrooms and locker rooms is “not presumptively unlawful sex discrimination,” it is when it causes more than “de minimis” harm, and the Department has determined that requiring a transgender student to use facilities that do not align with their “gender identity” constitutes more than minimal harm.

The UN Special Rapporteur on violence against women, Reem Alsalem, today issued a statement on this rule change:

The erroneous redefinition of “sex” through these implementing regulations constitutes a grave setback that will increase the vulnerability of the majority of women and girls to incursions into their privacy, including voyeurism, sexual harassment and physical and sexual attacks, by effectively removing single sex spaces,” [she said].

Two major criticisms feminist lawyer Bess Hungerford had about these proposals were 1) the introduction of a novel concept in Title IX, de minimis harm; and 2) that the only party for whom harm is addressed are transgender students. Harm to women and girls is not considered. We addressed both of these issues in our public comment on sport. Others had similar concerns in their comments on the rest of the proposed rule changes, with some:

arguing that [de minimis harm] is not rooted in Title IX or case law, that it is confusing, ambiguous, vague, or overbroad, or is too malleable, enabling recipients [federally funded educational institutions] and the Department to act arbitrarily rather than based on objective principles (p1253). 

However, the Department brushed these concerns aside, saying that it “disagrees” and that the “de minimis harm” standard is “well-established.” The Department also waved off commenters asking for guidance on how to determine when a harm is more than “de minimis,” saying that:

It is not necessary to elaborate on this point in the regulatory text, because this objective standard is consistent with and grounded in longstanding anti-discrimination law and its injury requirement (p1256). 

The fundamental problem with the rule change, which will undoubtedly be replicated in the rule pertaining to sports, is that the definition of sex has been re-interpreted to include “sex stereotypes, sexual orientation, gender identity, and sex characteristics." The stated goal is to protect LGBT persons from discrimination. However, rather than creating a new protected category, the rule includes males who identify as women or girls in the definition of sex, and then, through the provision on de minimis harm, effectively prioritizes the interests of trans-identified males over that of women and girls - the class of people for whom the law was created in the first place!

Unfortunately, it will take time to undo this. Certainly, lawsuits will be filed. Louisiana’s superintendent of education has already instructed schools there to ignore the new rules, set to take effect in the fall, on the grounds that to do so may violate other state and federal law. Education officials in Florida and South Carolina have also issued letters critical of the new regulations and directing schools in their states to delay implementation pending court challenges.

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In the rest of this essay, I want to focus on the upcoming rule change on sport, in an effort to get ahead of publication of that rule, where we can. The Biden administration faces continuing pressure from trans advocates, with Human Rights Campaign “in near-daily contact with Biden officials and congressional Democrats to plot strategy,” and women’s soccer star Megan Rapinoe leading the charge to demand that the National Collegiate Athletics Association (NCAA) allow trans-identified males to compete as women.

It is surely no accident that the final rule on sport has been delayed until sometime after the election. Polls indicate that while a majority of Americans support transgender rights generally, they also believe that it is unfair for trans-identified males to compete in female sport.  For example, Pew research found that 64% of US adults 

favor laws that would protect transgender individuals from discrimination in jobs, housing and public spaces such as restaurants and stores; 

while:

58% favor proposals that would require transgender athletes to compete on teams that match the sex they were assigned at birth (17% oppose this, 24% neither favor nor oppose).

Further, a growing percentage of Americans (60% as of 2022) assert that “gender” is determined by one’s birth sex.

Judging by the final rule just published, the final rule on sport will probably closely resemble the proposed changes that were submitted for public comment last year. Those proposals prohibited bans based solely on transgender status, but did allow for sex-segregated sport where it can be justified for educational goals, fairness, and safety. The problem is that many schools may not have the time and resources to develop elaborate justifications for female-only sport, and will be tempted to take what Hungerford called “the path of least resistance” and not bother developing such policies. Hungerford describes the problem in our public comment:

Public schools are chronically underfunded by local jurisdictions and private schools depend on fundraising to survive. Recipients may not be able or willing to undertake expensive litigation to determine whether their eligibility policy using sex-related criteria other than gender identity will be accepted under the new proposal. In every case, litigation will divert resources from actual educational programs and should be avoided at nearly all costs. Particularly in edge cases, such as middle schools when students are experiencing the average onset of puberty, it is not fair to put the burden on recipients to test their policies at the unavoidable expense of litigation. Due to the way Title IX’s regulations have been structured–to permit the use of sex-related criteria other than gender identity but not to require it–the path of least resistance and legal risk would be to drop sex-related criteria other than gender identity altogether.

Here is where I believe grassroots activists can make a difference. There is abundant evidence of male advantage in sport and, luckily for us, this is readily available online. Grassroots activists can put together reports and packets of research demonstrating that advantage. (Look for a list of resources to get you started at the end of this article). After the final rule on sport is published, assuming that it retains the rule on justifying sex-segregated sport on the basis of safety and fairness, parents and older athletes can then approach their school administrators to request that they implement sex-segregated sport, as allowed by Title IX.

It wouldn’t be the first time that women have had to take action to compel compliance. In fact, from the beginning Title IX advocates have had to collect evidence of discrimination against women, file complaints about noncompliance, and defend women’s right to a fair share of sports funding in a number of congressional hearings over the years. Some women athletes took direct action to force compliance when Title IX was first enacted. Basketball great, author, and member of the Women’s Sports Policy Working Group, Mariah Burton Nelson recalls that when she was student at Stanford (1974-1976) she and other players: 

[S]pent all of our free time in the athletic director’s office reminding him about the law and holding sit-ins… saying, “Look, you have to start enforcing Title IX. We want to play in Maples Pavilion, we want real uniforms, we want paid coaches. And we want to travel all over the country, like the men do.”

In 1976, the Yale women’s crew took direct action a step further:

Lacking access to shower facilities during their off-campus winter workouts, cold and sweaty members of the women’s team waited on a bus for half an hour while the men’s team showered in the boat house’s only locker room before before jointly returning to campus. Angered at Yale’s slow response to their call for proper facilities and led by captain Chris Ernst, nineteen members of the crew team strode into the office of Joni Barnett, the director of women’s athletics, and stripped off their sweats, their naked bodies revealing “Title IX” written on their backs and chests in blue magic marker. The story was picked up by the New York Times and other newspapers around the country. The women’s crew team got their showers.¹

Contemporary female athletes are beginning to stage their own anti-discrimination protests, now against being forced to compete with males. Last week, five middle school girls in Virginia refused to compete against a trans-identifying male in shot put. It was a brave stand and they almost certainly faced some unpleasant consequences. Everywhere we see these kinds of actions, we should support women and girls; on social media, with comments on news stories, and letters to the editor.

Finally, once you have your information packet and report justifying female-only sport assembled, and while we await the final rule on sport, consider using it to lobby your legislators.² The best approach is to assume that they are simply unaware of the facts, and you would like to help them understand why allowing trans-identified males to compete in female sport is unfair. Don’t be discouraged if you don’t turn them around on this issue during the first meeting! Lobbying is about building a relationship. The goal is to provide unbiased information in support of your cause and create trust so that you may slowly gain influence.

In her history of Title IX, feminist historian Susan Ware notes:

The fate of Title IX has always been tied to the larger political climate. Its immediate passage in 1972 was heavily influenced by the surge of legislative activism related to the increasingly loud demands of the modern feminist movement, which had its greatest impact in the first half of the 1970s.³

Feminist activism, not political parties, was the driver for passage and enforcement of this landmark legislation. We do not have such a movement today, and we do not have the ear of the Biden administration and congressional Democrats, as does the transgender lobby. While lawsuits are necessary to undo the central problems with the new Title IX regulations, they will take time, and some women and girls will age out of athletic opportunities. A strong grassroots movement to advocate fairness in female sport can take advantage of the opportunity the new regulations will likely offer to justify female-only sport - and will build public awareness and support for restoring justice for women and girls.

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SELECTED RESOURCES (in alphabetical order)

• Boys vs Women

  • Graphically illustrates the male advantage in sport by comparing teen-aged boys vs women’s records in track and field events and swimming.

• Coleman, Doriane Lambelet. Former elite athlete and current law professor at Duke University.

  • Coleman, D.L. “Sex, Sport, and Why Track and Field’s New Rules on Intersex Athletes Are Essential.” The New York Times, April 30, 2018.

  • Coleman, D.L, Joyner, M.J. and Lopiano, D.A. “Re-Affirming the Value of the Sports Exception to Title IX’s General Non-Discrimination Rule.” Duke Journal of Gender Law & Policy, March, 2020.

  • Coleman, D.L., “Sex in Sport,” Duke University School of Law, Vol. 80, No. 4, Sex in Sport (2017), pp. 63-126.

• Devine, Cathy. British researcher on sports policy.

  • Devine is a staunch advocate for female-only sport and knows the research thoroughly. Worth following on twitter; she has strong rebuttals for every argument in favor of trans-identified males in female sport. @cathydevine56

  • Devine, Cathy, “Female Olympians’ voices: Female sports categories and the International Olympic Committee Transgender Guidelines,” International Review for the Sociology of Sport, June 2021.

  • Devine, Cathy, et al., “When Ideology Trumps Science: A response to the Canadian Centre for Ethics in Sport’s Review on Transwomen Athletes in the Female Category,” published on idrottsforum.org, November 29, 2022.

• Duke University Center for Sports Policy & Law

  • Comparing Athletic Performances: The Best Elite Women to Boys and Men.

• Hilton, Emma. British developmental biologist and co-founder of sex-matters.org

  • One of the best, if not the best, scientists writing about these issues. There is a wealth of useful information in her work.

  • Harder, better, faster, stronger: why we must protect female sport.

  • Hilton, Emma and Lundberg, Tommy, “Transgender Women in The Female Category of Sport: Perspectives on testosterone suppression and performance advantage.” Sports Medicine. 2021;51: (PMID 33289906 and doi: 10.1007/s40279-020-01389-3).

• Shewon.org

  • Tracks female athletes who were displaced by males in women’s sporting events and other types of competitions expressly for women.

• Women’s Sports Policy Working Group

  • Comprised of former elite athletes (including Martina Navratilova, Mariah Burton Nelson, and Nancy Hogshead-Makar) and sports administrators, this organization advocates for female-only sport. They wrote, hands-down, the best public comment on the Title IX proposed rule changes for sport. Passionate and grounded in evidence, their statement will have you punching the air. Read it for inspiration - and citations you can use.

  • WSPWG tracks and rates US and international sports policies on inclusion of trans-identified males in female sport. They also tracked and provided details on hundreds of male victories in female sport, before it became more than they could handle. They recommend shewon.org going forward.

1. Ware, Susan. Title IX: A Brief History with Documents (p. 69). Waveland Press, Inc., Kindle Edition.

2. When President Biden took office and announced his intention to pass the Equality Act, I created a now-defunct informational website about this legislative proposal. I included a guide for lobbying that you can download here. The focus is on federal legislative lobbying, and part of it is formal; i.e. the roles lobbyists take in a meeting. However, Title IX activists may find useful tips they can adapt for their particular lobbying goals.

3. Title IX: A Brief History with Documents, p13.