Write an Effective Public Comment on Title IX Proposed Rule Changes
Writing influential comments is not difficult - once you learn what is expected.
with Elizabeth Hungerford
The public comment period for proposed rule changes in Title IX regulations has begun. Now is an opportune time for citizens and activists to weigh in on the expansion of what constitutes “sex discrimination” in the original statute. The Department of Education's publication of the proposed rule changes has been delayed several times, the sections on sport have been deferred to a later date, and the text of the proposed changes is convoluted and conspicuously fails to provide definitions for new terms introduced here for the first time. This suggests there may be internal division over the proposed changes, especially as it has become clear that the general public is overwhelmingly opposed to trans-identifying males in female sport, and in places where girls have an expectation of privacy, such as locker rooms and restrooms. An effective public comment now may have greater impact than usual, so it behooves us to take our time to write a good one - we have until September 12th.
This article will focus on the expansion of “sex” to include “gender identity.” Most of the rule changes involve adjudication of complaints of sexual harassment and assault. During the Trump administration, then Secretary of Education Betsy DeVos instituted controversial rule changes that expanded the rights of the accused to include a live hearing and to cross examine accusers. The proposed rule changes reverse Trump-era changes and expand the definition of sex-based harassment to include sexual orientation and gender identity.
Several organizations have published templates for comments, including the US chapter of Women’s Declaration International (WDI USA), Parents Defending Education (PDE), and the Women’s Liberation Front (WoLF). My goal here is to consider these with reference to the advice the Brookings Institute has published on writing effective public comments, suggest improvements, and incorporate Elizabeth Hungerford’s analysis of the proposed changes. Hungerford is a trained lawyer who has been interested in the legal intersection of “gender identity” with single sex classification for more than ten years.1
Go beyond simply stating that you oppose or support a particular policy or rule change;
Consider the problem the regulation intends to address;
Provide information directly relevant to the proposed rule changes;
Cite specific sections or clauses in the proposed changes that you support or oppose;
Follow any additional instructions the particular agency spells out at the Federal register;
Are organized with an introduction, background, analysis and conclusion.
Go Beyond Opposition or Support to Consider the Problem
Neither PDE nor WDI USA’s templates go beyond expressing generalized opposition to the rule changes. Nor do they demonstrate consideration of the problem the Dept of Education intends to address; i.e. discrimination on the basis of sexual orientation and gender identity. WDI USA’s template expresses opposition to both the changes and to “gender identity” in general:
I oppose the proposed changes to the Title IX implementing regulations to the extent that they would enshrine so-called “gender identity” in federal administrative law…
Enshrining “gender identity” in the regulations at all obliterates single-sex spaces for women and girls. It is a sexist and racist insult to the woman responsible for the law in the first place.
PDE appears to have a revolving set of templates, all about 3-4 sentences long, expressing general opposition, often addressing a parental issue such as notification about a child’s use of opposite sex pronouns at school. None address specific text in the proposed rule changes. One template directs the Dept of Education to “Please stop the ridiculous overhaul of Title IX and focus on providing a high-quality, non-political education to our children.” Another complains that Title IX “was not created to enforce trendy ‘gender identity’ concepts that were developed in the last few years by a small group of activists.”
WoLF’s template is a significant improvement over the others because it demonstrates understanding of the goals of the proposed changes, and conveys a shared concern about discrimination against persons who are same sex-attracted, or who do not conform to sex-stereotypes, before going on to itemize their objections to the rule changes.
It is a laudable goal to ensure that Title IX grant recipients are not subject to discriminatory treatment on the basis of same-sex attraction, sex-related characteristics such as pregnancy, differences of sex development (DSDs or “intersex”), and sex-stereotype nonconformity. It is also reasonable for the Department to explore ways in which mandatory complaint procedures, staff training, and enforcement standards could be updated to better ensure that the aims of Title IX are carried out effectively and with appropriate due process for complainants and respondents.
Nonetheless, the Department’s proposal directly undermines the central goals of Title IX by incorporating “gender identity” into the scope of Title IX without valid justification.
Remember that the proposed changes are not just about gender identity policy; they’re intended to protect gays, lesbians, and gender-nonconformance in general. If your concern is to correct the effective replacement of sex with gender identity, be clear about that and avoid condemning the entire proposal.
Provide Information Directly Relevant to the Rule Changes
Avoid digressing to rant about other issues you wish to get off your chest or including information not directly related to this specific rule change. The WDI USA template suffers from this problem, providing a history of Title IX and the role of Patsy Mink. It might be useful to include a bit of this background if they went on to cite specific clauses or sections that are cause for concern, and why, but unfortunately, they do not.
Most of the PDE templates do not provide any information, let alone that which is relevant. One derails to discuss free speech and pronouns.
Another version frames parental opposition in an exasperated question (two question marks!) and accusatory statements that do not refer to any of the Department’s proposed changes. Taking a hostile tone is unconvincing and unlikely to change the minds of any readers.
Cite Specific Clauses or Sections and Follow Additional Instructions
Unlike the templates created by WDI USA and PDE, WoLF’s template itemizes specific concerns about the proposed rule changes and is therefore a significant improvement over the others. However, WoLF’s template does not cite text, clauses or subsections. Dept of Education instructions at the Federal Register ask that commenters not only cite chapter and verse, but also order them as they are ordered in the rule change document:
To ensure that your comments have the maximum effect on developing the final regulations, you should identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and arrange your comments in the same order as the proposed regulations.
On July 17, Elizabeth Hungerford hosted a virtual meeting during which she shared her analysis of the proposed changes and identified the specific sections that impact sex-based differentiation. I’ll first summarize her overview of Title IX’s basic framework for sex-based discrimination and permissible differentiation, then share Hungerford’s suggested arguments in a set of bullet points.
While Title IX prohibits discrimination based on sex, it does allow exceptions for “same sex differentiation” in some contexts. As shown below, the statute allows narrowly drawn exceptions for some kinds of single sex schools and a few other contexts, such as same-sex sororities and fraternities. The implementing regulations allow additional exceptions for housing, locker rooms, bathrooms, sports, and scholarships. “Implementing regulations” are rules and procedures developed by a department or agency to implement a law that has been passed by Congress. So, for example, the original statute and implementing regulations permit single-sex bathrooms and locker rooms as long as the facilities for each sex are comparable.
There are two new subsections that mention “gender identity” starting with 34 C.F.R. §106.10, which expands the scope of “sex discrimination” to include sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
34 C.F.R. §106.31(a)(2) introduces a new legal standard - “de minimis harm.” It further states that preventing participation consistent with “gender identity” constitutes more than de minimis harm, as a matter of law. Specifically, the proposed new rule reads:
[A] recipient [of federal funding] must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm, unless otherwise permitted by Title IX or this part.
Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.
What the proposed regulations are saying is that 1) the scope of “sex discrimination” is expanded to include “gender identity;” 2) the sex differentiation permitted by the current regulations may not inflict more than trivial (de minimis) harm; and 3) and that sex differentiation which prohibits an individual from participating in a program or activity that matches their “gender identity” imposes more than trivial harm. Note that the proposed new rules assume greater than de minimis harm as a matter of law, without the need to provide specific evidence to support a finding of harm. Further, the only “harm” considered is to persons with an “inconsistent” gender identity; potential and actual harm to girls and women is not addressed.
Relevant objections suggested by Hungerford include:
Failure to define newly introduced concepts:
“Gender identity” is proposed with no definition (§106.10). This is both vague and overbroad. In the absence of a definition for “gender identity,” we must assume that new subsection §106.31(a)(2) was designed to permit self-identification on the basis of sex.
The new legal standard, “de minimis harm,” is undefined by the proposed regulations and therefore unreasonably subjective.
New subsection §106.31(a)(2) creates a novel legal hierarchy within the umbrella concept of sex by allowing “gender identity” to override legally permissible differentiation on the basis of sex. None of the other proposed inclusions to subsection §106.10 are given dominance to override sex-based differentiation as currently allowed by the regulations:
Sex stereotypes and sex characteristics are not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation;
Sexual orientation is not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation;
Pregnancy or related conditions is not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation.
“Gender identity” must not be given special status to override sex for the purpose of sex-based differentiation as permitted by other subsections.
The second sentence of §106.31(a)(2) is pre-emptive fact-finding that exceeds the Department of Education’s rule-making authority. It is “arbitrary and capricious” rule-making that would fail the “hard look” judicial review because:
It fails to consider or give any weight to precedent supporting a right to single-sex classification as permitted by other subsections, and that single-sex privacy is an important legal interest in many contexts.
It fails to consider “less restrictive, yet easily administered” regulatory alternatives such as single user restrooms, “third spaces,” or other reasonable accommodations for people whose gender identity is inconsistent with their biological sex.
Hungerford’s third bullet point is crucial because, as the Brookings Institute explains:
[L]egal implications elevate the importance of your comments. The “arbitrary-and-capricious” standard is frequently viewed as requiring an agency to demonstrate that it engaged in reasoned decision making.
In summary, the proposed regulations, 34 C.F.R. §106.10 and §106.31(a)(2) :
Introduce but fail to define the concept of “gender identity;”
Introduce but fail to define “de minimis harm” as the new legal standard for finding discrimination on the basis of sex;
Create an unprecedented legal hierarchy that privileges “gender identity” over sex for the purpose of sex-based differentiation as permitted by the regulations’ other subsections;
Exceed the Dept of Education’s rule making authority by pre-emptively fact finding “de minimis harm” for a subset of people who have an undefined “gender identity.”
Organizing Your Comment
Comments should be structured with an introduction, background, analysis, and conclusions. These don’t need to be formally labeled, but you may wish to do so if your comment is very long. Nor do I mean to suggest that you have to write a term paper; rather, the goal is to write an organized comment for easier reading and processing by Department staff.
In the introduction you should explain your interest in the proposed rule changes. This can be as short as a sentence or two. If you are representing an organization, describe your group’s mission and interest in the rule changes. If you have credentials or special expertise, you can note that here. However, “credentials” are not required; all citizens are allowed to comment on rule changes. The goal of “democratization of the regulatory process” is to “collect dispersed knowledge” about how regulatory changes may impact citizens. Agencies review all of the comments, and although they may group similar comments together, they must respond to the comments when publishing their final rules.
The background section is where you identify the subsections in the proposed changes that you wish to address, and your objections to them, as we did above. For example, you might say that while you welcome efforts to protect against discrimination on the basis of sexual orientation, pregnancy, and gender nonconformity, you have concerns about §106.10 and §106.31(a)(2). Specifically, those concerns are - and then list the bulleted comments above.
The analysis section is where you offer your assessment of the problematic sub sections. Those with special expertise might provide a professional analysis, but it is enough for citizens to offer their informed opinions, thoughtful commentary, and perhaps a personal example. Here is also where you state what you would like the Department to do. Be sure to provide citations for any research articles you reference. Finally, conclude by adding a brief sentence or two that recaps your main points.
I suggest leaving out confrontational and accusatory language and maintaining a civil tone in public comments. It’s one thing to express passionate concern about an issue; it’s another to demand to know why the Dept of Education “hates women and girls” as in the WDI USA template. Language one would not use when lobbying a lawmaker is not appropriate or productive here, either. Consider that there may be departmental staff who are questioning, or even privately opposed, to these rule changes themselves. Rather than issue a beatdown over the internet, it’s more helpful to provide them with well-grounded criticisms and arguments that they can take into meetings when revising (we hope!) these proposed rule changes.
Submitting Your Comment
I recommend submitting comments directly through the Federal Register. I prefer to have my comment ready in another document, so I can easily copy and paste into the form. You can submit through the WoLF, WDI USA, or PDE websites, and they do allow and encourage modification of their templates. However, you should be aware that doing so at their sites allows data collection for that organization. For example, both WDI USA and WoLF use Salsa Labs to create their forms; you can read the Salsa Labs privacy policy here. Be aware that your comments are public; anyone can read them. If you tell a story involving someone else, you should probably not use their name in order to protect their privacy.
Remember that your comments matter! And they’re due September 12th. If you find this guide useful, please share widely!
In 2011, in response to a regular United Nations Commission on the Status of Women call for information about human rights violations against women, Elizabeth Hungerford and Cathy Brennan wrote a letter advising of “the proliferation of legislation [in the US] designed to protect ‘gender identity’ and ‘gender expression’ that “undermines legal protections for females.”
Thank you for this. I still find it quite complicated to understand, but will have a go.
This is really helpful! Grateful to both Elizabeth Hungerford and yourself for laying it out so clearly.