Now Is the Time to Oppose Biden’s Title IX Rule

Now is the time for all good citizens to oppose Biden’s Title IX rule. They can do this by making and speaking at an online appointment at the Office of Information and Regulatory Affairs (“OIRA”) within the Office of Management and Budget (“OMB”), the final step in the federal rulemaking process. The Education Department has already received its public comments—so many, in fact, that the rule’s release has been delayed three times.

Title IX is the 1972 Congressional ban on sex discrimination in federally funded schools. Over the years, however, it’s become unrecognizable thanks to “redefinitions” by bureaucrats in DC and feminists on campus. In the 1980s, they stretched the law’s application from academics to sports, mandating more funding for women’s teams regardless of female interest, which meant less money for men’s. Then they redefined “discrimination” to encompass sexual misconduct, which included everything from dating misunderstandings to alleged rape or sexual assault.  The latter are crimes, of course, best handled in court, not on campus, and the former can include any misstep between a male and female student—for example, he asks her out… or he doesn’t ask her out—either can become a Title IX complaint if the offended student says her studies have been adversely affected. Because the Title IX office needs complaints to rationalize its existence, its staff want to act as police, judge, and jury in campus dating wars. They’ve railroaded and expelled hundreds of students—mostly male—in their “campus kangaroo courts,” where guilt was simply presumed.

These campus due process disasters exploded in the Obama years when then Title IX Czar Catherine Lhamon—again in this position for Biden—enforced an infamous 2011 “Dear Colleague Letter” (“DCL”) directing schools to “find” campus sexual misconduct or else.  The sham proceedings that followed resulted in hundreds of successful lawsuits against schools for due process violations. That chaos ended, however, in 2017, when Trump’s Education Secretary, Betsy DeVos, rescinded the DCL and formally promulgated a new Title IX regulation that required basic due process for accused students, such as the right to a live hearing, to see evidence, and to cross-examine witnesses. It also mandated supportive measures for any complainant.

But Biden announced his intent to abolish this rule as soon as he took office. Lhamon’s team published its proposed replacement rule in the Federal Register in the summer of 2022, which is now expected out next month.

Their proposal not only guts due process gains but again redefines terms—this time, redefining the term “sex” itself to include same-sex orientation and gender ideology.

The due process attack is mostly in allowing informal, “individual meetings” to determine a student’s guilt or innocence.  This means no written record, no live testimony, no cross-examination, and therefore no transparency. For groups concerned about fundamental fairness, such as the National Association of Scholars, this is a nonstarter.  The NAS 2020 Report on Title IX found that staff in charge of these cases are as far from impartial arbiters as one could imagine:  Of the 57 surveyed, for example, the vast majority came from heavily politicized disciplines such as “Women’s Studies” or “Gender-based violence;”  while only one had real, in-court experience defending due process rights.  What’s more, the “individual meeting” is reminiscent of the “single investigator” model used during Lhamon’s last tenure, which caused all the problems. Incredibly, instead of limiting the power of these officials, Biden’s rule is more like a blank check for them.

The redefinition of “sex” to include same-sex orientation and gender ideology is also unacceptable, representing obvious administrative overreach as this redefinition fundamentally changes the law’s meaning from equal educational opportunity to promotion of left-wing sexual politics.

Even more obnoxious, Biden bureaucrats are apparently already acting as if these redefinitions are law. Specifically, they investigated and settled with California’s Taft College for a supposed Title IX offense when one of its professors did not use a pronoun demanded by a male student who later claimed to be female.  So Biden officials are pretending that federal law requires Americans, right now, to use nonsensical pronouns if a gender ideologue demands this, even as these same officials are, right now, proposing this redefinition in the rule-making process (where they’re encountering massive resistance, no less!) Congress should investigate this unprecedented, unlawful hubris.

Perhaps such Title IX antics should not surprise: After all, Biden’s January 2021 Title IX statement was reinforced by Executive Order 14021, requiring that the entire federal government review its policies to ensure that the word “sex” is interpreted to mean same-sex orientation and gender ideology.  In effect, the Biden administration is trying to change the law (a matter for Congress, the legislative branch, not the executive) to promote every off-the-wall sexual inclination, from cross-dressing to genital mutilation, except healthy romance between men and women leading to stable marriage and family life. Why?  Because stable homes produce stable children who become strong and patriotic citizens. And that makes for a strong and stable country.  Biden’s euphemistic talk in government documents of “non-discrimination,” “protection,” and “respect and dignity” for sexual pathology is, in reality, cover for the destruction of the American home and therefore of America’s future.

But to carry out this planned ruin of the United States, Biden officials will run afoul of citizens’ natural and constitutional rights. For example, no governmental actor, whether a Biden bureaucrat or a Title IX staffer, can demand that citizens pretend that a man is a woman, or a woman is a man, or that they regard homosexuality as the same as heterosexuality.  Such demands constitute not only forced speech but also crude attempts at thought control regarding fundamental morals and sexual ethics, most of which are informed by religious tradition. Both the right to free speech—the opposite of forced speech—and the right to free exercise of religion—the opposite of thought control—are enshrined in the First Amendment to the United States Constitution and are arguably the most important liberties Americans have.  Citizens are not going to let Biden trample over these rights.

Fortunately, several state attorneys general are not only monitoring the Biden administration’s legally dubious actions but are also suing to restrain its overreach, including in the Title IX space.  These state-level officials should be commended for standing watch and doing their part.

But citizens themselves also need to step up to stop Biden’s lawlessness. They can do that by speaking their piece in an OMB online appointment.

Because now is the time for all good citizens to oppose Biden’s Title IX rule.

Teresa R. Manning is Policy Director at the National Association of Scholars, President of the Virginia Association of Scholars and a former law professor at Virginia’s Scalia Law School, George Mason University.

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About Teresa R. Manning

Teresa R. Manning is the policy director at the National Association of Scholars and a former law professor at Scalia Law School, George Mason University.

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