Update – Jan. 9, 2025: A federal district court has rejected the Biden administration’s attempted redefinition of ‘sex’ in Title IX across the country, blocking the administration from enforcing its rule change anywhere. Read the press release.
In 1972, Congress passed Title IX to address sex discrimination and barriers that many women faced in education. One of the greatest effects of this legislation was the subsequent expansion of women’s sports, which has given women numerous opportunities to compete, build confidence, and advance their education and career goals.
But as soon as the Biden administration’s term started, it began a campaign to roll back protections for women and girls in federal law.
On his very first day in office, President Joe Biden issued an executive order redefining “sex” and “sex discrimination” in federal law by expanding those terms to encompass “gender identity.” In other words, the Biden administration is trying to twist legislation intended to help women and girls by redefining what it means to be a woman or a girl—in complete contradiction to biological reality.
In July 2022, the Biden administration announced its intent to apply this new, incorrect definition of “sex” to Title IX through a proposed rule change. And despite formal comments submitted by Alliance Defending Freedom and many others about the consequences of such changes, the administration formally adopted them in April 2024.
When biological differences between men and women are ignored, it is women who suffer the most. If Title IX is to continue offering opportunities and protections for women and girls, it must continue to reflect the intrinsic differences between the sexes.
Title IX was passed as part of the Education Amendments of 1972. It was signed into law by President Richard Nixon on June 23, 1972.
Title IX was intended to eliminate obstacles many women faced in education, especially in higher education. The main provision of Title IX states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
In practice, Title IX banned most sex discrimination in college admissions, required colleges and universities to prohibit sexual harassment on campus, allowed women greater access to financial assistance, and paved the way for the later expansion of women’s sports.
Title IX was seen as a follow-up bill to the Civil Rights Act of 1964. Among other provisions, the Civil Rights Act prohibited discrimination on the basis of race, color, religion, sex, or national origin in the areas of employment and public accommodation.
But the Civil Rights Act did not address sex discrimination in federally funded programs.
President Lyndon Johnson later signed executive orders to try to address these issues, but the federal government did not strictly enforce them in education. So by 1970, legislators began devising solutions around the same time the Equal Rights Amendment was being debated in Congress.
In the early 1970s, Hawaii Rep. Patsy Mink, with contributions from Oregon Rep. Edith Green and Indiana Sen. Birch Bayh, authored and sponsored a bill to ban sex discrimination in federally funded education programs.
After negotiations, exemptions were made for private institutions and single-sex (all-male or all-female) education institutions.
This bill later became Title IX of the Education Amendments of 1972. Since then, numerous pieces of legislation have sought to limit the scope of Title IX’s applicability, while court cases and “dear colleague” letters from the executive branch have sought to expand Title IX’s scope.
While some of the specifics of Title IX have been debated, one thing about it is clear: it has helped increase educational opportunities for women and girls. As an example, the percentage of women between the ages of 25 and 34 who have at least a college degree has more than tripled since 1968.
One of the greatest effects of Title IX has been on women’s sports.
Before Title IX was passed, male athletes vastly outnumbered their female counterparts. According to the Women’s Sports Foundation, in 1972, boys outnumbered girls 3.66 million to 300,000 (more than a 12:1 ratio) in high school sports. Fifty years later, that ratio had shrunk to about 4:3 (4.5 million boys to 3.4 million girls).
Similar changes can be seen in collegiate athletics. In 1972, male athletes outnumbered female athletes 170,000 to 30,000 (almost a 6:1 ratio). In 2022, that gap shrunk to just under 4:3 (275,000 men to 215,000 women).
Selina Soule, Chelsea Mitchell, and Alanna Smith are three female athletes who have stood up to unfair treatment.
For decades, Title IX has been hailed for banning “sex discrimination” in education. Ironically, though, the plain meaning of the word “sex” is now being called into question. Many, including the Biden administration, are wrongly advocating that “sex” also includes “gender identity.”
In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that an employer who fires an individual for identifying as gay or transgender discriminates based on “sex” in violation of Title VII of the Civil Rights Act of 1964. That was a new expansion of what Title VII meant and covered. But since then, the Biden administration has incorrectly sought to expand the Court’s ruling beyond employment discrimination and apply it to Title IX, which covers educational programs like sports, showers, and locker rooms.
But it is clear from the text of Title IX (as it is in the text of the Civil Rights Act of 1964) that sex meant biological sex, male and female, and that the government can sometimes take a person’s sex into account to ensure equal opportunities. For example, Title IX allows schools in some cases to change “from being an institution which admits only students of one sex to being an institution which admits students of both sexes.”
Not only do provisions like this speak of “the” other sex or “both sexes,” rather than “another” sex or “all sexes,” but they also use terms like “father-son” and “mother-daughter” which are rooted in biology. Title IX says nothing about gender identity.
Unfortunately, the Biden administration’s attempted redefinition of “sex” in Title IX turns back the clock on women’s opportunities, erodes student privacy, and threatens women’s sports. The changes are set to go into effect on Aug. 1, 2024, but Alliance Defending Freedom has worked to file a series of lawsuits challenging them.
ADF strongly opposes any effort to redefine sex in federal regulations inconsistent with the text of Title IX itself for several reasons:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.
Lainey Armistead intervened to defend a women’s sports law in West Virginia.
Dr. Nicholas Meriwether’s lawsuit resulted in a huge victory for free speech.
We are all equal, but we aren’t all the same. Title IX was premised upon the reality that men and women are different and that these differences matter.
When biology is ignored, and words like “sex” lose their meaning, it is women and girls who bear the brunt of that mistake.
Title IX should continue to remain a law that serves to protect opportunities and safety for women and girls.
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