The draft regulation released by the Department of Education allows schools to keep fair, single-sex sports- but only if the schools collect funds to pay lawyers and expert witnesses every time they exclude an opposite-sex “transgender” youth from a single-sex team.
Republicans have already announced their opposition to the regulation, which describes single-sex sports as discriminatory against youths who insist they have become members of the opposite sex:
The draft regulation is not in force yet. Once finalized, it can be brought to a judge, likely starting a legal battle that will be decided by the nine justices of the Supreme Court. The nine justices have already reinterpreted existing law to allow employees in a company to force other employees and managers to treat them as members of the opposite sex, regardless of reality or appearance.
The draft regulation says Americans’ recognition of obvious distinctions between the vast majority of male and female youths is not enough to justify the “exclusion” of opposite-sex players:
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[School rules] that assume all transgender girls and women possess an unfair physical advantage over cisgender [sic] girls and women in every sport, level of competition, and grade or education level … would not comply with the Department’s proposed regulation.
The regulation says a school can protect a single-sex team from an unfair opposite-sex player, or the risk of opposite-sex injury, but only under a specific set of school justifications that:
…are substantially related to ensuring fairness in competition in that particular sport at the applicable level of competition and grade or education level [emphasis added].
Deep-pocketed and ideological pro-transgender groups could deter nearly all ordinary schools from trying to protect their single-sex teams by dropping expensive lawsuits on just a few schools.
So the far-reaching rules would force all schools to budget for the cost of hiring lawyers and expert witness professionals each time they exclude a boy from an eighth-grade girls’ basketball team, a teenage male from a tenth-grade girls’ swim team, or a man from a 12th-grade girls’ volleyball team.
For example, that rule would require each school budget for eight lawsuits if just one “transgender” child tries out for two sports in the four years of high school.
Biden’s agency also sets a high bar in the courtroom to prove the injury risk or the fairness concern. The regulation says:
As with the single-sex classes regulation, this proposed regulation is informed by case law interpreting the Equal Protection Clause, which requires public schools to demonstrate that any sex-based classification they seek to impose is substantially related [emphasis added] to the achievement of an important governmental objective.
According to Yale Law School, the “substantially related” legal hurdle requires the schools do more than show their decision is rational:
As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than the rational basis test. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.
Many polls show that Americans — and swing voters — overwhelmingly oppose the transgender threat to single-sex sports and youths’ normal sexual development through puberty.
In March, Breitbart News reported:
Most voters agree that changes to Title IX regulations — namely, allowing males to compete in female sports — hurts women, a Summit Ministries/McLaughlin & Associates survey found.
Among those who offered a response, more than three-quarters, 77 percent, said it is “harmful,” while just 23 percent said it is “helpful.”
While most Republicans (78 percent) and independents (61 percent) said the changes have been harmful, just a plurality of Democrats (42 percent) said the same.