The proposed regulation is an extension of the Biden administration’s reshaping of Title IX’s definition of sex discrimination include “gender identity,” a far-left belief that people are able to choose which sex they identify apart from biological reality. The regulation description states that the rule would “set out a standard that would govern a recipient’s adoption or application of sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity.”
“The proposed regulation would clarify Title IX’s application to such sex-related criteria and the obligation of schools and other recipients of Federal financial assistance from the Department (referred to below as “recipients” or “schools”) that adopt or apply such criteria to do so consistent with Title IX’s nondiscrimination mandate,” the regulation summary states.
The 25 Republican governors who wrote to Cardona told him they are “gravely concerned about the impact that the Department’s wholesale reinvention of Title IX’s terms would have on states’ ability to enforce their laws and policies as written.”
“Indeed, under threat of denying essential school funding, the Department’s proposed regulation would attempt to coerce compliance with an uncertain, fluid, and completely subjective standard that is based on a highly politicized gender ideology,” the letter reads. “Most troubling, the proposed regulation would turn the purpose of Title IX on its head and threaten the many achievements of women in athletics.”
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The governors asked Cardona to withdraw or delay the rule until the Supreme Court “can address the questions raised in several pending cases that are challenging this administration’s expanded reading of Title IX.” They also argued that the proposed regulation lacks foundation in established law and lacks Congressional authority.
“Undeterred by plain English, the Department invents new categories solely based on a student’s “gender identity” — a term not used in Title IX. This overreaching interpretation exceeds the Department’s Congressionally granted authority,” the letter reads. “Not only does the Department lack the authority to unilaterally re-write Title IX, such a regulation would disrupt states and schools and eviscerate the lived experience and achievements of generations of courageous women. Indeed, and contrary to the Department’s claim, this regulation will not provide ‘clarity’ but create confusion.”
The regulation summary notably cites President Joe Biden’s executive order issued in January of 2021 which set out the Administration’s policy “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII [of the Civil Rights Act of 1964] and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”
“Executive Order 13988 directed the Secretary of Education, in consultation with the Attorney General, to ‘review all existing orders, regulations, guidance documents, policies, programs, or other agency actions’ promulgated under any statute or regulation that prohibits sex discrimination for their consistency with the stated policy,” the regulation page reads.
The regulation information page states that the Department of education “recognizes that prevention of sports-related injury is an important educational objective in recipients’ athletic programs and that–as courts have long recognized in cases involving sex-separate athletic teams–fairness in competition may be particularly important for recipients in some sports, grade and education levels, and levels of competition.”
“The Department anticipates that some uses of sex-related eligibility criteria would satisfy the standard in the proposed regulation in some sports, grade and education levels, and levels of competition,” the page states.
The governors noted that defending the “many hard-fought, athletic achievements over the last half century is far more than a matter of safety for female athletes.”
“This administration apparently sees no irony that its policies validate an average male athlete stealing the recognition from a truly remarkable female athlete whose lifelong athletic discipline and achievements are discarded based on a deliberate misreading of a law whose very purpose was to protect, preserve, and encourage women’s athletics,” the letter reads. “The scandal of 1970’s and 1980’s East German women athletes pales in comparison to the logical result of this administration’s relentless pursuit of draconian enforcement of its gender ideology.”
May 15, 2023 is the last day the public is able to submit a comment about the proposed rule.
The letter was led by Gov. Tate Reeves (MS). Additional signatories include: Govs. Kay Ivey (AL), Mike Dunleavy (AK), Sarah Sanders (AR), Ron DeSantis (FL), Brian Kemp (GA), Mike DeWine (OH), Kim Reynolds (IA), Brad Little (ID), Eric Holcomb (IN), Mike Parson (MO), Greg Gianforte (MT), Jim Pillen (NE), Doug Burgum (ND), Chris Sununu (NH), Joe Lombardo (NV), Kevin Stitt (OK), Henry McMaster (SC), Kristi Noem (SD), Bill Lee (TN), Greg Abbott (TX), Spencer Cox (UT), Glenn Youngkin (VA), Jim Justice (WV), and Mark Gordon (WY).