The U.S. Department of Education has proposed a new rule under Title IX that would define sex as an individual’s gender identity, rather than biological sex. This change could have significant implications for women’s rights and fairness in athletic competitions. Critics argue that the change would force schools and colleges to adopt “unscientific gender ideology” and create unfair competition in sports between males and females.
The proposal comes after years of controversy surrounding transgender athletes participating in women’s sports. Opponents argue that these individuals have an inherent advantage over their female counterparts due to biological differences, such as muscle mass and bone density.
In response to the proposed rule change, Alabama, Florida, Georgia, South Carolina, and other groups filed a lawsuit against the Department of Education in the U.S. District Court for the Northern District of Alabama. They argue that the changes would force “unscientific gender ideology” on schools and colleges.
Swimmer Riley Gaines, who tied with transgender swimmer Lia Thomas at the 2022 NCAA Women’s Swimming Championship, expressed her concerns about the new rule. She argued that it could allow men to take academic and athletic scholarships from women and force students to use a transgender student’s preferred pronouns.
Some conservatives believe that the proposed rule change already includes language regarding athletics, which would allow males to compete in female sports. State laws banning males from participating in women’s and girls’ sports have been adopted by some two dozen states.
While the Supreme Court has not taken up cases involving transgender athletes, it has addressed issues concerning bureaucratic power. In 2022, the court ruled that the Environmental Protection Agency lacked the authority to impose greenhouse gas emission regulations on electricity producers due to its overreach in attempting to use the Clean Air Act to force power plants to shift from coal to wind and solar.
Opponents of the new rule argue that it violates the separation of powers by allowing the executive branch to unilaterally redefine terms used by Congress in legislation. They believe that this could be yet another blow to the administrative state if the case reaches the Supreme Court, given its previous ruling on the EPA’s authority.