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‘Sex-based discrimination is an objective reality test, which should make enforcement easier,’ expert says
The U.S. Department of Education recently rescinded the Biden-era Title IX interpretation, restoring a biological standard for sex-based protections with direct consequences for how schools handle single-sex spaces, sports, and discrimination claims, a legal scholar told The College Fix.
In a news release, the department announced the formal rescission of “the Biden Administration’s illegal regulation implementing Title IX.”
“Today’s action officially reinstates the first Trump Administration’s 2020 Title IX rule in the Code of Federal Regulations,” the release states.
The department stated that the purpose of this rescission is “to protect women’s safety, dignity, and educational opportunities in schools that receive federal funding.”
William Jacobson, the founder of the Equal Protection Project, told The Fix that the change is a return to Title IX’s original purpose of protecting single-sex spaces. EPP is a legal advocacy initiative focused on opposing race- and ethnicity-based discrimination in education.
“The Biden administration’s rewrite of the Title IX rules stripped Title IX of its primary purpose, to protect and provide females with equal educational opportunities,” Jacobson told The College Fix.
He said that “by redefining females to include males who identify as females, the Biden administration undermined the original goal of Title IX and replaced a biological-based criteria with a transitory and shifting feeling-based standard.”
This had tangible, real-world consequences, as females were “endangered by this arbitrary and political agenda,” Jacobson said.
Rescinding the Biden rewrite brings clarity to the issue, leaving “no great mystery here,” he said.
“Title IX prohibits sex-based discrimination in education. Going beyond that into feeling-based identification strayed from the purpose of Title IX and muddied the waters,” Jacobson said.
The Fix asked about how this decision could be reconciled with the Supreme Court’s holding in Bostock v. Clayton County, which ruled that people cannot be fired based on sexuality or gender identity.
In response, Jacobson told The Fix that “Bostock pertained to a different statute regarding employment discrimination, and was wrongly decided (though it’s the law now).”
“There is a tension, but the Bostock court made clear that its ruling was limited to that context, so the tension as to Title IX is mostly theoretical,” he said.
Jacobson concluded that, “Sex-based discrimination is an objective reality test, which should make enforcement easier.”
“To the extent schools try to justify discrimination against females based on how some males identify, these new rules make such actions untenable legally,” Jacobson said.
However, the Human Rights Campaign, an LGBTQ+ civil rights organization, strongly condemned the decision in a news release, calling it a “monstrous injustice.”
“Title IX is, quite simply, about protecting students and ensuring that they are safe from abuse, harassment, and discrimination while they pursue their education. But Donald Trump and his cronies aren’t interested in any of that,” HRC President Kelley Robinson said.
She argued that girls and LGBTQ students will have weaker protections against sexual violence.
“We know who will be hurt: women, girls, and others who are vulnerable to sexual harassment, assault and abuse — including LGBTQ+ students,” Robinson said.
She also criticized the administration for “abruptly” dropping the rule without a comment period.
Title IX prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance.
The Biden administration’s interpretation of this law in 2024 incorporated gender identity into the language of “discrimination on the basis of sex,” meaning that programs receiving federal financial assistance could not create separate areas based on biological sex.
Following the department’s rejection of the Biden administration’s interpretation, Title IX now requires programs to “establish sex-separated sports and intimate facilities, restore to females their titles misappropriated by male athletes, and apologize to female athletes for their prior policies allowing sex discrimination.”
The Education Department also joined forces with the U.S. Department of Justice to create a special investigations team “consisting of expert attorneys and investigators to ensure consistent investigations and expeditious enforcement for Title IX violations.”
