". . . and having done all . . . stand firm." Eph. 6:13


Biden Rule Would Strike Down State Girls’ Sports Protection Laws

April 7, 2023

On the eve of two major religious holidays, the Biden administration unveiled a proposed federal regulation that would override state laws protecting school-aged female athletes from having to compete against, or get undressed in front of, men. The proposed federal rule would bar any federally funded educational institution — from elementary school through college — from enforcing a “categorical ban” on males who identify as female from taking part in girls’ sports.

Biden officials say the executive action allows students to participate in sports teams “consistent with their gender identity” — e.g., boys who identify as girls would compete against girls. Secretary of Education Miguel Cardona said such opportunities confer “benefits to physical and mental health” and will “build healthy habits that last a lifetime.” But former female collegiate swimming champion Riley Gaines testified that, after being forced to see the genitalia of male swimmer Lia Thomas and change in front of him, the women on the team “felt uncomfortable, awkward, embarrassed and even traumatized by this experience.”

“This rule is a way for the Biden administration to look like they’re concerned about protecting women and girls’ sports while essentially asserting ‘transgender’ athletes as a privileged class of athlete,” Meg Kilgannon, senior fellow for Education Studies at Family Research Council, told The Washington Stand.

The Biden administration says the rule will allow schools “flexibility” to design sports policies targeted to their own circumstances. But pro-family advocates say the administration intends to change the policy by threatening certain federal intervention over ill-defined offenses. 

“Without a doubt, institutions are going to err on the side of ‘inclusion,’ because they fear the wrath of the Education Department — thus, achieving the Department’s end goal while allowing them to maintain plausible deniability that they coerced districts into doing so,” agreed Nicole Neily, founder of Parents Defending Education. PDE Director Erika Sanzi accused Biden of acting as a “gender czar, unilaterally unraveling the purpose of Title IX.”

The proposal tightly limits the instances in which schools can limit sports to participants of comparable strength and physical build. The Biden administration’s rule requires schools to tailor protections of female athletes “for each sport, level of competition, and grade or education level.” Locking men out of the women’s locker room can only be justified if it is “substantially related to the achievement of an important educational objective,” and schools must “minimize harms” to any student barred from participating against the opposite sex.

Biden officials argue that any full ban of men participating in women’s sports would violate Title IX, a civil rights measure adopted by the Nixon administration in 1972 that requires schools to provide equal treatment to male and female sports. It says nothing about transgender identity.

“For more than 50 years, Title IX has allowed women and girls opportunities that were previously denied to them. Now, if the Biden administration gets their way, sports will be divided into a team of men and a team of folks who used to be men, while women are sidelined from the opportunity to compete,” said Senator Marsha Blackburn (R-Tenn.).

Males had won at least 30 female sports championships between 2003 and 2022. “The future of women’s sports is at risk, and the equal rights of female athletes are being infringed,” said Concerned Women for America President Penny Nance. In reaction to this growing trend, lawmakers in 20 states have passed legislation safeguarding women and girls sports experience from male appropriation.

“The Department of Education’s rewriting of Title IX degrades women and tells them that their athletic goals and placements do not matter,” said Alliance Defending Freedom Senior Counsel Christiana Kiefer. “The Biden administration’s proposed rules are a slap in the face to female athletes who deserve equal opportunity to compete in their sports.” Every woman deserves “respect and dignity,” she said.

A Washington Post poll from last June found that a majority of Americans oppose men taking part in women’s sports.

Yet the Obama-Biden administration began interpreting civil rights laws as though they covered sexual orientation and gender identity and threatened to withhold federal funds from schools that did not follow their guidance. The Supreme Court’s 2020 opinion in Bostock v. Clayton County, written by Trump-appointed Justice Neil Gorsuch, said that Title VII of the 1964 Civil Rights Act covers homosexuality and transgender identity, but other civil rights legislation would have to wind its way through the courts. Last year, the Biden administration tried to tie federally funded lunch programs to schools’ acceptance of gender ideology.

The new rule — announced by the Biden administration on Thursday, the first full day of Passover and the last day of business before the Easter weekend — reduces the potential age of application to at least kindergarten. “It very dangerously refers to the gender identity of elementary age students. This will normalize the idea that young children can identify as the opposite sex paving the way for more interventions, younger medicalization, and younger surgical treatment,” Kilgannon told TWS. “All this adds up to a very dangerous rule proposed rule.”

If Democrats get their wish, this or a similar regulation will apply to federally funded “universal pre-K” programs. The proposed regulation notes that 11,661 local education agencies “serve students in pre-kindergarten or kindergarten through 12th grade.”

The Biden administration made the proposal public the same day that the U.S. Supreme Court refused to lift a lower court order blocking West Virginia’s female sports protection act from taking effect. The short order, from which Justices Samuel Alito and Clarence Thomas dissented, will allow the temporary injunction to remain in place until the final court ruling.

When the Biden administration officially proposes the rule, citizens have 30 days to comment before officials make a final decision to adopt it. Experts say conservatives must act with as much determination as the other side. “We will have 30 days to comment from the time it is published,” said Kilgannon, “and we are really going to need our constituents and allies to make it clear to the Department of Education that we don’t want any part of this rule.”

Even the rule’s “attempt at paying lip service to women and girls sports is likely to upset the transgender activists. We should expect them to hit the comment portal hard with comments demanding” more sweeping action, concluded Kilgannon. “This is why it’s going to be so important for Christians to make their voices heard on behalf of children, especially women and girls.”

Ben Johnson is senior reporter and editor at The Washington Stand.