June 25, 2022 - 1:29pm

Last week, the US Department of Education’s Office for Civil Rights (OCR) released its proposed new regulations under Title IX, the law enacted exactly 50 years ago that prohibits discrimination “on the basis of sex” in education. In addition to weakening protections for students accused of sexual misconduct — thus moving campuses closer to the draconian Obama-era rules that even liberal and feminist law professors argued were an abomination of justice — the proposed rules would require schools to treat students according to their “gender identity” in virtually all areas of school life.

To those following the tortuous story of Title IX, OCR’s proposed regulations are no surprise. Last October, President Biden reappointed Catherine Lhamon to lead OCR. A duplicitous bureaucrat and crusading ideologue, Lhamon had served in the same role under Obama and was a major force behind catapulting Title IX to the center of the American culture wars. OCR’s decision to redefine “sex” as “gender identity” is troubling for three main reasons.

First, it would further cement school practices surrounding name changes and pronouns that defer uncritically, and often without parental involvement or notification, to students’ gender self-identification. In other words, it would facilitate what in the clinical literature is known as “social transition.” A consistent finding in studies on youth gender dysphoria is that the vast majority of youth who are not “affirmed” in their gender self-identification will desist (meaning come to accept their bodies) over time, while the vast majority who are “affirmed” will persist in their trans identity. The new Title IX regulations will increase pressure on schools to put kids experiencing temporary gender distress on a path toward hormones and surgeries, with life-long and potentially devastating consequences.

Second, the regulations would add incentives for risk-averse school administrators to allow trans interest groups like Human Rights Campaign, Gender Spectrum, and myriad Gender and Sexuality Alliances (GSA) to dictate their institutional culture and policies. Faced with the constant threat of legal action by trans interest groups (especially Lambda Legal, the Transgender Law Center, and above all, the ACLU), schools have decided that the safest course of action is to defer to those who have the capacity and motivation to shame them in the court of public opinion or sue them in a court of law. The effect of OCR’s new rules would be to place schools in the receivership of unaccountable and ideologically extreme special interest groups.

Third, the new regulations mislead the public about a key Supreme Court ruling from 2020, Bostock v. Clayton County. That case dealt with employment discrimination, not education — meaning adults, not children — and was litigated under Title VII, not Title IX. Trump-appointed Justice Neil Gorsuch, who wrote the majority opinion, went out of his way to explain that the Court’s decision did not ensconce “gender identity” as the true meaning of “sex.” Thus, Gorsuch clarified, “we do not purport to address bathrooms, locker rooms, or anything else of the kind” — in other words precisely those areas of policy where the meaning of male and female is relevant and where Title IX is being used to change school policy. Nevertheless, a number of lower courts have interpreted Bostock as requiring the redefinition of “sex” as “gender identity.” The Biden administration is now doing the same.

The Biden administration has been doubling down on the “affirming” approach to youth gender distress at precisely the same time as other countries have been moving in the opposite direction. For reasons both electoral and ideological, Democratic party officials seem uninterested in bringing gender identity policies into conformity with current scientific and medical standards. The new Title IX rules would almost certainly enflame what is undoubtedly one of the biggest public health crises of our time. If there is one silver lining here, it is that the notice-and-comment process, which OCR has agreed to follow, can take months and even years to complete. If a Republican wins the presidency in 2024, he or she would probably kill the proposed regulations on day one in office.