Title IX of the Education Amendments of 1972 is a federal law that prohibits sex-based discrimination in schools. It is currently under attack by the Biden Administration, who wants to remove protections for biological women in sports and other opportunities. Sarah Parshall Perry explains why this is happening and what we can expect in the future.

John Popp: From The Heritage Foundation, this is Heritage Explains.

Crystal Bonham: Pretty much any diving catch, I could replay it in my head. It’s just, it’s epic. When you’re tracking down a ball and you’re playing the geometry, you’re thinking about who’s on base.

Mark Guiney: This is Crystal Bonham, Senior Advisor for Communications at The Heritage Foundation. She, like many women in the professional world, is a former high school and college athlete who spent many days playing her softball position, center field.

Bonham: Even before the ball leaves the pitcher’s hand, you’re thinking about the strategy, right? I know what pitch is coming because the catcher called it. There’s different options for where this hitter may place the ball. So what am I going to do if the ball comes to me?

Ball’s in the air. You’re tracking it down. You’re thinking about the geometry and the physics of all of it, where the runners are, what you’re going to do. There’s literally nothing better than running back to the wall to catch a ball, and then, having to throw home is the most epic. But throwing a runner out at the plate is just, you never forget, anytime you do that.

Sports from an early age really taught me the value of teamwork. It taught me how to work with others who may not see things my way. Consensus building, really, and that has really translated not only into my friendships and my family life but also my professional life, right? I think that sports really taught me the value of being gritty, putting in the works. I’ve been willing to be bold and speak up and really have a seat at the table because of those experiences. So, for me, it was everything.

Guiney: One would think that there would be universal support for these kinds of experiences for girls, but it turns out, that is not the case. The law that enshrined legal protections for women’s sports, Title IX of the Education Amendments of 1972, is currently in danger. This is due to a rising belief on the political left that biological sex does not matter. What determines whether someone is male or female, they say, is subjective. Therefore, biological men can lay claim to all of the spaces set aside for women, including sports.

Bonham: Nearly every year I was in high school, we would have a fun, little scrimmage, girls’ softball against boys’ baseball. And even at that age, the men are just far more developed than the women. It’s uncomparable. And we would play them for funsies every year. They would crush us. We’d modify the game, the boys would just crush us, and that’s not fun.

Guiney: In order to understand the ins and outs of this situation, I sat down with Sarah Parshall Perry, former college athlete and Senior Legal Fellow at the Meese Center for Legal and Judicial Studies here at The Heritage Foundation.

Sarah Parshall Perry: Title IX, everyone thinks of it as a sports law. And yes, it does have sports application, but all it guarantees is sex equality and education. No federally funded education program can permit discrimination based on sex. It was passed as part of the Education Amendments in 1972. It was sort of the crowning achievement of the feminist movement. It applies to everything from admissions programs to sports, as I mentioned, to housing accommodations to scholarship opportunities. Every education program that receives so much as a dollar of federal funding, either directly or indirectly, is subject to Title IX’s guarantees.

Guiney: Why is it called Title IX? That feels like an odd title for a law.

Parshall Perry: Well, ultimately, it is part of the civil rights package that was passed. There were subsequent amendments, and they were numbered numerically. So they followed in very short order. Remember, Title VII, of course, is employment discrimination that guarantees equality in any education or any employment environment of more than 15 employees. We saw that in the Bostock case, for example, Title VII was an issue there. That’s part of the civil rights packages of bills, as part of the Civil Rights Act of ‘64. Title VI, of course, prohibits race discrimination in education. So they’re multiply-sequenced civil rights provisions as part of the entire canon that we see in federal law.

Guiney: So if Title IX came into law in 1972, it’s been around for well over a generation, what are some of the effects that it’s had?

Parshall Perry: For example, it has generally increased the participation of women in scholastic sports by 1400%. It’s increased educational opportunities, allowed women to get into, formerly, single-sex admissions programs. It’s given them more opportunities to compete for scholarships, opened up graduate degrees to them. And because we know education is part of that success sequence in life, it’s opened up a whole host of new professional opportunities for these women. In fact, 92% of female executives have played scholastic sports. So these are women who’ve not only been competitive on the field, they are now competitive in life and in business. So it has had tremendous guarantees of equality that have played out in real time for all women.

Not only have I benefited from it, my daughter’s benefited from it as well. She is a varsity athlete. She’s a varsity volleyball player right now in a federally funded education program. She’s benefited from it as well. I benefited from it as a high school varsity athlete playing softball, continued to play sports into my collegiate years. I was allowed the opportunity to go to law school. Graduate school was an opportunity that wasn’t available for women until the 1972 Title IX Education Amendments. That’s significant. That’s not only impacted me individually, it’s impacted my own children, and it’s allowed me an opportunity to go on to get a career that I love because of an education program I was finally granted access to. That is one of the reasons I’m so passionate about this, and I’m hoping the administration will finally see the light and pull its plans for modification.

Guiney: So, in the last year or two, there have been two major proposed changes to Title IX.

Parshall Perry: Correct.

Guiney: Can you walk us through those changes?

Parshall Perry: So any federal governmental agency, as part of the executive branch, can issue a rule that is ultimately a clarification of any ambiguous, underlying provision in federal law. So the previous administration, the Department of Education, released its own Title IX rule. One of the things, when I was there that we clarified, was that sexual assault and sexual harassment are forms of sexual discrimination under Title IX. We wanted to make sure that every opportunity was truly equal and that women or men who were sexually assaulted or harassed would have an opportunity for an equal environment and could bring a Title IX claim. That was our rule.

This administration has issued two separate rules, one last year, one this year, on Title IX. This year was this sports rule. It was athletics only. It was billed as a compromise to the previous rule. The previous Title IX rule, which came out last year in June, essentially said that all bathrooms, admission programs, scholarship opportunities, extracurricular opportunities had to be opened to anyone based on gender identity. And in addition, it eliminated all of the clarifications the previous administration had provided on sexual assault and sexual harassment and took away all the due process guarantees that would take place in these campus investigations.

It also muzzled organizations who didn’t toe the line on the woke orthodoxy. Christian university, for example, who might accept federal funding recipients through, for example, a Pell Grant or a Stafford Loan, was also subject to Title IX, but for example, that might run contrary to their religious beliefs and their traditional orthodoxy. Incredibly problematic. The administration received over 400,000 public comments on this between the first rule and the second rule. That is a significant pushback from the public. It is one of the reasons, I think, we’re looking at what happened today, which is a delay of both of those rules.

Guiney: And what do you think is the cause of that delay?

Parshall Perry: Well, I think, not only the number of comments but the number of public opposition, from organizations, from all sides of the political spectrum. In fact, even liberal pundits were coming out in favor of biological sex, and keeping, for example, women’s sports’ sex separated to keep that guarantee of sex equality, 63% according to an NPR poll. This is not a conservative outlet. This is NPR. 63% of those polled at NPR said, “We don’t want biological men in women’s scholastic sports. It is inherently unequal.” So I think that is a part of the public pushback, the public comments that were received, which is part of the rulemaking process that any federal agency can engage in. They open these proposed rules up to the public, so the public can weigh in.

And then, I think the public opposition, from everyone like presidential candidates to, for example, elected members of Congress to athletes themselves, professional former athletes, and even liberal pundits, all have agreed that these rules are patently unfair, and that the definition of sex under federal law should be male and female. And in fact, even though the Biden administration says otherwise and relies on the Bostock versus Clayton County decision from 2020, Neil Gorsuch, Justice Gorsuch began his opinion with actually saying, “We recognize that sex is biological distinctions between men and women.”

Guiney: So it seems like the point at issue is whether there’s a fundamental difference between men and women. The Biden administration and its supporters say there isn’t.

Parshall Perry: Absolutely. That is the biggest, I would say, fundamental flaw with the rule. There are obviously free speech, religious freedom, sexual assault, sexual harassment, due process considerations. Every single educational program will be affected by this Title IX rule change. But really at the tip of the spear is the expansion of the definition of sex, which has always been understood since 1972, because this was, again, a feminist achievement. They worked incredibly hard to make sure women and men had equal treatment in public education. It is ultimately, I think, the tip of the spear on this pushback effort and why the population has been so vehemently opposed to this rule change. It has absolutely damning consequences for other aspects of federal law.

There are other agencies that enforce Title IX. For example, the USDA enforces Title IX as well. And we heard pushback after the school lunch program. The federally funded school lunch program was also being held hostage by forcing, under Title IX, schoolrooms to put up posters about nondiscrimination based on gender identity. It was literally holding school lunch money hostage under Title IX for schools who didn’t toe the line on gender identitarianism.

So we’ve seen a significant amount of scholarship on this. We have already seen a federal judge enjoin these proposed rules, the guidance coming from the federal Department of Education. I am very certain, once we see these rules eventually released, we’re going to see a flood of federal lawsuits, because 23 states have Fairness in Women’s Sports bills already on the books. That’s a conflict between state law and federal law, and it sets up perfectly a battle for the Supreme Court.

Guiney: So what’s the next step with these rule changes?

Parshall Perry: So the Office of Management and Budget, which is the agency that needs to rubber-stamp, that’s got to approve and review every one of the proposed rules that comes through from an executive agency, has 120 days to review these rules. Now, these are two massive rules, hundreds and hundreds of pages long. OMB hasn’t even gotten the proposed rules yet. So that 120-day clock has not even begun to run. Let’s assume they get it immediately. They get it on Tuesday of next week. That puts the earliest date for release at the end of December or the beginning of January of next year, which goes right into the middle of the hotly charged political election season. So there’s no doubt in my mind, we will see a lot of discussion on this going into the 2024 elections.

Guiney: And do you say that, meaning, that the administration is going to ease off on the changes they want to make to Title IX, knowing they’re politically unpopular? Or do you think that they’re going to push forward even harder?

Parshall Perry: It’s interesting. I think they’re going to go harder. And I’m going to tell you why this is his brass ring. I think it has been from the beginning. The first executive action was an executive order, on the day of his swearing in, that instructed all federal agencies that enforce anti-discrimination laws with a prohibition on sex discrimination, to reconsider their laws and then reissue them with a gender identity reinterpretation.

But at that top of the mountain for him is Title IX, because Title IX is the only federal regulation, the only federal civil rights statute that prohibits one form of discrimination that’s based on sex. If he can get that one, all of the other pieces will fall into place. They’ve been challenged right and left. I think he’s going to go doubly as hard. He is going to try to cement his commitment to the trans community. We saw what happened at Pride Month this year at the White House. It was nothing short of a circus. And I think we’re going to see a real battle royal when we see conservative candidates go up against Democratic opposition for common sense definitions of sex.

Guiney: Thank you to Crystal Bonham and Sarah Parshall Perry for contributing to today’s show. You can find Crystal on X, formerly Twitter, @crystalkatetx. And I don’t have to tell you this, but if you want some really strong and entertaining legal analysis, I would highly recommend following more of Sarah Parshall Perry’s work. You can find her on X @sarahpperry and find written pieces by her on heritage.org. And thanks as always to you for listening to Heritage Explains. If you have any thoughts, feedback, or suggestions for future episodes, send them our way at [email protected]. Thanks for listening, and we’ll see you next week.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It’s written and produced by Mark Guiney, Lauren Evans, and John Popp. Production assistance by Alexa Walker and Jeff Smith.