On this episode, Sarah Parshall Perry talks about her recent piece: “Lia Thomas Was Just the Beginning. Biden Administration Wants to Eliminate Woman’s Sports.” We'll break down Biden’s proposed changes to Title IX, and the hard fought protections for girls and woman it ensures. We also examine the legality, and discuss why it’s crucial that U.S. educational institutions ensure kid’s safety, empower parents, and guarantee equal opportunities for girls and woman.

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Doescher: From The Heritage Foundation, I'm Tim Doescher and this is Heritage Explains. Title IX of the Education Amendments of 1972 is a federal law prohibiting sex based discrimination in any educational program that is federally funded, either directly or indirectly. It ensures there are safe and equal educational opportunities for girls and women. Of course, one of the hottest issues surrounding Title IX has to do with sports. Recently, President Biden has proposed changes to Title IX to redefine sex, to include gender ideology.

Doescher: Now, at this point, we're all familiar with Lia Thomas, the biological man identifying as a woman who gained clearance from the NCAA to compete against biological women. While we want to acknowledge how sensitive this issue is for many, we wanted to focus on the impact this change would have on women and their right to be protected under Title IX. Here's just a contrast. First, here's Lia Thomas in an interview on SwimSwam. The host asked Lia about having pride in breaking records.

Interview Host: You did break Penn School records on the women's side. Can you describe what that sensation was like for you, especially after officially being on the women's team and I'm guessing just feeling in a good place with your transition?

Lia Thomas: Mm-hmm (affirmative). I'm very proud of my times and my ability to keep swimming and continue competing. And they're suited up times and I'm happy with them. My coaches are happy with them and that's what matters to me.

Doescher: And a contrast, here's Riley Gaines on Tucker Carlson. Riley's a biological female who tied with Thomas at the NCAA Swimming Championship.

Riley Gaines: I think there's a difference between your sex and your gender identity. And so I think that it's just been totally misconstrued and lost in the past couple years or so, but it's finally gotten to the point where it's being shown and it's completely violating women and women's rights, especially in sports. This is just not okay and it's not fair. And we're dealing with something that's completely out of our control when we're racing, biological males, whether that be, they have different lung capacities, their high, [crosstalk 00:04:01] obviously, testosterone levels. Whether you be on testosterone blockers or not, it doesn't suppress going through puberty as a male, especially the one in question who swam three years as a male on UPenn. It's just completely unfair and it's a matter of equity really.

Doescher: Again, stark contrast. So who is the real winner of President Biden's proposed changes to Title IX? What would equity look like if he had his way? On this episode, Sarah Parshall Perry joins us to break down Biden's proposed changes to Title IX and the hard fought protections for girls and women it ensures. She'll also examine the legality and discuss why it's crucial that US educational institutions ensure children's safety, empower parents, and guarantee equal opportunity for girls and women. More after this.

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Doescher: Sarah, your piece is called Lia Thomas Was Just the Beginning. Biden Administration Wants to Eliminate Women's Sports. Now they want to do away with this through changing Title IX to redefine sex, to include gender ideology. And I got to be honest, Sarah, I read the headline and I just got... The blood pressure just started going.

Sarah Parshall Perry: Uh-huh (affirmative).

Doescher: I mean, it just started going. So before we get into all of that, start us out with some context, what is the purpose of Title IX and just how far away is this rule change?

Parshall Perry: So I think people hear Title IX and their eyes glaze over because they go, "What? I don't understand what that means." But ultimately, it is a federal law enforced by the Department of Education that prohibits sex discrimination in any educational program that receives federal money, directly or indirectly, a $100,000 or $1. If federal money goes to a particular school, they're subject to Title IX.

Doescher: So it's not just sports. I mean, this is-

Parshall Perry: Not just sports.

Doescher: And that's the popular one though, because that's really where it really comes into play.

Parshall Perry: Yes.

Doescher: It's everything.

Parshall Perry: Every educational program. And it guarantees equality between men and women, because at the time, after the sexual revolution, we had the feminist movement saying, "Okay, well, we've passed Title VII in employment, but we really don't have the same educational opportunities as men, so we need a bill for that. National Organization for Women was involved in drafting of the language. It was advanced by Senator Birch Bayh, who is a Democrat, who had advanced it on the Senate floor. So now we're kind of wondering where all of the women's rights activists are because my mostly it's just conservatives who are screaming about this with the exception of a few.

Doescher: It's amazing. And this is where we go with the title of the piece, we're going to see a lot more Lia Thomas situations. Why and how is that through this?

Parshall Perry: So what they're planning on doing by expanding the term sex to gender identity is taking every program that was separated because of the biological distinctions between male and female sports teams, for example, or private spaces like locker rooms, bathrooms, dorm rooms, housing accommodations. They're taking those spaces, and now opening them up to anyone who identifies as a woman, regardless of what their underlying biology is. And the reason that we're seeing these sports conflicts at such a high level is that they are really the pinnacle of distinction between men and women. You can't look at Lia Thomas and say, "Well, that biology doesn't actually give that person an advantage because between wingspan, height, muscle mass, bone density, and lung capacity, there was no doubt in my mind that that championship was going to be won."

Doescher: Okay. So I just want to cut to the chase here, and this is one of the points that you make that this is illegal and there's many reasons for that. But one of them is, to me, it seems like this was a law that was passed in the '70s, and now they're doing this through executive order. They're not taking this back through Congress, correct? Is that [crosstalk 00:08:52] what's happening here?

Parshall Perry: So they're not taking it through Congress, but they're running it through a rulemaking process. Now, the federal agencies in the government, whether that's the Department of Defense or the Department of Education, go through a rulemaking process, it's very long. It requires meeting with stakeholders, going back and forth on the language. But currently right now, that rule is at the Office for Management and Budget. And they are the last stop before rubber stamping a rule to send it to Department of Ed. From there, Department of Ed says, "Well, here's the new rule. The public gets 30 days to comment, and then we're going to adopt it."

Doescher: Okay.

Parshall Perry: So they're going through sort of a complicated regulatory process, but we know this administration loves to use federal agencies to accomplish policy goals. He did it with OSHA, he did it with the CDC. Now he's doing it with the Department of Education and they don't have a legal basis for doing it. His pronouncement was that Bostock presents the basis. That's Bostock versus Clayton County. Remember that was the big Title VII decision for employment and expanding sex discrimination to include gender identity, but they're two different laws and they represent two different things.

Doescher: And we can get into the pushback of it. But I just wanted to say, in your piece, you say... And I'm going to quote you to you. I do that a lot here. It's kind of weird when I quote the person to themselves, but it's great context here. So it says, "With the education department's impending rule change on Title IX, Lia Thomas will be just the beginning of the decimation of women's educational and athletic opportunities. If the final Title IX rule is approved, schools across the country can kiss sex equality goodbye."

Parshall Perry: Yeah.

Doescher: Just elaborate a little more on that. It seems like they're just trying to sanction dumber and dumber.

Parshall Perry: Yes, they are. And you know what? I think a lot of people understood that Title IX was really sort of that last stop against gender ideology, right? For many people, it's the most important federal civil rights law that protects women because it's the only one that doesn't include other educational characteristics. It's only to guarantee sex equality. Title VII, you include race, religion, national origin and sex. Title VI goes only to race and national origin, but Title IX is specifically guaranteed to protect women's interests. And the fact that this is really just the beginning of an expansive definition of sex to include gender identity, that is going to open up locker rooms, bathrooms, dorm rooms, housing accommodations, scholarships, sports, admissions. This is really going to get to a point where what we've achieved for the past 50 years through Title IX that celebrates its 50th anniversary in June, is all going to be rolled back. That's not progress, regardless of the administration's statements on being progressive, it's actually regressive. It sends us backward.

Doescher: You're paying attention to this probably a lot more than many people in this country right now. And I'm curious, for the women who fought for Title IX originally... And it was I'm sure bipartisan back in the day, what would the people on the left be... What is their mindset on this? People that would've normally supported this, are they just kind of saying, "Hey, we were wrong," or are they saying that this is how it was always intended to be, how are they justifying this?

Parshall Perry: Well, unfortunately they're nowhere to be found. With the exception of a few very small feminist organizations who recognize that sex based distinctions are appropriate and the necessary. For the most part, the larger feminist organizations, the one that were at the forefront of the sexual revolution, like the National Organization for Women, completely silent on this issue. And that's because this administration has pushed it forward as the golden calf. Right? You can't touch gender ideology. The transgender agenda has been on this president's mind since before he was sworn into office. And one of his first executive orders was telling every federal agency, "Look at your rules and make sure that they include sex as gender identity." So we knew it was coming, we just didn't know it would be this soon.

Doescher: Sarah, what about the states? I mean, there are several states who have come out and passed laws, through the legislature, signed [crosstalk 00:13:34] by the governor. These are laws in the states that say, "Biological men can't compete in biological female sports."

Parshall Perry: Right.

Doescher: Period. What would this Title IX rule change do to those laws?

Parshall Perry: Well, because of the Doctrine of Federal Preemption, these states, even though 13 of them, soon to be 14, I think, have now passed fairness in state sports' protective bills for the women and young girls who are going to be competing in athletics, they are subject to the provisions of Title IX.

Doescher: Wow.

Parshall Perry: So if this rule gets approved, if this rule gets out, ultimately you're setting up a battle royale between the state's ability to legislate in the basis of education for its own women against a federal civil rights law. And ultimately, I think that question has to go before the Supreme Court.

Doescher: Yeah. Federal civil rights law that wasn't even debated in Congress, in US Congress.

Parshall Perry: Yes. And on which the entire Congressional Record is replete with discussion about the biological distinctions between men and women. In the '70s, they knew sex meant sex. This is a ham-handed attempt to shoehorn a progressive agenda into one federal civil rights law that has protected women for five decades. And it's unconscionable.

Doescher: So this is going to court.

Parshall Perry: It is ultimately going to go to court and we've already seen particular lawsuits just against the Department of Education. In fact, the State of Tennessee has led a coalition of 26 states against the Department of Education, knowing this rulemaking was coming. But that judge has been hanging on to that decision and has not issued a ruling because he's waiting for the final rule. Well, we know what the final rule's going to say. We think it's just essentially a lot of bread and circus going through the box-checking to get to this administration's perceived pet project. And that's the transgender agenda.

Doescher: Let's be conservatives for a second, while I pose as somebody who doesn't care [crosstalk 00:15:42]. Why do I need to care about this? Just let people be people and do what they want.

Parshall Perry: Well, that's a great ideology, except here's the problem. Nowhere else in the law do we allow someone's civil rights protection for what they believe about themselves. In fact, it sets up a conflict between an immutable characteristic like sex or race or national origin with what someone believes about themselves. And that conflict is essentially one that's going to have to have its day in court. So I'm all for live and let live. Except when you impinge upon the safety, privacy, and equality of a group recognized for decades as being worthy of this protection.

Doescher: And I just wanted to thank Sarah for that awesome overview of the proposed changes to Title IX. I've linked to her piece in the show notes. So please, it's a very tremendous read. You guys have to log on and read it. It's great context for this very complex issue. And again, that's why I love The Heritage Foundation, making the complex understandable. We'll catch you next episode.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It is produced by Michelle Cordero and Tim Doescher, with editing by John Popp.