Dear District Superintendents,
The United States Department of Education has proposed a rule that fundamentally re-writes Title IX of the Education Amendments of 1972, a longstanding federal civil rights law prohibiting sex discrimination in all federally funded education programs. Executive Order 12866 of September 30, 1993, on Regulatory Planning and Review, requires that “each agency shall identify the problem that it intends to address (including, where applicable, the failures of private markets or public institutions that warrant new agency action) as well as assess the significance of that problem.”
Yet the Biden Administration has failed to show that such monumental changes are needed, that Title IX, as currently interpreted, has failed to prevent sex discrimination, or that the costs of implementing such a re-write—which promise to be usurious—are justified. Additionally:
1. The Department of Education’s new Title IX rule would unilaterally expand the long-standing prohibition against discrimination based on “sex” to include “sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.” This reading is unsupported by the text of Title IX, its implementing regulations, and the law’s congressional history and extensive record of debate and deliberation. It is also unsupported by the case law cited by the Department of Education as the putative legal foundation for the expansion.
2. While Title IX was amended by the Civil Rights Restoration Act of 1987, Congress has never amended or altered it in such a way as to expand the definition of “sex” (understood since the statute’s adoption more than 50 years ago to be the ordinary public meaning of biological sex, male and female) to include gender identity—despite ample opportunity to do so. A sex binary—male and female—is the foundation upon which the entire statute’s operation rests. Title IX’s use of the words “both” and “either” to address educational disparities within its regulations reinforces the understanding that there are only two sexes and opportunities for both must be equal under the law.
3. The Biden Administration’s Title IX expansion of “discrimination on the basis of sex” to discrimination on the basis of “gender identity” is a change that will require schools to allow biological males who identify as females to compete in women’s sports and girls’ sports; receive access to women and girls’ locker rooms, bathrooms, dorm rooms, and housing accommodations; compete for women’s scholarships; gain access to women’s and girl’s-only schools; and eviscerate the long-standing protection of sex equality under the law—thereby vitiating Title IX’s very purpose at the time of its enactment.
4. The rule defines sexual harassment so broadly that it will require K-12 officials to police and punish the use of “incorrect” pronouns and/or “misgendering” of both students and teachers, thereby creating a de-facto speech code that violates the First Amendment’s prohibition on compelled speech.
5. The Title IX proposal makes it harder to discipline unionized K-12 teachers and staff accused of sexual harassment of students. For these employees, the new Title IX rule allows a higher evidentiary standard—the “clear and convincing standard”—rather than the lower “preponderance of the evidence” standard used for everyone else.
6. The Biden Administration’s Title IX proposal requires K-12 schools to accept a child’s gender identity regardless of biological sex without requiring the approval of or notification to the child’s parents—a fundamental trampling of the long-recognized constitutional right of parents to direct their child’s education and upbringing.
States have a legitimate and sovereign interest (see Cameron v. EMW Women’s Surgical Center, P.S.C. (2022)) in maintaining sex equality within education. Adhering to the Department of Education’s illegal interpretation of Title IX renders states powerless to make their own determinations on how best to protect women and girls, teachers and professors, accused students, and parents’ rights in education.
As we await the final Title IX rule, which we anticipate will be published in the Federal Register any day, we ask each district superintendent in [insert state name] to wait for guidance from the [insert state name] Department of Education.
With appreciation for your cooperation,
[State Chief Name]
[State Attorney General name, if applicable]
