The new Title IX rule admits gender theory is a farce

The Department of Education’s new regulation on Title IX may be a textbook example of the mental gymnastics required to accommodate gender theory into law, but the final rule is a tacit admission that the whole theory is a farce.

Title IX is the landmark law that established protections from sex-based discrimination in education settings. The new rule says sex-separate programs that do not cause more than “de minimis harm” are protected by Title IX. On its face, this means it is perfectly legal to have sex-separate bathrooms and activities like sports.

But just as they reinforce the notion of sex-separate activities, the new regulation actively undermines them and, in doing so, admits the entire premise of gender theory is a lie. Just look at what the Department of Education’s fact sheet says about the regulation:

“The final regulations clarify that a school must not separate or treat people differently based on sex in a manner that subjects them to more than de minimis harm, except in limited circumstances permitted by Title IX,” the fact sheet notes. “The final regulations further recognize that preventing someone from participating in school (including in sex-separate activities) consistent with their gender identity causes that person more than de minimis harm.”

In effect, the Biden administration is saying that gender is the same as sex while also trying to separate the two. If sex is different from gender, there would be no reason to clarify that someone’s gender identity entitles him to participate in sex-separate activities, as they are sex-specific, not gender-specific.

But that isn’t what the fact sheet or the new regulation says. It specifically ties gender identity to sex, thus admitting that the entire premise of gender theory — that gender is a fluid social construct and has no relation to a person’s biological sex — is a farce.

Title IX was passed under the very clear and obvious understanding that the two sexes, men and women, have different physical and mental characteristics and, therefore, need to be protected from discrimination that could arise from one or the other. But today, the Biden administration has taken a blowtorch to this distinction and completely undermined the law’s intent, simply to serve the interests of the transgender lobby.

This redefinition of sex as gender was aided in part by a dubious 2020 Supreme Court ruling in Bostock v. Clayton County that said “sex” applies to gender identity and sexual orientation in employment civil rights law. It is this ruling, according to the Biden administration, that provided the legal basis for the overhaul of Title IX. The contention is highly questionable. The court majority in Bostock wrote that “we do not purport to address bathrooms, locker rooms, or anything else of the kind” but only employment law — an entirely different thing.

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But in adopting this definition for a statute that is meant to protect people from discrimination on the basis of sex, the Department of Education has ensured that a high school boy with perverse intent can simply walk into a girls’ bathroom if he tells an administrator that he identifies as a girl, and the high school must, by law, allow him to use that facility.

This alarming scenario is the effect of redefining sex as gender. But for an administration that prioritizes special interests over the protection of everyday people, it is a worthwhile cost that effectively serves the ultimate goal of destroying the differences between men and women.