Sexual orientation and gender identity discrimination are now prohibited, the Department claims
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CounterCurrent: ED Celebrates Pride Month with New Interpretation of Title IX
Sexual orientation and gender identity discrimination are now prohibited, the Department claims
CounterCurrent is the National Association of Scholars’ weekly newsletter, bringing you the biggest issues in academia and our responses to them.
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Category: Title IX; Reading Time: ~2 minutes
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** Featured Press Release - U.S. Department of Education Confirms Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity ([link removed])
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Last week, the Department of Education (ED) issued ([link removed]) a new Notice of Interpretation ([link removed]) regarding the definition of Title IX. This guidance effectively expands Title IX’s domain to include not only sex discrimination, which is its original and only purpose, but also discrimination based on “sexual orientation” and “gender identity.” The move is specious and disappointing, but not entirely surprising. After all, President Biden has called ([link removed]) transgender discrimination “the civil rights issue of our time.”
Let’s review the original intent of Title IX, beginning with the text of the law ([link removed]) : “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. … ” [emphasis added] That’s it. Title IX goes on to define terms within and exceptions to the above text, such as single-sex institutions and Greek life, but, simply put, the law guarantees equal access in academic programs. At the time, this meant equal access for women. Most Americans supported, and still support, this uncontroversial policy, though the law was soon used by federal agencies in more controversial ways, including toward collegiate sports, still a source of dispute today.
You may be thinking: “David, I don’t see ‘sexual orientation’ and ‘gender identity’ in Title IX”—your observation is on-point. The language isn’t there. The law was witten to prohibit discrimination based on sex, which includes and is limited to sex: i.e., male and female. Other kinds of discrimination are forbidden by other laws. For example, Title VI of the Civil Rights Act of 1964 bans race discrimination in programs receiving federal funds. When federal agencies announce new applications and intentions of federal law, as the Biden Education Department is now doing with Title IX, they bypass Congress and the democratic process to distort existing policy to suit their preferences.
Of course, this is not the first time Title IX has been distorted. As National Association of Scholars Policy Director Teresa Manning details in her 2020 report Dear Colleague ([link removed]) , American colleges and universities have for years used Title IX as a pretense to act as campus sex monitors, hearing and prosecuting alleged sex crimes independent of local law enforcement. They usually do so with little or no regard for basic judicial practice, in large part because Title IX adjudicators themselves have little or no judicial training. As one aggrieved parent put it ([link removed]) , “My son’s hearing was a joke … He never stood a chance.”
But at least these offices were pretending to operate within the existing bounds of Title IX, building on case law to argue that sexual harassment and assault constitute a denial of educational access as such. By contrast, the ED enters entirely new terrain when it expands Title IX—by the stroke of a pen in “guidance”—to gender ideology. What this means, we don’t know for certain.
Will a Christian student (or Jewish, or Muslim, for that matter) be called into the Title IX office for refusing to acknowledge same-sex unions as a valid form of marriage? Will professors be hauled in and punished for referring to all male students with male pronouns, and vice versa? Will the women’s basketball coach be penalized for choosing not to add a transgender player to his roster? If speech is violence, as we’re told, and violence is a barrier to educational access, then these scenarios are not all that far-fetched.
Lauding the new guidance, Education Secretary Miguel Cardona said, “I'm proud to have directed the Office for Civil Rights to enforce Title IX to protect all students from all forms of sex discrimination ... Today, the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools that are free from discrimination.” Euphemisms aside, this is incredibly misguided and will have disastrous consequences for American higher education if enforced rigorously. With the concurrent nomination of Catherine Lhamon to ED’s Office of Civics Rights, the Biden administration is on a dangerous path with Title IX, one that will only lead to rampant injustice for students, professors, and administrators alike.
Until next week.
David Acevedo
Communications & Research Associate
National Association of Scholars
Read More ([link removed])
For more on Title IX and American higher ed:
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May 14, 2021
** Biden Nominee for the Office of Civil Rights Could Reverse Devos’ Due Process Reforms ([link removed])
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NAS
Lhamon is most known for her involvement with the infamous 2011 Dear Colleague Letter, which transformed Title IX from a civil rights law into a quasi-criminal matter.
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April 10, 2021
** On Title IX, Dems Move to Restore Obama-Era Unfairness ([link removed])
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KC Johnson
The Biden administration is racing toward reimposing a one-sided Title IX system. History looks unkindly on those who willingly sacrifice the innocent in pursuit of an asserted greater good.
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February 08, 2021
** Countering Sex Discrimination at UCF ([link removed])
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David Acevedo
Do sex-specific university programs and scholarships violate Title IX? Adam Kissel argues they do and has filed a OCR complaint to address the issue at the University of Central Florida.
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October 29, 2020
** Dear Colleague: The Weaponization of Title IX ([link removed])
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Teresa Manning
This report explains how sexual assault came to be a form of sex discrimination and surveys the regulatory path that Title IX administrators took to make this word-play a reality.
** About the NAS
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