Bill of the month: Redefining 'sex-based discrimination'

Rogers is the “data wrangler” at BillTrack50. He previously worked on policy in several government departments.

This month IssueVoter and BillTrack50 take a look at joint resolution that would disapprove of and disapply a rule from April 2024 that redefined the term “sex-based discrimination” to include sexual harassment, parental status or gender identity as it relates to Title IX regulations for educational programs receiving federal funding.

To understand the impact of this resolution, introduced by Rep. Mary Miller (R-Ill.), let's look at some of the background.

Title IX: A history

The term refers to Title IX of the Education Amendments of 1972. It states: "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."

Title IX applies to schools, local and state educational agencies, and other institutions that receive federal financial assistance from the Department of Education. These recipients include approximately 17,600 local school districts, over 5,000 postsecondary institutions, charter schools, for-profit schools, libraries and museums. Also included are vocational rehabilitation agencies and education agencies of the 50 states, the District of Columbia and U.S. territories.

While Title IX itself has remained constant, given its very broad brush wording there are accompanying rules that interpret what it actually means in different contexts, and those rules have been subject to changes and redefinitions over the years. Initially, Title IX was used to expand access to schools and colleges, and it required that support for female-dedicated athletics programs equal that of male-dedicated programs.

A major expansion of its remit began in 1992, when its protections were interpreted to cover sexual harassment and sexual assault. Under the Obama administration, the Department of Education issued guidance explaining that transgender students are protected from sex discrimination under Title IX, and should be treated consistent with their gender identity in academic life. The Trump administration later began rolling back these protections. In 2017, Education Secretary Betsy DeVos withdrew the guidance on gender identity and in 2018 announced that Title IX did not allow transgender students to use the bathrooms of their gender identities. In 2020, the Trump administration went further and contended that the rights of cisgender women athletes were infringed upon by transgender women.

The Biden administration attempted to reinstate protections for transgender students with the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation in January 2021 and the Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity in March 2021, though implementation was limited in a number of red states.

In April 2024 the Department of Education issued yet more guidance, called Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. This is the rule the joint resolution seeks to disapply. The new rule, which took effect Aug. 1, represents a significant redefinition of Title IX. It clarifies that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. It also makes changes to simplify how complaints are handled and has a new definition for sex-based harassment that includes a definition for hostile environment harassment.

The new rule ‘only hurts women and girls’

Proponents of H.J.Res 165 claim the rule redefines "sex" and takes away rights from women and girls. They focus on the possible implications of the reintroduction of gender identity and how that could impact sport and the safety of women and girls. Arkansas Gov. Sarah Huckabee Sanders (R), in her own executive order, claims it is "a plainly ridiculous change that will lead to males unfairly competing in women’s sports; receiving access to women’s and girls’ locker rooms, bathrooms, and private spaces; and competing for women’s scholarships."

Sen. Cindy Hyde-Smith (R-Miss.) states, "It is a backward rule that only hurts women and girls, by stripping away opportunities and rights they have enjoyed for decades." They both argue that the new rule actually undermines Title IX and is part of a left-wing, radical gender ideology that ignores biological reality and will both remove female-only spaces such as locker rooms and bathrooms and also allow “biological males” to compete in women's sports. This is unfair, they say, and will leave women and girls vulnerable to all manner of threats.

The rule will restore and strengthen essential protections’

Opponents of the resolution claim that the new rule is essential to creating safe school environments for all by combating sex-based discrimination and harassment.

"After Donald Trump and Betsy DeVos took an axe to the Title IX rule and went out of their way to gut enforcement of protections for survivors of sexual assault, the Biden administration’s rule will restore and strengthen essential protections for survivors and make sure schools don’t get away with silencing students and sweeping sexual assault under the rug. At a time when we’re seeing an alarming rise in violence against transgender people, this rule explicitly clarifies that Title IX protects LGBTQ+ students and employees from unfair treatment and discrimination." Sen. Patty Murray (D-Wash.) said in a statement.

Kelley Robinson, president of the Human Rights Campaign, called on schools to implement the new rule now: "School administrators should take note and immediately act to implement anti-bias and anti-bullying and harassment programs that ensure misgendering stops, that cruelty against LGBTQ+ students ends and that every student has access to an education free of discrimination."

Robinson noted that numerous courts that have found discrimination on the basis of sex includes sexual orientation and gender identity. In 2020 the Supreme Court found in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity. This has far-reaching implications for other areas of the law, and legal scholars have argued that this ruling also ensures similar protections for students through Title IX.

Will the resolution pass?

On July 11, H.J.Res 165 passed the House, 210-205, with the vote split exactly along party lines. It's likely to face a rocky road in the Senate and is unlikely to be called for debate. And President Joe Biden would be sure to veto it should it make its way to his desk. But the resolution is much more about setting battle lines for the upcoming election, with Republicans wanting to make transgender rights an issue as part of the ongoing culture wars.

It is certainly an emotive issue, as the recent furor over female boxer Imane Khelif in the Paris Olympics demonstrates. Khelif was disqualified from competing by the International Boxing Association in 2023 after she defeated the only Russian boxer in a competition, over claims she failed an unspecified gender test. She has called this a conspiracy, given the IBA president is a Russian and reportedly an acquaintance of Vladimir Putin.

The International Olympic Committee rejected the ban and allowed her to compete in Paris, which sparked a storm of false allegations and abuse regarding her gender, claiming that she was in fact transgender or intersex. Khelif was born a woman and has always competed as a woman and has been strongly defended by the IOC. Politicians around the world seized on the case, including ex-President Trump. “I will keep men out of women’s sports!” Trump wrote on his social media site, Truth Social, in all caps.

Project 2025

Looking ahead, Title IX features prominently in the conservative Heritage Foundation's Project 2025, a playbook for the next Trump presidency should he win in November. The document sets out that the Biden rule should be “reviewed,” including removing all the data-gathering requirements that help in monitoring such things as proportions of males and females engaging in different sports. It then recommends rolling back the rules to the Trump/DeVos era and redefining "sex" to mean biological sex at birth. It also seeks to “restore due process” for those accused of sexual misconduct by removing the changes that make it easier for complaints to be brought.

Regardless of the success of H.J.Res 165, political wrangling over gender identity isn't going away any time soon.