Draft Oral Statement to OMB

Regarding Title IX Regulation

To be modified by the presenter

February 19, 2024

On February 2, the Department of Education submitted its proposed Title IX rule to the Office of Management and Budget for final clearance. If approved, the Department of Education’s regulation will impose sweeping changes on our nation’s schools, children, and families.

Legal Developments

The OMB submission was the culmination of a series of legal developments over the previous three years:

1. January 20, 2021: President Biden issues an Executive Order instructing all federal departments to address discrimination on the basis of “gender identity.”
2. June 22, 2021: Ignoring the requirement of the Administrative Procedure Act to solicit prior public comment, the Department of Education issues a Title IX “Rule” to expand the definition of sex to include sexual orientation and gender identity.
3. August 30, 2021: The Attorneys General from 20 states bring a lawsuit against the Department of Education to impose a Preliminary Injunction on the June 22 Rule.
4. July 15, 2022: District Court of Tennessee issues a Temporary Injunction against the June 22 Title IX Rule. (The Sixth Circuit Appellate Court has yet to issue a final ruling on the case.)
5. June 23, 2022: Department of Education releases a draft Title IX regulation that expands on the June 22, 2021 Title IX Rule, and invites public review and comment.
6. 2023: Due to the large number of comments received, Department of Education misses its self-imposed deadlines to finalize the rule in May and in October.
7. April 6, 2023: Department of Education issues a draft Title IX rule that would prevent states from categorically banning transgender students from competing in women’s sports.

Successful 2020 Title IX Regulation

It should be noted that the 2020 Title IX regulation has been working quite well. Five lawsuits were filed to overturn the 2020 regulation, but none of them succeeded:

1. 18 Attorneys Generalfrom PA, NJ, CA, CO, DE, DC, IL, MA, MI, MN, NM, NC, OR, RI, VT, VA, WA, and WI— On August 12, 2020, Judge Carl Nichols  denied a motion for preliminary injunction.
2. Women’s Student Union— Judge Edward Chen denied the lawsuit on August 5, 2021, granting the WSU leave to amend the complaint, and then dismissed the case on February 16, 2022.
3. Victim Rights Law Center— On July  28, 2021  Judge William G.  Young  issued  a historic ruling  that  upheld  12  out  of  13  provisions  in  the  Rule  that  the  plaintiffs  had  challenged.
4. State of New York— On August 9, 2020, Judge John G. Koeltl denied the request for a Preliminary Injunction. The lawsuit was withdrawn on November 3, 2020.
5. American Civil Liberties Union— Judge Richard D. Bennett ruled on October 20, 2020 that the plaintiffs lacked standing to sue.

Public Opinion Polls

Public opinion polls reflect growing opposition to the proposed Title IX regulation:

A 2021 Gallup poll found that 62% of Americans believed that transgender athletes should be allowed to play only on teams that matched their birth sex. When the same poll was repeated in 2023, the percentage of Americans supporting such bans had increased to 69%. (4)

Five other national surveys conducted in 2023 reveal consistent opposition to transgender policies:

Deseret News/HarrisX (5): 55% of respondents support banning gender hormone therapy on minors, and 61% want to prohibit surgical interventions to change a child’s sex.

Summit Ministries (6): 77% of voters believe that allowing males who identify as female to compete against biological women in college female sports has been harmful to women’s sports.

CRC Research and Parents Defending Education (7): 74% of registered voters believe that schools should not be allowed to help students change their gender identity without parental consent.

Scripps News/You Gov (8):

• 54% of Americans support a federal ban on transgender females competing in school athletics.
• 44% say they want “laws that would restrict and, or ban transgender care for minors, even with parents’ consent,” while 34% oppose such measures.

KFF/Washington Post (9):

• 57% of American adults believe a person’s gender is based on their biological sex at birth.
• 67% do not think that biological males should be allowed to compete in women’s sports competitions at the high school level.
• 65% don’t believe that biological males should be allowed to compete in women’s athletics in college or professionally.
• 77% of American adults believe it is inappropriate for teachers to discuss their transgender identities with students in kindergarten to third grade.

See links here: https://www.saveservices.org/2024/02/public-opposition-mounts-as-media-accounts-spotlight-transgender-tragedies/

Five Areas of Concern

There are the five areas in which the Title IX regulation will be harmful to children, schools, and families:

1. Gender Transitioning
2. Parental Rights
3. Women’s Sports
4. Due Process
5. First Amendment

GENDER TRANSITIONING

The goal of the feminist revolution must be the elimination of the “sex distinction itself: genital differences between human beings would no longer matter culturally…The tyranny of the biological family would be broken.” — Shulamith Firestone

According to the UCLA Williams Institute, 1.4% of all youth ages 13-17 years identify as transgender, as of 2014-2020. Now, thousands of youth are receiving treatments for gender dysphoria each year.

Gender dysphoria can be deeply painful to persons affected by this problem. That said, the vast majority of children who struggle with their gender come to accept their biological sex by adulthood. Encouraging children and youth to transition to a different sex represents a radical, unethical experiment: “Doctors are conducting a giant experiment that does not come close to the ethical standards demanded in other areas of medicine,” reveals ethicist Ryan Anderson.

• As of the end of 2023, laws to ban gender transitioning among youth had been enacted in 22 states: AL, AR, AZ, FL, GA, IA, ID, IN, KY, LA, MS, MO, MT, NE, NC, ND, OK, SD, TN, TX, UT, and WV.
• On January 24, 2024, Ohio lawmakers overrode a veto by Gov. Mike DeWine.

More information: https://www.saveservices.org/2022-policy/network/gender-transitioning/

PARENTAL RIGHTS

The Department of Education has publicly expressed its dim view of parents’ rights. On May 19, 2023, DOE Secy. Miguel Cardona made this claim: “Teachers know what is best for their kids because they are with them every day.”

If the Department of Education succeeds in expanding the definition of sex to include “gender identity,” parents will lose their rights to restrict the exposure of young children to curricula on sexual orientation, gender identity, and age-inappropriate discussions of sexual practices.

Worse, children could be gender “transitioned” and assigned a new name without their parents’ knowledge or consent. As of January 17, 2024, 10.8 million students across the country were attending schools with policies stating personnel can or should keep a student’s transgender status hidden from parents.

LEGISLATION

• Laws have been enacted in 18 states: AL, AZ, CO, FL, GA, ID, IA, KS, MI, MT, NV, NC, ND, OK, TX, UT, VA, WV, and WY.

LAWSUITS

• Wisconsin: Judge Michael Maxwell ruled, “This Court has before it what modern society deems a controversial issue – transgenderism involving minors within our schools… However, this particular case is not about that broad controversial issue. This particular case is simply whether a school district can supplant a parent’s right to control the healthcare and medical decisions for their children. The well-established case law in that regard is clear – Kettle Moraine cannot.”
• California: Judge Roger Benitez ruled that the parental secrecy policy at Escondido Union School District represented a “trifecta of harm:” The policy “harms the child who needs parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. It harms the parents by depriving them of the long recognized Fourteenth Amendment right to care, guide, and make health care decisions for their children. And finally, it harms plaintiffs [school teachers] who are compelled to violate the parent’s rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students — violating plaintiffs’ religious beliefs.”

More information: https://www.saveservices.org/2022-policy/network/parental-rights/

WOMEN’S SPORTS

Biological males enjoy numerous physical advantages over biological females in athletic events. This contradicts the whole purpose of Title IX, which is to assure fairness for all students regardless of sex.

Unfortunately, the U.S. Department of Education has been promoting a transgender agenda for years:

• 2015 Resolution Agreement Allowing a Transgender Student’s Access to a High School Girl’s Locker Room
• 2016 Dear Colleague Letter on Transgender Students
• On April 6, 2023, the Department of Education issued a draft Title IX rule that would prevent states from categorically banning transgender students from competing in women’s sports.

Legislation

• Laws to protect women’s sports have been enacted in 24 states: AL, AR, AZ, FL, IA, ID, IN, KS, KY, LA, MS, MT, NC, ND, MO, OH, OK, SC, SD, TN, TX, UT, WV, and WY.

More information: https://www.saveservices.org/2022-policy/network/womens-sports/

CAMPUS DUE PROCESS

In June 2023 the Connecticut Supreme Court issued a unanimous decision that delineated the fundamental requirements of campus due process:

(1) Require complainants to testify under oath or to subject them to explicit and meaningful penalties for untruthful statements.

(2) Provide a meaningful opportunity to cross-examine adverse witnesses in real time.

(3) Provide parties a reasonable opportunity to call witnesses to testify.

(4) Afford the accused the opportunity to have the active assistance of counsel during the [campus sexual assault] hearing.

(5) Provide any record or transcript of the proceeding that would assist in obtaining an adequate review of the college’s decision.

The Connecticut Supreme Court also made a pointed reference to the proposed Title IX regulation:

“At the time this opinion was written, the Department of Education had proposed amendments to Title IX regulations that would eliminate any cross-examination requirement at postsecondary institutions . .. Regardless of how Title IX regulations may be amended, we conclude that, for absolute immunity to apply under Connecticut law, fundamental fairness requires meaningful cross-examination in proceedings like the one at issue.” [Emphasis added.]

Unfortunately, many colleges have failed to meet these minimum requirements, or assure other due process protections foreseen by the Fourteenth Amendment.

SAVE’s Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation reviews 175 judicial decisions in which judges issued decisions against universities. The proposed Title IX regulation seeks to remove key due process protections for persons, especially male students, falsely accused of violating campus sexual misconduct policies.

The situation appears to be getting worse, as revealed by two large jury awards in 2023:

• An Oregon jury awarded $4 million to Peter Steele whose sexual assault case was mishandled by Pacific University, ruling the institution had intentionally caused the man emotional distress.
• A Pennsylvania jury issued a $15 million verdict against Thomas Jefferson University for failure to follow basic due process procedures — see video.

LEGISLATION

• Campus due process laws have been enacted in twelve states: AR, AZ, CA, FL, GA, KY, LA, MD, NC, ND, NY, and OH.

More information: https://www.saveservices.org/2022-policy/network/due-process/

FIRST AMENDMENT

The First Amendment guarantees free speech to all citizens. Compelled speech policies, such as pronoun mandates, are a violation of free speech. The draft Title IX regulation would harm both of these rights.

Related areas of concern include bias reporting systems and DEI policies.

FREE SPEECH

The proposed rule would curtail free speech by broadening the definition of sexual harassment to include “unwelcome sex-based conduct” that can be evaluated “subjectively and objectively.”

Reports

• House Committee on Education: Freedom of Speech and Its Protection on College Campuses
• FIRE: 2022-2023 College Free Speech Rankings

Legislation

• Campus free speech laws have been enacted in 23 states: AL, AZ, AR, CA, CO, FL, GA, IN, IA, KY, LA, MO, MT, NC, ND, OH, OK, SD, TN, TX, UT, VA, and WV.

Lawsuits

• FIRE: Current Lawsuits
• Favorable Decisions:
  • University of Idaho
  • Geary County Schools School Board
  • FIRE: Freedom of Expression and Speech Codes

PRONOUN MANDATES

Once the legal definition of “sex” is expanded to include gender identity, students can demand that teachers and other students call them by their preferred pronouns. But compelled speech is not free speech. In a Wisconsin case, a 13-year-old boy refused to use a fellow student’s preferred “they” and “them” pronouns, resulting in a Title IX complaint against him.

Based on its unlawful 2021 Title IX “rule,” the Office for Civil Rights has begun to enforce pronoun mandates:

1. New College, Florida: “The federal Department of Education’s Office for Civil Rights is looking into conservative activist Christopher Rufo for, among other things, ‘misgendering’ a diversity official at Florida’s New College.”
2. Taft College, California: “OCR’s investigation also reflected that the college received repeated notice that the student alleged experiencing almost daily harassment including through faculty misgendering the student, but the college did not respond to these allegations to confirm their occurrence or redress the harm the student reported experiencing.”

Legislation

• Laws banning pronoun mandates have been passed in 10 states: AL, AR, FL, IA, IN, KY, MT, ND, TN, and UT.

More information: https://www.saveservices.org/2022-policy/network/free-speech/