Senator Ron Johnson (R-WI) joined Senator Tommy Tuberville (R-AL) and other GOP senators Tuesday in a public comment to Biden Education Secretary Miguel Cardona that opposes the department’s proposed rule to expand Title IX to allow biological males to compete in women’s sports, and specifically points out how the rule will undermine the original intention of Title IX.
The education department’s proposed rule, titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams” was published in the Federal Register on April 6.
Proud to lead a public comment with 21 other Senators.
We are united in standing with female athletes. https://t.co/A36ILcfsXx
— Coach Tommy Tuberville (@SenTuberville) May 16, 2023
“The Department must consider the resulting real-life inherent costs—the cost of lost opportunities for girls in academic settings,” the senators wrote. “By expanding the pool of protected individuals and creating mass uncertainty at each individual school and school district, it stands to reason that biological girls will ultimately lose scholarship and athletic opportunities designated for them under the original intent of Title IX.”
The summary of the proposed rule states:
The U.S. Department of Education (Department) proposes to amend its regulations implementing Title IX of the Education Amendments of 1972 (Title IX) to set out a standard that would govern a recipient’s adoption or application of sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity. The proposed regulation would clarify Title IX’s application to such sex-related criteria and the obligation of schools and other recipients of Federal financial assistance from the Department (referred to below as “recipients” or “schools”) that adopt or apply such criteria to do so consistent with Title IX’s nondiscrimination mandate.
Alliance Defending Freedom (ADF) represents female athletes who have been undermined by the radical enforcement of having boys and men compete against them in women’s sports.
— Alliance Defending Freedom (@ADFLegal) May 16, 2023
Christiana Kiefer, ADF senior counsel, wrote Monday at World about the negative impact of the proposed rule.
“The rule places an unconscionable hurdle in front of women and insists that males may inhabit female sports and spaces unless a school can demonstrate how doing so will jeopardize the physical health of young women,” Kiefer said. “In the face of such paperwork and legal risk, girls can expect to see the cancellation of teams where males pose a heightened risk of contact and injury and the functional elimination of female-only sports.”
Kiefer then observed how the rule once again highlights the dangers of the administrative state – lawmaking by unelected bureaucrats:
Second, the rule is a prime example of how messy and Machiavellian the executive rulemaking process has become. The policy proposed would be troublesome enough if it were put into effect through the proper legislative channels. But with this rule, unelected education bureaucrats are directly reinventing federal law, illegally contradicting new laws in over 20 states, and seeking to enforce a policy that fails to enjoy support from a majority of Americans.
“The Biden administration’s proposed sports rule is a slap in the face to female athletes who deserve an equal opportunity to compete on the playing field."https://t.co/fKwVTHao8V
— Christiana (Holcomb) Kiefer (@ChristianaADF) May 15, 2023
The senators emphasized as well the fact that the proposed rule was created based on a political agenda.
They quote the rule that states “Title IX authorizes and directs the Department of Education, as well as other agencies to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.”
“This authority, however, does not permit the Department to inconsistently apply regulations to suit a particular class of people based on a political agenda, especially if such application is contrary to the science, spirit, and intent of the statute upon which it is based,” they wrote, adding:
Congress made clear that its intention in passing Title IX was to prohibit discrimination against women participating fully in all aspects of athletic and academic opportunity at institutions that received federal financial assistance. This proposed rule uses weakly-associated case law and polarizing social concepts to broaden the definition of women and girls to include individuals who identify as women, and in so doing, the intent of the law is destroyed and women are marginalized yet again.
“This proposed rule is a monumental setback for the generations of women who have benefited from Title IX’s enactment over the last fifty years,” the senators asserted. “The Department should not move forward with this proposed rule, but should instead work with Congress on legislative action meant to strengthen the protections afforded to women in the original statute.”
“Any interpretation of Title IX that permits biological males to participate in female athletics does irreparable harm to women as a protected class under the law,” the GOP senators continued. “Contrary to the Department’s assertion throughout the proposed rule text, such harm far outweighs any contrived and speculative benefits the Department and this administration hope to achieve with this action.”
Johnson and Tuberville are joined on this comment by Senators Marsha Blackburn (R-TN), Kevin Cramer (R-ND), Mike Braun (R-IN), Roger Marshall, M.D. (R-KS), Rick Scott (R-FL), Joni Ernst (R-IA), Mike Lee (R-UT), Pete Ricketts (R-NE), Mike Crapo (R-ID), Cindy Hyde-Smith (R-MS), Markwayne Mullin (R-OK), Jim Risch (R-ID), Steve Daines (R-MT), Roger Wicker (R-MS), John Barrasso (R-WY), Cynthia Lummis (R-WY), Ted Budd (R-NC), Bill Cassidy, M.D. (R-LA), Dan Sullivan (R-AK), and Katie Britt (R-AL).
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Susan Berry, PhD, is national education editor at The Star News Network. Email tips to [email protected]