‘Clerical error’ wipes out thousands of comments on new Biden gender-identity discrimination rule

Washington, D.C. Newsroom, Sep 12, 2022 / 14:00 pm

Today marks the end of the public comment period for the Biden administration’s updated Title IX rule after hundreds of thousands of comments disappeared from the record this weekend in a move the Education Department is calling a “clerical error.” 

The rule has been the subject of outcry from concerned parents and religious groups who will be impacted by it since its proposal in June when the administration re-interpreted Title IX's federal ban on sex discrimination to include “sexual orientation or gender identity.” 

Religious freedom and free speech advocates warn that the proposed rule change could be used to enforce mandates on hiring, bathrooms, using preferred pronouns, and dress codes. 

First reported by Politico in a weekly education newsletter, public comments on the rule numbered over 349,000 in the Federal Register last Tuesday. On Friday, however, more than 160,000 comments vanished from the website, reducing the total to 184,009 entries.

The department told Politico reporter Bianca Quilantan it had found a “clerical error” that “boosted” the number of comments on the rule.

Regulations.gov states that the number of posted comments may be lower than the number it receives because agencies can choose “to redact or withhold certain submissions,” such as those including private information, inappropriate language, or duplications.

However, Sarah Parshall Perry, a senior legal fellow for the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told CNA in an email the disappearance is troubling.

“The jaw-dropping disparity in the Federal Register’s number of total comments received on the proposed Title IX rule from one day to the next, without explanation or disclaimer, should raise alarm bells for American parents whose children at federally funded schools will receive the direct impact of any finalized rule,” Perry said. 

“Whether the sudden loss of nearly 200,000 citizen comments stems from incompetence or obfuscation, the Department of Education has some explaining to do,” Perry stated. 

“One wonders whether if Politico hadn’t prompted the department for a response, the agency would have clarified the disparity at all,” she added.

Regardless of the disparity, the record number of comments reflects vehement concerns from parents fearing the rule will affect their children’s safety in schools or the ability of girls to play on all-girls’ sports teams. 

“Allowing male[s’] entry into girls’ locker rooms, showers, and sports under the nebulous concept of ‘gender identity’ is discrimination against girls,” one commenter wrote, “a violation of [a] girl’s privacy, safety, and equal opportunity.”

“I [am] concerned that this rule also may be used by the department to further their political interests by promoting LGBT curriculum in public schools across the country,” another said. “America’s girls deserve better. I urge you to rescind this rule.”

“If this hits my kids’ school, we will file a lawsuit,” a parent commented.

The Education Department did not respond to a request for comment.