Biden’s Title IX gender-identity protections have been blocked in 26 states: What to know

Washington, D.C. Newsroom, Aug 19, 2024 / 12:00 pm

The Biden administration’s expansion of Title IX regulations to offer protection of transgender individuals in women’s sports, educational programs, and school bathrooms has been blocked in half of the states in the country. 

The new rule is currently blocked in 26 states as a coalition of states and conservative groups are fighting the rule in court.

Yet, for many of the country’s most populous states — such as California, New York, Illinois, and Pennsylvania — the rule took effect on Aug. 1. This means that the measure is impacting Americans in many of the country’s largest population centers.

Christiana Kiefer, senior counsel at one of these groups, the Alliance Defending Freedom, told CNA that “the Biden-Harris administration’s radical attempt to redefine sex in Title IX turns back the clock on women’s opportunities, erodes student privacy, and threatens women’s sports.”

“Policies that deny biological truth create real victims — particularly impacting the dignity and safety of women and girls,” Kiefer said. “We are hopeful that the courts will ultimately rule to protect privacy and safety, free speech, and fairness in sports.”

What is the new rule?

In April, the Biden Department of Education redefined the prohibition on sex discrimination in education, enshrined in the 1972 Title IX provisions, to include discrimination based on a person’s “gender identity.” 

The new guidelines prohibit any policy and practice that “prevents a person from participating in an education program or activity consistent with their gender identity.” Schools that do not comply risk having their federal funding cut off.

According to May Mailman, director of the Independent Women’s Law Center (IWLC), the rule means that any male can now assert that he has been discriminated against based on gender identity and claim a right to use a women’s space.

As IWLC director, Mailman said she has seen the personal impact that forcing schools to allow biological men into women’s sports and private spaces has had on young women. Ultimately, she believes the new rule amounts to “the elimination of women’s spaces.”  

“You have Paula Scanlan, who’s an IWF [Independent Women’s Forum] ambassador, she was forced to undress before a fully intact male 18 times a week. And she suffered through it, but how many women would do it? Certainly not all. So, women are going to remove themselves from circumstances that require them to be naked or to do really private activities like urinating in front of males,” Mailman explained.

Scanlan is a women’s sports activist and former teammate of trans-identifying athlete Lia Thomas on the University of Pennsylvania women’s swim team. Originally only speaking out anonymously, Scanlan has since gone public about the emotional impact of having to share a locker room with a biological male had on her as a sexual assault survivor. 

“That is the opposite of what Title IX was created to do, which is to give women opportunities. So, what you’re going to see is Title IX actually being flipped on its head. Women are going to remove themselves from educational programs like sports because it requires such indecency.”

Where is the rule in effect?

A slate of Republican-led states has challenged the rule in court, many arguing that it violates their state laws. As a result, the Biden administration’s changes are currently blocked in 26 states.

The Independent Women’s Forum has published an interactive map showing which states have successfully blocked the rule and in which states it is currently active. To access the interactive map click here.

The Biden Title IX changes are currently blocked in most of the South and Midwest, including Texas, Florida, and Ohio. Because of a Kansas lawsuit that was joined by several other states and conservative organizations, the rule has been blocked in over 3,800 individual schools across the country.

However, the blocks in these states are only considered “preliminary injunctions,” meaning they are temporary, pending further review in the courts. Because of this, the rule could eventually take effect in any of the 26 states where it is currently blocked.

The Biden administration’s Title IX change has already taken effect in 24 states, primarily in Western and Northeastern coastal states, as well as the Great Lakes region.

“It seems like half the country, but it’s actually more than half the country because if you think about population, this is California, this is New York, so for a huge portion of the population, they are now under the Biden regime, where male and female spaces are no longer protected in education programs,” Mailman said.

“In those schools, the Biden administration can absolutely go after a school if it does not police pronouns, if it has male and female locker rooms, if it has male and female bathrooms, if it has male and female scholarships … it affects all education programs that accept federal money.”

What’s next?

On Friday the U.S. Supreme Court unanimously denied the Biden administration’s request to partially enforce the new rule in several states where it has been blocked. Mailman explained in a video posted to social media that while the decision does not change much right now it does signal the Supreme Court may agree that Biden’s changes to Title IX are unconstitutional.

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Ultimately, Mailman believes the fate of this rule depends in large part on the presidential election. If elected to the White House, Mailman said that a Kamala Harris administration is “absolutely going to take it further.”

“Judges are something that the president has a huge say in because they nominate them. You can’t be a judge if you don’t have the president,” she said. “So, the types of judges that Kamala Harris is going to put on the courts are the types of judges who are going to say that absolutely, Title IX is some gender identity law, even though it’s not.”