Defining Sex Is “Unnecessary,” Says US Education Department

Highlights and gaslights from the wild new Title IX regulations

Update: I wrote more about this subject in August, 2024.

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Schools have to let kids use the bathrooms and locker rooms of their choice – boys’ or girls’ – or they’ll lose federal funding under new Title IX regulations issued by the US Education Department today. 

“Title IX” refers to the section of the Civil Rights Act of 1964 that protects students from “discrimination on the basis of sex.” The regs go into effect on August 1.

The ED didn’t just release the regs themselves today. As required by law, it also published the rationale behind them, which includes discussion of comments submitted by the public. 

In this post I’ll focus on a foundational issue, the tricky way in which the ED uses the term “sex.” Then I’ll show you the ED’s glib reasons for dismissing serious public comments.

The regs don’t dictate how schools should deal with boys who want to compete in girls’ sports. I’ll speculate about that omission.

The Education Department’s Goal

The point of the new regs is to protect kids from discrimination on the basis of sexual orientation and gender identity (SOGI):

“In connection with the clarification of Title IX’s scope [to include SOGI], the Department’s view is that articulating this standard will result in greater nondiscrimination protection, which in turn will result in more students able to access education[.]”

But Title IX only protects on the basis of “sex.” The ED is shoehorning SOGI into that word. It’s entitled to interpret or “clarify” Title IX as long as it doesn’t change the statute’s meaning; it will inevitably be sued for overstepping that authority here.

To justify its “clarification,” the ED repeatedly cites federal court decisions that are themselves muddled and in conflict with other federal court decisions. The big one is Bostock (2020), in which the Supreme Court ruled that a different part of the Civil Rights Act banned SOGI discrimination in the context of employment. The same word was at issue there – sex. Justice Neil Gorsuch, a Trump appointee, wrote for the majority.

And now into the weeds.

Sex Is Whatever You Want It to Be

Four models of “sex” are battling it out in courts these days.

1. Reproductive. A person’s sex is determined by the type of gamete their body is patterned to produce (sperm or ova). This is the view of biologists; gender critics have lately been advancing it in litigation against the ACLU and other trans advocates.

2. Hodgepodge (body only). A person’s sex is determined by their “sex characteristics.” One of those is gamete production. Others include genitals, hair growth patterns, voice … Bostock arguably takes this view.

3. Hodgepodge (body and mind). Like the other hodgepodge but with even more characteristics to consider: gender identity, gender expression, and social role. This was the choice of gender doctors for decades.

4. Pure gender identity. Sex is a dumpster fire, y’all, so any time you see that word you should replace it with gender identity. I am channeling the ACLU here, which adopts this model in some of its recent lawsuits.

(For more on defining sex, check out my posts on sketchy endocrinologists and a pivotal 2005 ACLU lawsuit.)

The ED never defined sex in the Title IX regulations before because the term wasn’t much contested. The ED doesn’t define sex in the new regs either — even though it’s stepping into a very hot contest over what sex means. But it adds a new line about sex discrimination:

“Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

The ED explains why it’s not defining sex:

“[P]roviding a specific definition of ‘sex’ … is unnecessary for these regulations. … [D]iscrimination on each of those bases [quoted above] is sex discrimination because each necessarily involves consideration of a person’s sex, even if that term is understood to mean only physiological or ‘biological distinctions between male and female,’ as the Supreme Court assumed in Bostock.”

It sounds like the ED has Model #3 in mind (hodgepodge — mind and body) with Model #2 as a fallback. Why not say that?

These guys want to use Model #4 (pure gender identity). They can’t because erasing biology altogether is too obviously radical and there’s an election in six months.

They also don’t want to say they’re not using Model #4. That would undermine the ACLU’s efforts to ram Model #4 through the courts. Its adversaries would argue that the federal government rejected its view and acknowledged the material reality of sex.

So the ED deploys Model #3 as a compromise: biology stays in the law (“sex characteristics”) and gender identity is added to the law. It refers to Model #2 in noncommittal language (“even if the term is understood to mean …”) to make a legal point without stepping on the dream of Model #4.

And it claims not to be defining sex at all, which is just absurd – these regs are one big redefinition of sex. Everyone trying to comply with them will be asking their lawyer: “wait, what is sex exactly?”

biology stays in the law and gender identity is added to the law

The ED doesn’t provide a meaningful definition of gender identity, either:

“The Department understands gender identity to describe an individual’s sense of their gender, which may or may not be different from their sex assigned at birth.”

Transgender:

“The Department understands the term ‘transgender’ to refer to a person whose sex assigned at birth differs from their gender identity.”

Got it. Except wait, what’s sex? And gender?

Why Leave Sports Alone?

Besides the obvious political reasons to stay silent on competitive sports for now, the ED probably determined its legal justification for genderfy-ing sports was weaker than for bathrooms – it would lose a lawsuit, in other words. Even talking about sports in court would expose the absurdities of employing the Model #3 definition of sex in other contexts.

With Model #3, the ED is defining sex in a way that protects kids based on material reality (“sex characteristics”) and on gender identity. So the rights of girls to privacy and competition do matter under its logic. The ED dispatches with them by simply asserting girls’ interests aren’t harmed by letting boys pretend to be girls. 

Regarding bathrooms and locker rooms:

“The Department does not agree with commenters who alleged there is evidence that transgender students pose a safety risk to cisgender students, or that the mere presence of a transgender person in a single-sex space compromises anyone’s legitimate privacy interest. In many cases, Federal courts have rejected claims that treating students consistent with their gender identity necessarily harms cisgender students in violation of Title IX. … (Cites Grimm, Whitaker, and Parents for Privacy.) 

This “blind eye” logic is enraging – the language itself whitewashes the real question, which is girls being forced to undress around boys. But when the ED is sued, its lawyers can say with a straight face that they’re not aware of transgender bathroom policies ever causing a problem.

Remember, they paint a picture of “transgender girls” as super fey – many judges will intuitively believe these boys aren’t into boobs.

Now apply the same logic to sports. It’s harder to argue girls won’t lose trophies and spots on teams if they’re competing against boys. For one thing, feminists submitted reams of evidence to the ED in their public comments. Plus it’s verboten to assume gay-seeming boys are weak and unathletic. So a judge would be more likely to strike that reasoning down as “arbitrary and capricious.”

And once the topic of sports is on the table, it exposes the lie of the ED’s reasoning: you can’t protect both sex-based rights and gender-based identities. They are in conflict.

We Will Not Be Answering Questions, Thanks

Regs like these often include examples to clarify their meaning and help people comply. But here:

“The Department declines the suggestion [from commenters] to add definitions of specific conduct and practices that constitute sexual orientation or gender identity discrimination because the Department refrains from offering opinions about how the regulations apply to specific facts without first conducting an investigation.”

The ED also refuses to “specify outcomes for all scenarios,” i.e., punishments for schools that decide to protect girls.

Juicy details would be reported in the media. The ED probably prefers opacity and confusion.

Most of Our Haters Are Old Ladies

“Many commenters asked that Title IX focus only on ensuring cisgender girls and women have equal access to education,” the ED acknowledges.

I don’t think “cisgender” is a direct quote from those commenters. Anyway, the ED breaks those “many” into three categories:

• “Two grandmothers shared their memories of being forced to fundraise for basic sports equipment and being told not to pursue certain careers because they were girls. 

• “Another grandmother who worked with pregnant and parenting teens shared her experience witnessing these students face significant obstacles and prejudices. Both she and a minister who has worked with women who have experienced sex discrimination, including sexual assault, expressed concern that the proposed regulations would, in their view, harm many cisgender women and their futures.

• “Some commenters worried that the proposed regulations would negatively impact the developmental progress of their children.“

The first two categories are inexplicably referred to as “grandmothers.” The third is so euphemistic as to constitute deceit. The commenters, of course, were worried that the regs would lead to assault, humiliation, loss of scholarships, and the end of girls’ sports.

Don’t You Want to Protect Gay Kids?

The regs include the term “sexual orientation” but they actually do nothing for gay kids. That’s because they’re redundant. Title IX already protected kids based on sexual orientation under logic that was first articulated by the Supreme Court in 1989 and has since become widely adopted throughout civil rights law.

Remember, gays just want to be treated the same as other members of their sex. Trans people want to be treated like members of the opposite sex. Gays and trans people don’t have the same interests and they’re not served by the same laws. These new Title IX regs are an example of forced teaming.

Miscellaneous Rage Bait

The drive to keep boys out of girls’ bathrooms is motivated by sexism:

“[D]iscrimination based on sexual orientation or gender identity is typically motivated by the same sex stereotypes that limit opportunities for women regardless of whether they identify as LGBTQI+.”

The ED recognizes it’s steamrolling state laws that try to protect girls:

“[I]t is well established that State laws can be preempted by Federal statutes and regulations when it is impossible for a private party to comply with both State and Federal requirements or because State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

The ED claims its “findings are consistent with the guidelines published by well-established medical organizations, which say being able to live consistent with one’s gender identity is critical to the health and well-being of transgender youth.”

Citations: WPATH SOC 8 (the one with the eunuch chapter), Jason Rafferty’s extremely debunked AAP policy statement, and a chintzy article on the AMA website authored by a freelancer. That’s it.

Boys in girls’ locker rooms are like disabled people in nice neighborhoods:

“The Supreme Court has also rejected the notion that the preferences or discomfort of some can justify otherwise unconstitutional discrimination against others. (Cites City of Cleburne, in which a city tried to block the construction of a home for intellectually disabled people.)”

Trans girls are more vulnerable than cis girls:

“[B]ased on the Department’s enforcement experience, listening sessions with stakeholders, and its review of Federal case law, the Department is unaware of instances in which cisgender students excluded from facilities inconsistent with their gender identity have experienced the harms transgender students experience as a result of exclusion from facilities consistent with their gender identity.”

The ED is comparing the scenario of trans-identified boys excluded from girls’ bathrooms to that of regular girls excluded from boys’ bathrooms. The government lawyers are trolling us.