Late last week, the Biden administration released its highly anticipated updated rules for the 1972 Title IX amendments to the Civil Rights Act, which protects people from sex-based discrimination in education. Arguably the most consequential and, judging from social media, most controversial of the updated rules was that sex discrimination includes discrimination based on “gender identity.” On a naïve level, it sounds like a good thing: discrimination is bad, after all. But not in this case. The term “gender identity” changes the meaning of the category “women” to include men and boys who have decided to call themselves women. In effect, the new rules negate the legislation they were supposed to uphold.

How did we get to the point that the federal government now requires schools, from K–12 all the way up to higher ed, to allow males to use women’s and girls’ bathrooms, locker rooms, and showers—and perhaps soon to play on women’s sports teams—or else lose funding? The primary culprit here is the Department of Education’s Office of Civil Rights (OCR), the regulatory office overseeing Title IX compliance. The OCR wields policy along the lines of Humpty Dumpty’s decree: “When I use a word, it means just what I choose it to mean—neither more nor less.”

Over the decades of Title IX’s existence, the OCR has regularly sent universities “Dear Colleague letters” about how to handle new sex-related issues troubling schools and campuses. The agency often softened the missives by reminding its charges that the letters were “nonbinding”—mere “guidance” rather than blunt commandments. That was always a bureaucratic falsehood, however. The OCR could, and did, threaten to strip federal funds from schools that did not comply to its satisfaction. Campus officials were understandably worried about displeasing their bureaucratic masters. And because those masters had a habit of stretching the meaning of words to their liking, compliance could be tricky.

“Sex discrimination” is a striking example. Title IX’s congressional architects wanted to ensure equal treatment of girls and women in hiring, promotion, grading, athletics, and the like. But in the OCR’s “guidance” letters of 1997 and 2001, discrimination grew to include “sexual harassment.” The OCR gave an especially generous definition of harassment—one it undoubtedly believed could protect women but that also happened to expand its power. The definition would require schools to remedy any “hostile environment” or “atmosphere of sexual discrimination.” That “atmosphere” is an open invitation for bureaucratic mischief. The OCR followed its 2001 dispatch with an especially contentious Dear Colleague letter in 2011, in which the agency added sexual assault—a responsibility of the criminal-justice system—to the campus “sex discrimination” portfolio. This power grab led to a fierce debate over the university’s responsibility to the due process rights of accused male students. The issue remains disputed. (For an in-depth discussion of the new rules on sexual harassment/assault, see this explainer from FIRE.

The OCR used a similar tactic with “gender identity.” The original document reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” “On the basis of sex” clearly refers to the binary, biological meaning of sex. There is no mention of the word gender, either standing alone or in partnership with the word “identity.” In 1972, the term “gender identity” was all but unknown; its few appearances were in the pages of obscure medical journals, and these referred to an individual’s understanding of his or her own male or female sex—a meaning quite different from the one used today.

“Gender identity” didn’t originate at the Department of Education, of course. It was a formulation decades in the making, the surrogate child of postmodern feminism, queer theory, and transgender activism. The idea began taking shape in the 1970s, when academic feminists drew a useful distinction between the biological fact of two sexes (male and female) and gender—that is, the culturally constructed norms, behaviors, and roles associated with the two sexes. Feminists argued that much of what people at the time understood as innately female was in fact imposed by social norms. The idea was valid, up to a point. But then came the landmark book Gender Trouble by the theorist Judith Butler. According to Butler, biological sex is also a cultural construct designed to sustain a system of “heteronormativity.” Since the sex binary is all a matter of construction, it follows that individuals could free themselves to develop their own individual sense of “gender identity.” Your identity—whether male, female, binary, or any of the dozens of neo-labels discovered by the Internet—is yours to define, regardless of the shape of your sex organs.

Butler’s theories gained an enormous following and advanced the cause of Gender Studies and Queer Studies in universities across the country and around the world. College graduates took these concepts into the fields of law, medicine, and media, where they would soon dominate. By the new millennium, gender was making its way into policy papers and lower court decisions related to the growing visibility of transgender students. Government staffers picked up on the ideas as well, and in 2011, the OCR included protections for transgender students as potential victims of discrimination and sexual violence.

Reasonable as it was to insist on civility toward transgender students, as a legal matter it was what identity-studies majors would call “problematic.” It opened the door to the primacy of gender identity and its radical implications. A 2016 Dear Colleague letter, once again doing as it pleased with language, asserted that the prohibition against sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” That meant schools had to grant individuals access to sex-segregated bathrooms, showers, and changing rooms based on their identification rather than their biological sex. However, 2016 was the year Donald Trump was elected, and unsurprisingly, that particular Dear Colleague letter was rescinded after he took over the White House. Now, in altered form, it has returned, in last week’s rules written under President Biden. The OCR put aside, for now, the question of whether males can play on female sports teams, but preliminary rules available for comment from the public are not encouraging for those who want their daughters to get a fair chance at starring on women’s basketball or swim teams.

Not surprisingly, given its origin in the postmodern academy, the term “gender identity” has not always lent itself to clear legal reasoning. It is generally described as “one’s internal sense of gender.” So it’s fair to ask: what is gender? It’s common to hear people use “sex” and “gender” interchangeably these days; others revert to the original biological sex and socially constructed gender distinctions formulated by 1970s feminists. Mostly, the courts simply ignore the ambiguity. Alex Byrne, MIT philosopher and author of Trouble with Gender: Sex Facts, Gender Fictions, observes of a Massachusetts law’s definition of “gender identity” (“a person’s gender-related identity, appearance, or behavior”) that it simply “replaces the term to be defined with another one equally in need of definition.”

The new OCR rules use the same sort of circular reasoning. When the rules were first proposed, several commenters objected that “gender identity,” which appears 161 times in the document, is vague and overly subjective. The agency responded: “The term is now well understood as it is used widely in laws and policies, and so the Department determined that—consistent with the approach taken by many courts—it is unnecessary to articulate a specific definition of ‘gender identity.’” If you look at the wording of the precedents cited, you won’t find any help. (One example: “gender identity—their deeply felt, inherent sense of their gender.”) As Boston College political science professor R. Shep Melnick has explained, the courts typically defer both to previous judicial decisions and to federal administrative language in a way that allows them to “leapfrog” into new legal territory without having to bother with irksome definitions. In other words, as a legal concept, gender identity is turtles all the way down.

“The final regulations we released today strengthen vital protections against sex discrimination,” Secretary of Education Miguel Cordona proudly announced when the rules were made public last week. The truth is the opposite. The rules severely weaken Title IX and cast into doubt the very meaning of “women,” whose opportunities it was supposed to advance.

Photo: Klaus Vedfelt/DigitalVision via Getty Images


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