The Biden presidential administration’s Department of Education has proposed reforms to Title IX of the Education Amendments of 1972, which prohibits discrimination “on the basis of sex” in education and related activities, specifically in schools and other institutions that receive Federal Government funding.
While Title IX, which built upon and extended protections in the famous Civil Rights Act of 1964, represented a progressive step toward the legal equality and political freedom of women, its sex-based language has allowed for legal ambiguity with regard to its amendment’s application to the rights of transgender people in education.
Namely, some elected officials and judges interpret “on the basis of sex” to refer to some concept of “biological sex” — and more narrowly to the “female” or “male” marker on an individual’s birth certificate. In other words, this interpretation holds that only “sex assigned at birth” is protected under Title IX. The problem with this interpretation is that how “biological sex” is defined in law is at odds with advancements in science: It has long been accepted by experts that a “biological sex” concept of humans’ bodies that reduces to a simple male–female dichotomy oversimplifies the matter and fails to encapsulate a diversity of experiences.
Put another way, human gametes (eggs and sperm) are indeed binary, but human bodies, and human experiences, are much more complex. Sexual development is now understood as an extremely complex “dance” of genetic, environmental, social, and psychological factors that does not fall into a strict binary. Outdated legal definitions of sex (and thus also gender) in the U.S., and in most countries, fail to reflect this.
On the other hand, some elected officials and judges interpret “sex” in Title IX and other laws to be interchangeable with the related concept “gender,” and therefore also “gender identity,” a legal category that depends not on one’s “sex assigned at birth,” but the way an individual self-identifies, and the way an individual really lives their life.
In 2010, the Obama administration’s Department of Education, in response to growing popular support for the rising transgender rights movement, became the first to adopt the latter interpretation of Title IX’s “on the basis of sex” clause. The department’s Office of Civil Rights (OCR) issued non-binding guidelines to Federally-funded institutions, including colleges and universities, with regard to single-sex classes, and who is eligible to participate in single-sex spaces. The Obama administration’s OCR held that “All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX,” and that schools “generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”
For a few years, between 2010 and 2017, transgender students, particularly in public colleges and universities, enjoyed a modicum — but only a modicum — of non-binding legal protection in education. Transgender students would at last be institutionally recognized as their self-identified gender, and thus afforded protection against sex-based discrimination — a long-awaited and long-fought-for reprieve.
But the reprieve was never consolidated or expanded, and was not to last. Democrats in Congress never passed an amendment to Title IX, clarifying its protected categories in line with the Obama administration’s interpretation, during Obama’s presidency. Thus, when Obama’s second term as president ended and Trump entered office, the new extreme-right Department of Education eliminated the modicum of protection afforded by the previous administration’s guidelines. In 2020, the Trump administration’s Department of Education began to withhold Federal funding from colleges and universities that upheld the Obama administration’s guidelines, or which otherwise protected the rights of transgender students.
Internal documents leaked to The New York Times in 2018 showed that the Trump administration was preparing to “define sex as either male or female, unchangeable, and determined by the genitals that a person is born with,” and planned to institute rules whereby “Any dispute about one’s sex would have to be clarified using genetic testing.”
Again, it should be noted that genetic testing alone is wholly inaccurate in determining sex. As with previous and existing pseudoscientific policies, such as phrenology and blood quantum, the point is not to make “scientific sense” of social phenomena and their legal aspects, but to systematize bigotry and codify it in law.
Parallel battles over Title IX have been fought through the U.S. judiciary.
In the notable recent case Adams ex rel. Kasper v. School Board of St. Johns County, Florida, the plaintiff, a mother of a transgender boy, sued the county school board, which had prohibited her son from using the boys’ bathroom; he was instead forced to use either the girls’ or gender-neutral bathrooms. The plaintiff argued that this constituted sex-based discrimination as prohibited under Title IX. A district court judge ruled in favor of Adams, finding that his right to be protected from discrimination, under Title IX and under the “equal protection” clause of the Fourteenth Amendment to the U.S. Constitution, had been violated by the school board. The ruling represented a small, fleeting win for transgender rights. But the St. Johns County school board appealed, and in 2022, the 11th Circuit Court overruled the district court. The court’s 7–4 majority held that transgender students are protected neither by Title IX nor by the Fourteenth Amendment, and may be legally discriminated against by schools and other institutions.
The U.S. judicial system has become increasingly reactionary in recent years, stacked both with Trump-appointed extreme-right fascists and with Obama- and Biden-appointed “law and order” “moderate” fascists. A diminishing number of liberal judges, and vanishingly few “progressives,” are issuing a proportionately smaller number of legal “wins” for LGBT and women’s rights. In the meantime, the extreme-right conservative crusade, waged by the Trumpite faction of the Republican Party against LGBT people and women, especially in the domains of marriage equality, reproductive healthcare, transgender legal recognition, and care for transgender youth, is gaining traction in state legislatures and Federal courts.
What are the purportedly pro-LGBT, “progressive” Democrats doing to counteract and fight back against this extreme-right fascist Republican crusade? Unfortunately for us, next to nothing. At most, the Democrats are using their one-seat majority in the Senate and their hold on the presidency to block the Republicans from instituting a regime of wholesale elimination against LGBT people, and a regime of absolute repression against women. But the Democratic Party is far beneath the task of fighting for our civil rights and liberties, and that is proven by the fact that, during the two years it maintained majorities in both houses of Congress, and the presidency, from 2021–23, it did next to nothing to convert popular will into law.
The Democratic Party, by and large, represents not progress, not advancements to civil rights and liberties, but merely the “left-wing” of U.S. fascism. It functions as a weight on one “side of the aisle,” that “balances out” the “right-wing” of U.S. fascism, represented by the Republican Party. In the aftermath of every Republican expansion of fascism — take the many extreme-right laws and policies introduced under the Trump administration, for instance — the Democrats assume control of the sinking ship, stabilize the wreckage, and, most importantly, consolidate the expansion. The Democrats do not fight the fascism of the Republican Party; they enable it.
Now, in line with this purpose, the Biden administration’s Department of Education has proposed a new interpretation of Title IX with regard to transgender students. One might expect the outwardly pro-LGBT administration to propose an expansion of Title IX to unequivocally and fully protect transgender students at every level of the U.S. education system.
Unfortunately not. The Biden administration instead proposes a compromise with the fascist Republicans on the “question” of transgender rights.
A document published by the Department of Education on April 6, 2023, titled “FACT SHEET: U.S. Department of Education’s Proposed Change to its Title IX Regulations on Students’ Eligibility for Athletic Teams,” states the following:
The [Biden administration’s] proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are.
So far, so good. Except,
The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation. The proposed rule would … [give] schools the flexibility to develop their own participation policies.
This is a highly euphemistic, weasley way to say that, under the Biden administration’s proposed Title IX rules, “in some instances,” schools will be allowed to discriminate against transgender students. The proposed regulation reads:
If a [Federal Government-funded school] adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity [i.e., more correctly, “that would discriminate against transgender students”], such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.
What this complicated jumble of words means, what the Biden administration is really proposing, practically and bluntly speaking, is this: Discrimination against transgender students in schools is permitted, so long as the school officials are nice about it.
So much for the “most pro-LGBT presidential administration in U.S. history” — as some gullible liberals have lauded Biden. So much for the “party of LGBT rights.”
What we really have is the party of “compromise” — compromise with fascism. What we really have, in the Democratic Party, is the left-wing of U.S. fascism — a left-wing that continually makes overtures to the extreme-right, that routinely sells out the most oppressed for momentary bumps in opinion polls, and that, in the long-run, serves only to consolidate the rise of U.S. fascism in its most brutal, militaristic, terroristic form.
Our only response to the Biden administration’s half-measured, two-faced, compromised “protections” of transgender rights must be an emphatic “Not good enough!”
We must always demand more. We must demand full equality before the law, full and unequivocal legal protections for transgender people, absolute guarantees for our civil liberties. We must demand no compromises with fascism.
And we must not ask nicely. We must rid ourselves of the illusion that we can “vote in” the change we need; we must dispense with the idea that “our” representatives will listen to us, if only we call their offices and write them “firm, but polite” letters.
Comrade Assata Shakur rightly said, “Nobody in the world, nobody in history, has ever gotten their freedom by appealing to the moral sense of the people who were oppressing them.”
No, we must win our demands from our oppressors. We must force them to concede to popular will. Pleading will accomplish nothing. We must speak with the force of the only language our oppressors understand — the language of the unheard oppressed, of mass demonstrations, boycotts, occupations, and more. We must speak the language of organized mass political struggle, and we must not relent until our popular demands are met in full.
Only then will the civil rights and liberties of transgender people be converted from a political ideal to a political reality. Only then will we win the justice we seek.
