Today, the ACR Project and the Manhattan Institute for Policy Research jointly submitted a comment to the U.S. Department of Education, raising numerous potentially fatal defects in the Department’s proposed alteration of the regulation governing the men’s and women’s athletic programs run by federal funding recipients.
The Department’s proposal would re-write President Ford’s regulation that has long compelled recipients to equalize the athletic opportunities afforded across men’s and women’s programs. Throughout almost all of Title IX’s history, that 48-year old regulation has compelled recipients to equalize the number of teams, number of roster-spots, number and amount of scholarships, and academic supports for athletes in their men’s and women’s programs. The Department would insert into this regulation limitations on the ability of any recipient to “adopt[ ] or appl[y] 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[.]” Far from the minor tweak the Department prefers to imply its rule change would work, this alteration would be transformative.
As we explain in the comment (which you can read below), the Department’s alteration make hash of Title IX’s protections of male and female sports programs, without Congress or the Courts having made any justifying change to the substantive law the regulation would enforce. The Department has claimed that the Supreme Court’s Bostock opinion supports or requires the rule change, but Bostock (closely read) is irreconcilable with the Department’s proposed regulation. Equally problematic, the Department’s proposed addition either requires a thorough reinterpretation of both the existing regulation and of Title IX that would gut federal law’s protections of male and female sports or would make it impossible for any federal funding recipient to comply. Furthermore, despite the Department’s feigned moderation, its proposed rule change would deny funding recipients any real option to pursue a “different approach” to the equalization of opportunities in ways respecting the fairness and safety of women’s sports, functioning instead as a flat-out mandate to terminate all single-sex athletic programs.
The Department has chosen to celebrate Title IX’s achievements in its 50th anniversary year by quietly calling off the entire project of affording men and women equal athletic opportunities. That can’t be right and shouldn’t go forward.