TO: Department of Education
FROM: NC Values Coalition
TITLE: Comments on the April 6, 2023 Proposed Regulations for Title IX

The Proposed Regulations, in effect, Would Repeal Title IX’s Protections for Women.
The 1972 Amendments to the Elementary and Secondary Education Act, commonly known as Title IX, were designed to give women and girls educational opportunities that had been previously denied. Those educational opportunities include participation on sports teams.

To ensure fair competition and safety, sports teams have always categorized players. All school sports teams are categorized by age. For example, a high schooler is not allowed to play on an elementary school team. Some sports are categorized by weight. A 200-pound wrestler is not allowed to wrestle a 110-pound wrestler. Teams are also categorized by ability. A less accomplished player will be placed on a junior varsity team, rather than the varsity team. No one has ever accused a school of discrimination by imposing these categories. Rather, common sense dictates that segregation of this sort is justified for the well-being of the individual student as well as the team.

Similarly, due to the physical disparity in women and men, boys have been segregated from girls on sports teams. It is well known that boys are faster and stronger. They have greater lung capacity, longer arms and stronger bones. In every sport, they can out-perform girls. Forcing girls to compete against boys removes the level playing field and destroys fairness in competition.

Boys competing against girls exposes girls to injury as well. An incident in North Carolina in the fall of 2022 is a recent case in point. In interscholastic competition, a biological boy identifying as a girl spiked a ball into a girl’s face at a high school volleyball match. The net is 7 inches shorter for girls volleyball than it is for boys volleyball. The girl is still suffering neurological damage six months later and has abandoned her hopes of obtaining a college scholarship in sports.

The proposed regulations will ensure that those inequities continue and the frequency increases. The proposed regulations will force schools to accept biological boys on girls’ sports teams. The only requirement is that the boy, at the moment he applies to play on the girls’ team, claims that he thinks he is a girl. There is no required diagnosis of gender dysphoria. There are no minimum testosterone levels. There are no maximum numbers of biological boys who can play on a girls’ team. Theoretically, an entire girls’ team can consist of all biological males, as long as they think they are girls. All safeguards in fairness and safety will be destroyed.

The Proposed Title IX Regulations Would Transform Title IX From One that Protects Women to One That Promotes Transgender Rights for both Transgender Women and Transgender Men And Destroys Mens’ Sports as Well.
Under current regulations, women are allowed to play on mens’ sports teams if the sport is a non-contact sport.

Interestingly, the proposed regulations are not directed at protecting only the rights of transgender women (MTF). The proposed regulations also protect the rights of transgender men (WTM) to play on a men’s sports team. Just as a girls team could consist of all biological men who identify as women, if the proposed regulations are adopted, a men’s team could be composed of all biological women who identify as men.

The Proposed Regulations Could Expose Women to Even Greater Harm By Forcing Schools to Accept Transgender Men (WTM) on All Mens’ Teams, Including Contact Sports.
Under current regulations, a school can prohibit a biological woman from playing on a mens’ team if the sport is a contact sport. That provision was put into place to protect women from potential injury based on the nature of the sport.

It is unclear whether the proposed regulations supersede those current regulations. If they do, schools could not prohibit women identifying as men from participating in men’s contact sports. We have already witnessed an injury in December at an NFL-backed Transgender ice Hockey Tournament where a transgender man (WTM) was injured by a biological man identifying as a woman. These proposed rules would allow more similar injuries to occur.

The Proposed Regulations are Nothing Short of Bureaucratic Fiat.
Proponents of the proposed regulations will argue that they comply with the intent of Title IX and are consistent with case law. Nothing could be further from the truth.

Title IX was never intended to protect sexual orientation or sexual identity claims. When Title IX was enacted in 1972, sex discrimination and the ills the law was attempting to remedy had a very different meaning than they do today. Women were excluded from educational opportunities in both the classroom and on the playing field. Title IX attempted to eliminate this disparity. “Sex” defined as something other than biology was unheard of. So, to claim that the sponsors of Title IX intended for the law to apply to individuals who are biologically one sex but think they are the other is simply impossible.

Proponents also claim that the recent Bostock v. Clayton County opinion justifies extending protections to individuals who claim to be a sex inconsistent with their biology. That claim is also erroneous. In Bostock, the issue before the Court was whether Title VII’s protections against sex discrimination applied to sexual orientation. The court said that it did but narrowly tailored its decision to hiring and firing decisions. The court specifically said it did not apply to bathrooms or locker rooms in the workplace. Nor did the decision apply to other federal laws’ protections against sex discrimination. The court specifically said that Title IX’s definition of “sex” was not before the court and the decision could not be used to infer applicability.

Lower court decisions continue to rebuff attempts to expand Bostock’s application beyond its narrowly tailored application.

The Proposed Regulations Will “Bully” Schools into Allowing Transgender Students to Participate on Any Team Based on Their Stated Gender Identity.
The proposed regulations do not set forth a clear, objective standard that schools must meet to prohibit a transgender student from participating on the team of his/her preferred gender. The school must prove that the exclusion meets “an educational objective” and that the school has “minimized harm” to the transgender student. Neither “educational objective,” nor “minimized harm” are defined. A third party will decide if a school meets the criteria on a case-by-case basis.

Due to the undefined and subjective nature of the burden placed on schools, it is clear that this regulatory scheme is designed to bully schools into compliance or face lawsuits, a prospect few can financially afford to bear.

The Proposed Regulations Will Accelerate the Destruction of Women’s Sports.
Participation in sports is not just about developing self-esteem, learning discipline, extending one’s physical endurance, and experiencing the comradery of a team. The main purpose is winning. Otherwise, athletes would not get cut from the team and coaches would not get fired. By allowing biological males to compete on women’s sports teams, if one team in a conference has a biological male player on the team, the other teams in the conference will be encouraged to go out and recruit male players in order to compete at the same level. So, it is entirely within the realm of reality that entire teams in women’s sports may end up being composed of biological males. This likely outcome only accelerates the ultimate destruction of women’s sports and erases the protections of Title IX.

The April 6, 2023 proposed changes to Title IX have nothing to do with providing equal opportunities to women and girls in athletics. Rather, these proposed regulations, if adopted, will transform this law from one designed to protect women to a Transgender Rights law which will eliminate equal opportunities for women in sports and jeopardize their physical safety in competition. This proposed change in Title IX will effectively eliminate women’s and girls’ sports.