September 13, 2022
The Utah Attorney General and 16 other states are fighting the Department of Education’s attempt to redefine the concept of biological sex to include “gender identity” and weaken the protections women have received from Title IX for the last fifty years. Attorney General Reyes and the coalition submitted formal comment Monday to the U.S. Department of Education opposing the changes.
Issued in June, the Education Department’s proposed rule infringes on parental rights and conflicts with the text, purpose, and longstanding interpretation of Title IX. It would also negatively impact free speech, academic freedom, and campus life.
From the coalition’s formal comments, the Department’s proposed rule “would federally coerce schools to indoctrinate children into gender identity theories” that might be politically popular among progressive parental cadres but are “light on scientific corroboration.” The comment letter from Montana further states,
“This would require everyone in the school environment to accept that being a boy, girl, both, or neither is only a matter of subjective identity. Under this Proposed Rule, schools would have to treat any skepticism of ‘gender identity’ as discrimination/harassment, which would effectively override the fundamental rights of parents to rear their own children in matters of reason, morality, and faith.”
The proposed rule treats failure to affirm a student’s gender identity the same as what is now widely accepted to be discrimination (e.g., excluding girls from the debate team), a school wouldn’t need to obtain parental consent before pushing “gender affirmation” of whatever identity a child announces in school. The school would never have to disclose that affirmation program to the child’s parents and must pursue it even over the parents’ objections.
Further, the Department of Education’s proposed rule would require schools to allow students to participate in any education program or activity consistent with their “gender identity,” for example, allowing a biological male to play on a girls’ sports team by saying he identifies as a female.
Since its enactment in 1972, Title IX has led to an important increase in athletic opportunities for girls and women. The proposed rule would deny equal access to athletics for women and girls and jeopardize their safety.
Citing an incident in which a male teenager who identified himself as a female sexually assaulted two female students in Loudon County, Virginia, the comments explain how the inclusion of gender identity will harm students by eliminating single-sex facilities:
“Single-sex spaces, such as bathrooms and locker rooms, are important for students to preserve bodily privacy and personal dignity from exposure of one’s body to members of the opposite sex. This would fall especially hard on young females because in addition to privacy and dignity harms, girls and women are vulnerable in intimate spaces to being sexually harassed and even assaulted by boys and men.”
Several states, including Utah, have enacted legislation to protect athletic opportunities for women by prohibiting biological males from competing in female athletics and the proposed rule encroaches on their rights to regulate athletics within their boundaries.
The changes the Education Department proposed to the current definition of “sexual harassment” conflict with Supreme Court precedent and will have a detrimental impact on free speech and the free exchange of ideas on campus, making cancel culture the norm and punishing students, teachers, and professors for engaging in protected First Amendment speech. The Montana comment letter explains,
“When combined with the Department’s proposed changes to the current due process protections, the proposed rule will chill protected speech—allowing unscrupulous students and ideologically biased bureaucrats to weaponize Title IX against those with whom they disagree on hotly contested issues of political, societal, religious, and moral importance.”
The comments also called on the Department to clarify that tax-exempt status alone does not constitute “federal financial assistance” for Title IX purposes and to assess the impact of the proposed regulations on families and parental rights as required by federal law.
The Treasury and General Government Appropriations Act clearly states that each agency must evaluate its proposed actions concerning whether they “action strengthen or erodes the authority and rights of parents in the education, nurture, and supervision of their children.”
Led by Montana Attorney General Austin Knudsen, attorneys general from Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and Virginia were also a part of the coalition.
Click below to read the full comments submitted Monday.
In addition to Montana’s Comment Letter, Utah also signed on to the Indiana Comment Letter and Tennessee Comment Letter.