Last week, I wrote an article in Newsweek arguing that despite news coverage characterizing President Joe Biden’s proposed regulation on transgender participation in school sports as a moderate compromise, the structure of the proposed rule provides wide latitude for ideology-driven administrative abuse. But, because of the necessity to explain the most salient features of the regulation to a broad audience, I omitted one item that suggests not just that this regulation can be abused, but that it most likely will be.
The Department of Education’s Office for Civil Rights (OCR) will apply a two-part test to determine whether a school district may base athletic participation on biological sex. The first part, as I explained, is that a school district must justify that restriction on the basis of achieving an important educational goal, such as athletic fairness or injury prevention. The problem with that is OCR can arbitrarily decide whether it accepts a school district’s rationale. The second part, which I omitted, is that the school district must show that its policy minimizes harm to the excluded student. The problem with that is it makes no sense.
It is either impossibly difficult or ridiculously easy to comply with. It could be impossibly difficult because the harm of excluding a student from a sports team can’t possibly be mitigated—the exclusion is the harm. No measure taken after the exclusion could possibly mitigate it. (A participation trophy for non-participation probably wouldn’t make the kid feel better.) To the extent that the regulation explains itself on this provision, it references that some sex-verification methods may be more harmful than others. There certainly are humiliating ways that a school district could try to go about verifying a student’s sex. But all a school district need do is consult a student’s school records, and it’s well-nigh impossible to imagine a school district doing anything more than that.
Unfortunately, the fact that the second part of OCR’s test makes no apparent sense on its face does not render it functionally meaningless. “It’s definitely not boilerplate,” says Robert Eitel, former senior counselor to then Secretary of Education Betsy DeVos and president and co-founder of the Defense of Freedom Institute. “The harm minimization requirement is the trump card, so to speak. . . . Everything that these people write has a purpose.”
The only plausible purpose of the harm minimization requirement is to cut a blank administrative and legal check to reject school district policies predicating sports participation on biological sex. Demanding that someone either satisfy you by doing something impossible or by agreeing to do what you say is a great way to get someone to do what you say. School districts, faced with the prospect of losing federal funding unless they comply with an impossible request, will be all the more likely to fold under pressure from OCR. And if, as has never actually happened but theoretically could, a school district refuses to comply and OCR renders a judgement stripping them of their funding, the harm-minimization requirement would substantially improve OCR’s chances in a court challenge against their decision.
As I argued in Newsweek, it is theoretically plausible that the Biden administration’s Title IX regulation could be implemented in a way that would perfectly satisfy most conservatives. And as Yogi Berra once said, “it’s tough to make predictions—especially about the future.” But the text of the regulation does not bode well for modest and deferential enforcement that maximizes the discretion of local and state authorities. Taken as a whole, it strongly suggests that—contra the coverage about it being a moderate compromise—it will be a vehicle for aggressive, ideology-driven enforcement. It may well soon be that whether or not your school is permitted to have a girls’ basketball team where only biological girls can play will depend on who sits in the Oval Office.
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