The Story: The Department of Education’s new rule’s expanding protections for LGBT+ students could lead to punishment for those who disagree with transgender orthodoxy.
The Background: On April 19, 2024, the Department of Education released a 1,577-page document issuing its final regulation under Title IX, intended to clarify sex discrimination by educational programs receiving federal financial assistance. Title IX is a federal civil rights law passed as part of the Education Amendments of 1972. It prohibits discrimination on the basis of sex in any education program or activity that receives federal funding.
Key points of the final regulations include:
Clarification on Title IX’s definition of sex-based harassment and expanded scope of sex discrimination protection, covering stereotypes, pregnancy, sexual orientation, and gender identity
Mandatory responses from schools to sex discrimination incidents
Required supportive measures for affected individuals, ensuring access to education and fairness during grievance procedures
Enhanced protections against discrimination based on pregnancy and related conditions, including specific accommodations like lactation spaces
Reinforcement against retaliation towards individuals exercising their Title IX rights
Support for the rights of parents and guardians in the grievance processes of minors
Prohibition of discrimination against LGBT+ individuals, aligning with the Supreme Court’s Bostock v. Clayton County
This last element is likely to be most significant. In the landmark case of Bostock v. Clayton County (2020), the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, also protects individuals from discrimination based on his or her sexual orientation and gender identity. In this Title IX final rule, the Department of Education incorporates the Bostock decision’s reasoning, expressly prohibiting discrimination and harassment based on sexual orientation, gender identity, and sex characteristics in federally funded education programs.
One issue not addressed by this regulation is transgender athletes. At a briefing on the regulation’s release, education secretary Miguel Cardona said separate guidance on transgender athletes is forthcoming.
“The Department recognizes that standards for students participating on male and female athletic teams are evolving in real time,” Cardona said. “That’s why we’ve decided to do a separate rulemaking on how schools may determine eligibility, while upholding Title IX’s nondiscrimination guarantee.”
The new regulations will not apply to religious educational institutions. Such institutions controlled by a religious organization may claim an exemption from Title IX provisions that conflict with their religious tenets. The religious exemption in Title IX applies to educational institutions or entities controlled by religious organizations and not to individual students or employees exercising their religious beliefs.
The final compliance deadline for schools and colleges to implement the new regulations is August 2024.
Why It Matters: In 1997, Richard John Neuhaus, a Catholic priest and founder of First Things magazine, proposed Neuhaus’s Law: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.”
He meant that when orthodox beliefs are treated as optional within a church or group, they’re tolerated only conditionally. The orthodox are allowed to hold their beliefs (e.g., that a person’s gender is determined by biology) but cannot assert that their views are normative for everyone. Over time, a new liberal orthodoxy arises (i.e., that a person’s gender is determined by chosen identity) that’s intolerant of the old orthodoxy. This new orthodoxy is based on experiential truths (“I feel, therefore I am”) and identity politics rather than on doctrine, tradition, revelation, or even biological reality.
Disagreement with the new orthodoxy is seen as a personal affront and a denial of people’s identities and humanity. Conformity is demanded in the name of acceptance and inclusiveness.
Eventually, the old orthodoxy moves from being optionally tolerated to being actively proscribed and excluded by the new orthodoxy and establishment. Holding the old orthodox belief changes from being one permitted choice among many to something ruled out entirely.
Biden’s Department of Education has signaled the new transgender orthodoxy will now be legally enforced in the sphere of publicly financed education. For example, schools will be forced to allow males who identify as women to share dorm rooms and locker rooms with females. The females who express a desire not to be exposed to the genitalia of the opposite sex will be considered bigots and may be subject to discipline for “bullying” or “harassment.”
This antiwoman discrimination would be cause for alarm and justification for condemning the Biden administration’s policy. But it comes at a time when the transgender movement is moving to a new phase in which they’re more open about their goals.
Last month, New York Magazine published a cover story by Andrea Long Chu, a man who identifies as a woman, titled “Freedom of Sex: The Moral Case for Letting Trans Kids Change Their Bodies.” Chu argues,
We must be prepared to defend the idea that, in principle, everyone should have access to sex-changing medical care, regardless of age, gender identity, social environment, or psychiatric history. This may strike you as a vertiginous task. The good news is that millions of people already believe it.
He goes on to say,
In general, we must rid ourselves of the idea that any necessary relationship exists between sex and gender; this prepares us to claim that the freedom to bring sex and gender into whatever relation one chooses is a basic human right.
What does this freedom look like in practice? Let anyone change their sex. Let anyone change their gender. Let anyone change their sex again. Let trans girls play sports, regardless of their sex status.
Ridding the world of the “idea that any necessary relationship exists between sex and gender” has long been a goal of the transgender movement. But now it’s being openly embraced and adopted as “mainstream.”
For the past decade, critics have pointed out that the transgender movement’s logic entailed that a male teenager could “identify” as female in the morning, as male in the afternoon, and as nonbinary in the evening. The typical ill-informed supporter of transgender views said such an idea was ludicrous. Yet transgender activists have never been hesitant to point out that this is their ultimate goal. They want people to have absolute freedom over their gender identity—even the freedom to change it on an hourly basis—and that no one should challenge such an inherent right.
As Neuhaus noted in 1997,
Disagreement is an intolerable personal affront. It is construed as a denial of others, of their experience of who they are. It is a blasphemous assault on that most high god, ‘My Identity.’ Truth-as-identity is not appealable beyond the assertion of identity.
Unfortunately, there isn’t much we can do to change this trajectory in the short term. Both Biden and his Education Department deserve condemnation for federalizing the issue. Yet as Trump’s Education Department made clear in 2017, they believe the issue of whether schools should accept the claim that a person can choose his or her own sex is to be decided by states and local school districts.
The political solutions thus range from “adopt transgender orthodoxy at a moderate pace” (proposed by the Democrats) to “adopt transgender orthodoxy at a slower pace” (Republicans). Both eventually end up in the same place—the entrenched establishment of transgender orthodoxy.
The Biden administration’s decision comes even as concerns are rising in other countries about the medical transition of minors. In the UK, the Cass report, an independent review of gender identity services for young people, found significant problems with the “gender-affirming care” model that has become standard in much of the West. As Rebecca McLaughlin explains, the report argues that social transition is not a “neutral act” for children and more research is needed on the use of puberty blockers and cross-sex hormones in treating gender dysphoria in young people, given the long-term health risks and irreversible effects. The Biden administration seems intent on doubling down on this flawed approach even as other countries are beginning to question it, motivated more by ideology than what’s truly best for the wellbeing of children struggling with gender identity issues.
What then can we do if we have no promising political options available? Should we Christians resign ourselves that we’ll never persuade the public that Genesis 2 is true? No, we shouldn’t. It may take decades to overturn this new transgender orthodoxy. Let’s prepare accordingly.
The Gospel Coalition