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Washington D.C., Jun 25, 2021 / 16:10 pm (CNA).

The Biden administration’s expansion of Title IX protections could end up hurting women’s sports and contradicting the purpose of the statute, legal experts critical of the new policy told CNA this week. 

The Biden administration this week issued a “notice of interpretation” that it would enforce Title IX protections against sex discrimination in education to also protect sexual orientation and gender identity. The Education Department also sent a memo to educators detailing its policy shift. The memo was issued on the week of the 49th anniversary of Title IX of the Education Amendments of 1972.

In a “Dear Educator” letter issued on June 23, the agency’s Acting Assistant Secretary for Civil Rights, Suzanne Goldberg, wrote that her office “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”

In an email to CNA, Ryan Anderson, president of the Ethics and Public Policy Center, called the administration’s announcement “bad policy,” saying it would open up private spaces for women to biological males identifying as transgender females. 

“This move will set up legal challenges in terms of the privacy and safety of students in single-sex facilities (bathrooms, locker rooms, etc.) where people will now have access to enter based upon how they ‘identify,’ not based on their biological sex,” Anderson wrote to CNA. 

Title IX was originally crafted in part to ensure fairness in women’s sports; critics of the Biden administration’s move said it would allow biological males to compete in single-sex sports teams for women. 

“It’ll also raise legal challenges in terms of equality when males who ‘identify’ as girls can compete against girls,” Anderson said, noting that “allowing males who ‘identify’ as girls to compete in girls-only events undermines the very purpose of girls-only events – creating a level playing field, thus protecting equality.”

Matt Sharp, senior counsel for Alliance Defending freedom and director of its Center for Legislative Advocacy, told CNA in a phone interview Friday that the policy will lead to missed opportunities for female athletes. 

“It’s a growing issue,” Sharp said, adding such policies “can have detrimental impact.” 

“Women’s sports can be devastated by just one or two [biological] males competing,” he said. 

ADF currently represents female athletes in Connecticut who challenged a state interscholastic athletics policy allowing athletes to compete in sports based on their gender identity rather than biological sex. The female athletes argued that having to compete against biological males identifying as transgender females constitutes discrimination. 

“Under this guidance, what we’re seeing in Connecticut could be played out in schools across the country,” Sharp said of the Education Department’s guidance. 

Sharp argued the Biden administration directive is contrary to the intent of Title IX, which was to “ensure a fair and level playing field for women.”

“When we’re talking about sports, biology is what matters,” he said. “We think every student ought to have the opportunity to play sports, but we think the fairest way to do that is maintain, women’s, men’s or co-ed teams.” 

In a public statement issued on June 23, U.S. Secretary of Education Miguel Cardona celebrated Title IX while adding that he was proud of the administration’s actions to extend Title IX protections to “all students, including LGBTQ+ students, in our schools and on college campuses.” 

Goldberg, in her letter, wrote that the federal government must fight “discrimination” against students based on their sexual orientation or gender identity. 

“On this anniversary of Title IX, I recognize the particular vulnerability of LGBTQI+ students and the often overwhelming challenges these students face in education compared to their peers, including feeling less safe, experiencing poor mental health, facing a higher risk of suicide, being more likely to miss school, and facing a disproportionate risk of being homeless,” she wrote.

Schools, however, would be better equipped to address discrimination against LGBT students with their own policies, Sharp argued. The administration should require “everyone to be treated with respect and dignity, without forcing people to embrace gender ideology,” he said.