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Biden administration will soon reinterpret Title IX to strike down Fairness in Women's Sports laws

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Rich von Biberstein/Icon Sportswire via Getty Images

President Joe Biden's administration will soon take action to overhaul federal civil rights laws and enact a new regime of Title IX rules for college athletics, according to a report.

The U.S. Department of Education is writing new rules that would make discrimination based on sexual orientation and gender identity illegal under Title IX, a 1972 law that bans sex discrimination in education, the Washington Post reports.

In other words, it would be illegal for states prohibit gender-dysphoric male athletes who present as female from competing against women in college athletics. Schools that receive federal funding must permit transgender athletes to compete according to their self-identified gender or risk losing those funds.

The new rules will be published in April, according to the report. The changes are currently under review by the White House. Next, the government must issue a notice of proposed rulemaking and give the public a chance to comment before they are finalized.

Draft text reportedly reads, "Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.”

Biden's change to federal law, enacted via executive order, would set up a direct confrontation between the federal government and twelve Republican-run states that have passed "Fairness in Women's Sports" laws banning males who identify as girls or women from participating in girls' and women's sports. These states include Utah, Texas, Florida, Idaho, and South Dakota.

Republicans have argued that male athletes who present as female have biological advantages over girls, but this point is contested by LGBTQ+ advocates.

Debate has raged on this issue as transgender swimmer Lia Thomas — a man who identifies as female — controversially won the NCAA Division I championship in the 500-yard women’s freestyle. Thomas swam for the Penn men's team before beginning to take cross-sex hormones and present as female.

Florida Gov. Ron DeSantis (R) rejected Thomas' victory as a "fraud," issuing a proclamation that declared second-place finisher, Emma Weyant, a Sarasota resident, the "real winner."

The Biden administration announced its intention to change how Title IX is interpreted last summer and began holding public hearings on the proposal. The decision followed the Supreme Court's 2020 ruling in Bostock v. Clayton County, Ga., a 6-3 ruling that said Title VII of the Civil Rights Act of 1964 protects gay and transgender workers from employment discrimination. The court majority reasoned that people being fired for being gay or transgender were being treated differently because of their sex, which is illegal.

Because Title IX is very similar to Title VII, the Biden administration has argued that the same reinterpretation of illegal sex discrimination should apply in education.

Both supporters and opponents of the change were given an opportunity to make their case to the Education Department during hearings, the Post reported.

“Under the Title IX, every student who wants to should be able to play and feel welcome as who they are,” said Amit Paley, chief executive of the Trevor Project, a nonprofit focused on suicide prevention for LGBTQ+ youth. “By ensuring that LGBTQ young people have access to a welcoming and affirming school environment, the Department of Education can improve student mental health and well-being and ultimately save lives.”

In contrast, Cynthia Monteleone, a world champion sprinter and girls' track coach, told the department that including transgender athletes in women's sports creates unfair competition. She described how her daughter came in second place in a race against a male transgender runner who played volleyball as a boy.

“My daughter trained for two years for this first race. This transgender athlete trained for track for two weeks,” she said.

Stating that as a coach, she teaches girls that hard work pays off, she asked, "How can I continue to teach this … when, quite literally, average boys can change their identity and beat the top female in the competition?”

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