Department of Energy is making Title IX rules?

 In one of the more curious things I have seen in regard to Title IX rule-making, the Department of Energy is attempting to issue a change to Title IX's rule about non-contact sports. 

That is not a typo--Department of ENERGY not EDUCATION. 

This attempt at a direct final rule--a process that is reserved for non-controversial rule changes, i.e., ones that receive no negative or opposing public comments--is sketchy AF. 

The change, set to go into effect July 15, would remove the rule that requires thar when there is not a team for both men and women and the sport is non-contact, that a student must be allowed to try out--just try out, this does not guarantee a roster spot--for the team that does not align with their sex. So if there is no women's golf team but there is a men's golf team, women must be allowed to try for a spot on that team. Again--this does not apply to any contact sports. 

[However, state equal rights laws have allowed women to try out and compete for spots on men's contact sports teams (such as football and wrestling); and vice versa--men have been allowed to compete on women's field hockey teams.]

This rule change--which is indeed controversial and has many public comments opposing it--is said to be the result of the administration's anti-trans agenda and the declaration that there are only two sexes. But even if this were true, the current policy has never attempted to redefine sex (which seems to be what everyone is so deeply afraid of). It relies heavily on a binary understanding of sex. 

So while I do not understand how this advances the anti-trans agenda, I do see how it reduces opportunities for girls (as well as boys). How many is unknown because it would seemingly (based on the reporting I have seen) only apply to schools receiving money from the Department of Energy since they are agency issuing the rule.

Media coverage has said that because the Dept of Energy does fund some schools, it is thus an enforcer of Title IX. This is...an overstatement and a confusing one at that. I have never seen this agency or any of the other federal agencies that fund  schools, "enforce" Title IX. That has always been the purview of the Department of Education. Title IX complaints, for example, go the the Office of Civil Rights which is under Dept of Ed. Investigations are done by those staffers. ANY federal funding (for financial aid, for school lunches, for research grants--when those still existed) means a school must comply with all aspects of Title IX--including the rules specific to athletics. 

But here we have this other DOE attempting to make a direct final rule about Title IX. 

It is simply (in its convoluted way) another attempt to deprive girls and women of meaningful opportunities. This administration ahs already said it does not see NIL and revenue-sharing as an equity issue under Title IX. (The forthcoming lawsuits beg to differ.) The anti-trans athlete policies and rhetoric are covers--sadly they are effective ones--for the administration's misogyny which IS negatively affecting women athletes. 

Even if it prevents very few women from trying out--again just trying out--for men's teams, the symbolism, the discourse, and the malicious intent all have much wider effects. 

Why trans athletes?

 [cross-posted on After Atalanta]

In a continuation of my last post in which I crib from GLAD lawyer Jennifer Levi's thoughtful social media posts, I offer here an explanation of why and how trans athletes became the target of the right.

First, I keep seeing left of center posts/headlines/discourse that highlight how few trans girls/women are competing in sports. I don't love this framing. The underlying premise of inclusion and access does not have a tipping point. 

Perhaps what it is meant to show is how the right is weaponizing this issue. This is both reasonable and true but not really very profound in its assessment. Look at some of the groups and people doing the work of banning trans athletes and you will also see agendas which are racist, and anti-Semitic, and Islamophobic, and anti-LGB as well. 

If I have not already recommended Judith Butler's Who's Afraid of Gender? (though I am pretty sure I have), go read it. Some of what Butler says is what Levi echoed in a recent posting contemplating the hatred and violence and targeting of trans people. But Levi touched on something else too: women's own fear of violence and structural inequity. 

Excerpt:

"Male violence is not a theoretical concern, but a documented fact that shapes society. The statistics are unambiguous. Women navigate the world with constant awareness of this threat, holding keys between fingers when walking at night, constantly assessing their surroundings for potential danger, and being taught from an early age situations to avoid. [...] Alongside this violence exists the stubborn persistence of sexism. Despite decades of legal reforms, wage gaps persist, women remain underrepresented in leadership positions, continue to shoulder disproportionate burdens of unpaid labor, and remain victims of male violence at alarming rates. Yet, even with all that, society struggles to maintain focus on these realities and legislatures have stalled out on finding or even trying to find solutions.

For women, there's something deeply humiliating about acknowledging how entrenched these barriers remain despite advances in formal legal equality. For men, acknowledging sexism often triggers defensiveness. And for society as a whole, addressing systemic sexism requires sustained, unglamorous policy work that rarely generates the emotional engagement that drives political movements."

Levi then argues that trans women, who are referred to as men, become the repository for all these individual feeling and systemic failures.

When I read that, I was struck by how perfectly it aligns with the anti-trans athletes movement. The athletes are described as being men, and the movement describes itself as saving women's sports, and protecting women. I will add that I see Levi's framing as also explaining the overwhelming whiteness of that movement, though she does not explicitly touch on race.

First, so many of the anti-trans athletes folks (in the US) cite Title IX repeatedly in their materials. Title IX is for women--as they define that category--they say. There would be no women's sports without it (not true and super ahistorical). Trans women in sports is the proverbial step backward for them.

What they don't say is that the equity Title IX requires has never been achieved. Women's sports are not even close to achieving equal media coverage or pay or respect. That is a hard pill to swallow.

Celebrations abound during March Madness or Title IX anniversaries or every four years for the Olympics and/or FIFA World Cup but try sitting in a meeting with an athletic director and showing him--with actual facts--that his program is not in compliance or convincing an investor to back a women's soccer team or a company to advertise during the Women's College World Series. Has anyone even tried to have a conversation with ESPN (who loves to tout its support of women's sports) that the ongoing platform they provide for Stephen A. Smith or their firing of Jemele Hill is hypocritical and misogynist? The systems that are preventing equality are fully on display.

But rather than working to dismantle and interrupt these structures, these so-called women's sports advocates point to a trans woman, call her a man, and say "this is the problem." That is their MO. It is their only play. And it disguises the real problems in women's sports; the ones that exist because the systems are made by and for men.

Why is the anti-trans movement in sports (and elsewhere) so white? Because the promise of equality and safety has never been made to Black women and other women of color. In the last post I noted it was because Black women have never been able to define femininity and thus had a discordant relationship with standards of womanhood in which their own experiences are ignored. But Black women's safety has never been centered in societal and political discussions of violence against women. Women as a category is presumed to include all women, but it does not.

And access to and success in sports for Black women, similarly, has never been prioritized. The statistics about who has benefitted from Title IX show that it is white women. Whose bodies, hairstyles, uniforms, personal style, and private lives are scrutinized, criminalized, mocked? Disproportionately it is Black women athletes who are subject to these indignities. There may be dismay at this, but there is no illusion that this is not how the system was intended to function. Black women in sports are more likely to see that it is not trans women who are to blame for how they are treated.

Convincing white women of this is a more difficult task.

No NIL for you!

 This much belated post about the administration's reversal of Biden (out-the-door) era guidance on distribution of NIL monies is cross-posted at After Atalanta. 

I feel a lot of anger...I feel, and not just anger because of a [military] ban, I feel anger and disappointment at large, just you know trans and non binary people have become public enemy one; and once you start taking away the rights of trans and non binary people, the rest of the chips begin to fall.  

            Sam Rodriguez, Petty Officer US Navy (Today, Explained; Vox Podcasts)

This has clearly come to bear already and I would hope most of us are not surprised. Appalled, yes. Surprised, no. The Kennedy Center canceling the Gay Men's Chorus performance is just one example of how public acceptance for violence against trans people.

Denying women athletes equitable shares of NIL monies is another chip. This news is old by now. (Though to be fair these days news seems to get old within hours.) But the presidential administration basically scoffed at the idea that women athletes--those folks so in need of protection that bills and executive orders galore have banned transwomen from sports--will get anything resembling what men will receive. I have yet to see much from the save women's sports folks about this. In a somewhat paradoxical commitment to ideological consistency The Independent Women's Forum, via lawyer Beth Parlato, has said that Title IX does not apply to NIL and that the left needs to stop trying to expand and distort Title IX's original intent. I am not convinced she knows what the law's original intent was or who was supporting it. Also, what group that has Independent Women in its title is arguing against greater economic power for women?? I mean, this one, it seems. I did not see any mention of this on the web pages of Champion Women, the Independent Council on Women's Sports or any of Riley Gaines's socials. 

This is the memo from the Department of Education website (which still exists at the time of this writing). It is short and the case is not compelling. Craig Trainor, the acting assistant secretary for civil right, called the Biden guidance "burdensome." We have heard this before. Probably in a lot of places. But it was a sentiment many white men expressed when Title IX was passed. Certainly we cannot give women the same number of opportunities or the same amount of money, they protested. And Title IX did not require that. Those protests are the reason the three-part test exists. It was so opportunities for participation do not have to be 50/50. Budgets do not have to be equal. Coaching salaries do not have to be equal (though I still think there is more to be done in this area). Things need to be equitable; needs--for medical care for example--need to be met. And financial aid does not need to be equal--but it needs to be equitable. 

The issue is not that is it burdensome to work toward equality. The issue is that it is hard for some people to fathom giving up their privilege. 

What can be done?

1. Lawsuit(s). As soon as things start getting divvied up, someone(s) is going to sue. This seems like a class action type of thing so I predict a campaign around it will emerge. Word of advice to athletes: choose your lawyers and your allies carefully. Make sure you know what their commitment to equality looks like; make sure they understand intersectionality. 
2. Strikes. Withhold your labor, women athletes. I know this is a sacrifice. But a lot of people make a lot of money off of women's collegiate sports these days. Leverage that. 
3. Solidarity. If you are one of those women athletes who gets a lot of attention--use your platform. If the women's golf team's strike is not going to draw eyes because people do not care about women's golf where you are, but they do care about seeing the softball team go to Oklahoma City and you are a member of that softball team...stand with them. Women basketball players are in a great position right now and there are notable activists among them (hey there, Paige Bueckers!). Take a lesson from your comrades in the WBNA and all they have done (and maybe WNBAers should head back to their alma maters and do some strategizing). Also--MEN--some of you are getting screwed by this too. Stand together. Also, also--men who are benefitting--your presence and voice in the name of equality is required. 

NCAA Hypocrisy

  [this is cross-posted at After Atalanta]

{I will post something soon about the new rules on NIL; just trying to keep up/catch up on all the things}

The NCAA's new policy banning transwomen from competing in women's sports arrived (seemingly) minutes after the administration issued its executive order banning transwomen and girls from participating in school-sponsored sports teams. 

The NCAA did include verbiage though which is worth looking at. 

This is the synopsis at the top of the press release: Men's category open to all eligible student-athletes, women's category restricted to student-athletes assigned female at birth, schools directed to foster welcoming environments on all campuses.

But it is not accurate. 

The women's category--for competition purposes--is open to people students assigned female at birth who are not taking testosterone. What we see here is a different standard. Testosterone levels matter only for some people. Taking it knocks you out of the women's category but lowering natural testosterone is not enough to qualify someone for participation. So does testosterone matter or not, NCAA?? It is admitting there is no coherent logic or philosophy for participation--and certainly no science. 

Also of note is this statement: The policy permits student-athletes assigned male at birth to practice with women's teams and receive benefits such as medical care while practicing. 

This statement is not for the benefit of transwomen--this just means that basketball teams can keep using men as practice players. It is weird how some people who have gone through "male puberty" are allowed to compete with women without an outcry about them being hurt or dire warnings about how dangerous it is. 

Finally, someone assigned female at birth who is taking testosterone may practice. 

So is testosterone only dangerous in a competition setting? Does it get turned off during practice? 

Students still have protections...

 ...but we need to demand that they are ensured and applied.

I was reminded by Teen VOGUE (follow them on BlueSky!) that it has been a year since the death of 16-year old Nex Benedict, a trans, Choctaw student in Oklahoma. (note that Benedict was not a registered Choctaw but was claimed by Choctaws; also note Nex used he/him & they/them pronouns). 

As noted in the article, Oklahoma has one of the most virulent set of anti-trans laws in the country. Still, Nex's school had a duty to protect him (and the other students who had reported being bullied because of their gender identity and expression) because of Title IX. 

That HAS NOT CHANGED. I link to again (because the more places it can be found, the better) this chart from National Women's Law Center about what is still required of schools. (This summary is also good.) 

From NWLC:

The Title IX statute (passed in 1972) already protected—and still protects—students from anti-LGBTQI+ discrimination. Several federal appellate courts, including the Fourth, Seventh, and Ninth Circuits, have affirmed that sex discrimination under Title IX includes discrimination on the basis of sexual orientation, gender identity, or both.2 The Supreme Court also affirmed in Bostock v. Clayton County that discrimination based on sex includes discrimination based on sexual orientation and gender identity. Furthermore, the Department of Education has resolved a number of Title IX complaints before the 2024rules were issued, including under the 2020 sexual harassment rules, requiring schools to protect LGBTQI+ students from harassment and bullying, including anti-LGBTQI+ slurs and repeated misgendering. And, since at least 2011, the Department has recognized under both Democratic and Republican administrations that sex discrimination includes sex stereotyping.

 Yes, there is the possibility that Bostock's interpretation of sex discrimination will not hold. But it is still there. 

The Executive Orders are not laws and they are being challenged. 

Participate in the pushback!

Write a letter--better yet an open letter that folks can sign--to members of your administration, your Title IX coordinators and ask them questions about how they will protect LGBTQ+ students. Make demands. Be specific! Make them communicate their obligations to the whole community. Visibility is necessary right now and making it known to the powers-that-be that YOU know what is what is really important. 

What folks, including those I am working in coalition with (also: find people with whom to work that you trust and communicate well with whether that is an existing group like a rapid response network or a union or a newly created coalition) are focused on right now in many communities is the incursion of ICE in our schools. Open letters and demands are flowing. 

This can also work for Title IX and LGBTQ+ rights. When I come up with some good language that can be modified to your needs, I will happily share it here. Also, please reach out if any of this is happening already where you are. 

Not all the protections are gone. Make those that exist known and fight for them!

What's in store for Title IX in 2025 (and beyond), Part III: The transwomen ban in sports

 Over at After Atalanta I have started--and will continue--to write about the executive order banning transwomen from school-sponsored sports. But I wanted to post here a specific Title IX-related consequence of this executive order (and the capitulation of the NCAA via its new policy which is also an outright ban on transwomen in NCAA competitions).

The group and it supporters who say it is "saving" women's sports has endangered them. This is not news; scholars and activists have been saying this for a while. (If you are one of these folks and want me to link to your work here, email me at kristine.newhall@cortland.edu and I will add them to this post). 

A summary of what has already been said well: 

• Banning transwomen and girls is a human rights violation. There is no justification for denying a group of people access to an activity that is lauded (even if problematically) as highly beneficial to mental and physical health. 
• A ban on transwomen, in the name of safety, harms all women and girls by 
• subjecting them to greater scrutiny in terms of their adherence to norms of femininity; this scrutiny is greater for women of color who already are judged by the standards of white, western femininity. Also, this is already happening. Athletes are being called out and accused of being boys/men when they are "too." Too good, fast, strong, aggressive, masculine, spirited....It will not stop at verbal accusations. There will be schools and leagues that put physical exams into effect for anyone wanting to play women's sports. In addition to being an outrageous violation of privacy, and a form of violence, it will deter young girls from participating which will make a lot of anti-Title IXers very happy. Fewer women playing sports means more money for football.
• Relatedly--the confirmation of "biological sex" via physical exam will engender even more sexual abuse of girls and women. 
• Sexual abuse in women's sports is the other major area of critique of trans athlete bans. The focus on protecting women athletes and making sports safe for them is another way the rampant sexual abuse --not by trans women but by cis men--is both covered up and enabled. Johanna Mellis is one scholar activist who has written about this. 

What I am adding: The executive order will negatively affect Title IX compliance. 

One, it is not clear what the Department of Education is going to look like. Of course, any attempts to completely eradicate it will be met with legal challenges. The Office of Civil Rights is in charge of Title IX complaints. It is unclear whether the current administration views OCR as a DEI initiative and will attempt to dismantle that.

Two, whatever version emerges or remains simmering during this chaos will, I predict, be aimed at punitive investigations of schools that allow trans women athletes to compete (or have in the past because this administration is all about revenge) or use bathrooms or locker rooms or even have all-gender facilities. Already understaffed, there is no way this department will be exempt from the firings that other agencies have experienced.

So when your daughter complains about the lack of medical care she receives as a woman athlete compared to athletes on men's teams or the crappy fields she has to play on or why she isn't getting equitable NIL (because this IS coming) and no one from OCR shows up because they have been compelled to "investigate" an all-gender bathroom at North Atlantic College for the Arts remember this moment. 

I am drawn over and over again to the hole in the ship metaphor that I know Cornel West has used to describe a society whose foundation was built on racism and sexism and exploitation. The ship has a hole (so many holes) and those at the bottom of the ship feel the effects first, but eventually the whole ship goes down. 

The ship that is women's sports has been torpedoed by this executive order. The people who will feel its effects most acutely and quickly are those most marginalized already in women's sports: all trans people, intersex people, and cisgender women of color. But the waters are rising. All queer women should be fighting this. Not that long ago people suggested that lesbians were physically superior to heterosexual women and "science" was used to back this claim as well. Whatever comfort or safety queer women have attained in sports is also in jeopardy. Backers of these bans are not good with nuance. 

But eventually, white cis hetero women and all the others taking a victory lap after having "saved" women's sports, the waters will reach you too. 

You can tell NCAA leaders what you think of the ban via email:

• NCAA President, Charlie Baker - cbaker@ncaa.org
• NCAA Managing Director of Inclusion, Amy Wilson - awilson@ncaa.org
• NCAA Chair, Board of Governors, Linda Livingstone (President, Baylor University) - Office_of_President@baylor.edu

What reversion to 2020 means

This administration's Department of Education issued a memo last week stating that the 2020 guidelines are now back in effect. My institution sent an email to that effect recently as I suspect many others did. But the specifics of what the change meant were not provided (not surprising given how opaque the process remains nationwide). 

The Biden rules were only recently implemented so perhaps the old rules are not so foreign, but given that this administration called Biden's DOE take on the law "an egregious slight to women and girls" it is worth (re)examining what the DeVos era rules require. 

The 2020 rules were a more subtle version of countering ideologies that conservatives saw as part of a DEI agenda, including supposed discrimination against men during the adjudication processes college and universities were using to respond to accusation of sexual assault. 

So we are back to:

• the often times traumatizing mandate for live hearings in which the accused can question the accuser
• a narrower definition of sexual assault and harassment that required it be "so severe, pervasive, and objectively offensive" that it effectively denies a person equal educational access.
• I insert here my plug for the 2024 book On the Wrong Side: How Universities Protect Perpetrators and Betray Survivors of Sexual Violence by Nicole Bedera, which I am making my way through now. Bedera talks about the book, whose research occurred during the Trump admin part I but before finalization of the DeVos rules, here. (Spoiler: she doesn't think that any administration's rules went far enough.) A main theme is how many victims leave school after encountering barriers during the reporting process. 

• a narrower scope for what kind of cases schools can pursue in terms of location of alleged incidents (on campus or at school-sponsored events)
• reduced liability for schools who must show "deliberate indifference" to an accuser's report of sexual or domestic violence; deliberate indifference is difficult to prove

Biden's DOE rules notably expanded protections based on gender identity and are arguably the reason they were legally impeded and eventually overturned, which happened before the inauguration, even though the current DOE seems to be taking the credit. 

Now we have an even more difficult reporting process for sexual assault and harassment and fewer protections for all victims of gender-based* assault, discrimination, and harassment.  

So time for another reminder: women's issues are trans issues are race issues are poverty issues. This reversion to 2020 rules were certainly part of the effort to appeal to conservative values by vilifying trans people, the larger LGBTQ community and their allies and they will not protect women and girls, an action this version of the administration has no interest in. 

* not sex because I don't hear a lot of discourse about how that XY chromosome was dressed or the amount of alcohol the human with less than 5 nanomoles/L of testosterone had to drink