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 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.