Reprinted from Law & Liberty
On June 23, 1972, Richard Nixon signed Title IX into law as part of the Educational Amendments of 1972. Co-sponsored by Senator Birch Bayh and Congresswoman Patsy Mink, the law states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
This month marks Title IX’s 50th anniversary, and we ought to celebrate the law’s successes: the removal of arbitrary barriers to women in admissions, vocational tracks, and educational activities. These were the goals of the bill’s original sponsors, like Edith Green, who claimed the law was “designed to end discrimination on the basis of sex—in admission standards to undergraduate or graduate schools.” Fifty years after its inception, Title IX has exceeded these expectations. While women comprised only 39% of undergraduates in 1960, today women make up 59.5 % of U.S. college students. Athletics has seen a 54% increase in the number of women playing college sports and a 990% increase at the high school level. Some experts even attribute American women’s 2016 Olympic domination to Title IX.
However, now is also a time to assess the ways in which Title IX has evolved, both for good or for ill. Title IX’s uses and abuses have pushed the law in a number of unanticipated directions. First, the “reversal of the college gender gap” in undergraduate admissions has resulted in successful Title IX challenges to women-only programs. Despite Title IX’s prohibition of “preferential or disparate treatment to the members of one sex” in order to correct numerical imbalances, schools may eliminate male teams with impunity (with the exception of Clemson University), but are punished when cutting female teams. The Office for Civil Rights (OCR) has increasingly afforded itself unprecedented authority to add new rules, regulations, and tools to enforce Title IX without input from congressional lawmakers, especially in the area of peer sexual misconduct adjudication. Finally, appointees in the Department of Justice (DOJ) and OCR have attempted to redefine the words that comprise this statute in order to permit individuals access to the bathrooms, locker rooms, and athletic teams that comport with their gender identity as opposed to their sex. Each of these developments reflects and exacerbates the bitter controversy that has characterized Title IX’s tenure.
Constitutionalists and Anti-Constitutionalists
Title IX’s legacy at fifty tells a tale of two statutes—one that stretches and transforms the law by engaging the federal bureaucracy and courts in “institutional leapfrogging,” with the other struggling to maintain Title IX’s integrity within the guardrails of the statutory text, constitutional requirements, and the rule of law. The controversy is not simply a clash on policy—what should Title IX do—but a foundational dispute between those I characterize as “constitutionalists” and “anti-constitutionalists” regarding how the law has been transformed and enforced.
I apply the term “constitutionalist” to individuals who are committed to policy making by constitutional norms rather than bureaucratic fiat and judicial creativity. They recognize that the constitutional safeguards and legal traditions including the separation of powers, rule of law, due process, and limited government are precisely what made Title IX’s successes possible. They view Title IX’s transformation as problematic, primarily because of the unhealthy transgressions of America’s legal traditions.
In contrast, “anti-constitutionalists” aim to expand Title IX’s scope as expansively as possible, using whatever means enable the desired policy. For these individuals and groups, the ends justify the means, and thus their actions are at times anti-constitutional by design. For example, U.S. Associate Attorney General Vanita Gupta perceives due process rights of the accused as “the antithesis of what Title IX was intended to do.” Her disdain for legal protocols is evidenced by the manner in which she and Catherine Lhamon co-issued a 2016 Dear Colleague Letter on Transgender Students to change the interpretation and implementation of Title IX policies rather than by following legal processes. Sadly, the anti-constitutional and constitutional worldviews are irreconcilable.
Title IX also uncovers ideological divisions between gender equity advocates and equal rights activists. Those supporting gender equity celebrate Title IX’s anniversary by offering toolkits and equality checklists to remind of the work still to be done. The day highlights (just as the 30th, 35th, 40th, and 45th anniversaries did) the lack of equity in athletics and science, as well as the lack of justice for transgender persons and survivors of sexual misconduct. These advocates include the National Coalition for Women and Girls in Education, the National Women’s Law Center, Women’s Sports Foundation, American Civil Liberties Union (ACLU), Association for Women in Science, and the American Association of University Women. Their goal of equity under Title IX is not mere nondiscrimination, but affirmative actions to ensure that the number of women in athletics and STEM fields mirrors females’ proportion of the population at the institution. The justice they seek requires a greater number of convictions for perpetrators of sexual assault. The urgency of equity and justice may require “Work-Arounds,” creatively maneuvering the lawmaking process, or other anti-constitutionalist measures.
The other camp of equal rights advocates is comprised of otherwise incommensurate voices including civil liberties groups like the Foundation for Individual Rights in Education (FIRE) and Stop Abusive and Violent Environments (SAVE), legal professionals in the National Center for Higher Education Risk Management (NCHERM), the American Association of University Professors (AAUP), and academics like R. Shep Melnick, Philip Hamburger, Jonathan Turley, and others. These groups and individuals incline in a constitutionalist direction, though disagree on the policy objectives of Title IX such as how to measure equal athletic opportunity, how to ensure protections for sexual assault survivors, or how best to protect transgender students. Their disparate views, however, are transcended by their common ground—concern for the way in which Title IX has been transformed outside of the legislative process. As flawed as the American republic may be, constitutionalists see compromise and reconciliation within the bounds of our constitutional guardrails as the only true means of protecting all students’ rights.
Title IX’s anniversary is a time of reckoning. Will the next decades feature a further erosion of American republicanism, or will the nation’s lawmakers and the courts require that the law, the People, and the Constitution reign? The legacy of Title IX is mired by extralegal transformations enacted, judged, and enforced by unelected administrators in the Department of Health, Education, and Welfare (HEW) and later in the Office for Civil Rights (OCR), with the support of Supreme Court decisions. At times these unelected officials snub the statutory language and history of Title IX, but in the worst cases they violate clearly established legal traditions like separation of powers and due process of the accused. Thus, an adequate review of Title IX’s transformation compels scrutiny of the rule of law in general.
Below I discuss the two most brazen transformations of Title IX’s half century—the 2011 Dear Colleague Letter on Sexual Violence and the 2016 Transgender Letter—both of which continue to influence Title IX litigation despite having been rescinded. I highlight the extralegal means by which each was promulgated in order the clarify the differing perspectives of constitutionalists and anti-constitutionalists.
Sexual Misconduct and Administrative Misconduct
The 2011 Dear Colleague Letter (DCL) is revolutionary both for its content that violated standing law and for the manner in which was promulgated, which violated the Administrative Procedures Act (APA), the law that governs what bureaucratic agencies can and cannot do in their interpretations of law. Assistant Secretary of Education for Civil Rights Russlynn Ali issued the 2011 DCL to respond to “universities’ botched responses to sexual harassment and sexual violence.” A “Dear Colleague” letter constitutes official communication of an executive agency’s interpretation of the statute it enforces. The content of such letters is technically not law, but often operates as such. The OCR enforces DCLs by threatening to pull the federal funding of noncompliant institutions. Ali’s letter required colleges and universities to create justice systems to adjudicate sexual misconduct among students, essentially to hold rape trials on campus. Without the due process constraints of criminal proceedings, these campus trials were required to be prompt, to shield victim/survivors, and punish perpetrators.
Most of the controversy surrounding on the 2011 DCL and its 2014 follow-up focused on the lowered evidentiary standard it mandated in campus adjudication—it only required a “preponderance of evidence” to find someone guilty of sexual assault and thus implement punishments, rather than the “clear and convincing standard” used by most schools prior to 2011. The letter also included equally troubling new (and often vague) procedural requirements that campuses were expected to implement, some of which were not clearly inferred from Title IX’s text, and others of which violated very basic due process protections. The net effect of these mandates was to increase the likelihood of guilty findings. Unelected OCR officials enacted these new laws without congressional oversight, without legal precedent, and absent a draft or the notice-and-comment period required by the APA. They diverged from legal protocol either intentionally or due to ignorance. The former would make them anti-constitutionalists, who believed that their desire to punish sexual predators transcended the need to abide by constitutional shackles.
Critics and defenders agree that the 2011 DCL brought much-needed attention to the scourge of campus sexual harassment and violence. In requiring schools ensure safer environments and provide greater resources to survivors of such heinous acts, it aimed to correct decades of neglect. However, while proponents applaud the letter’s shift towards easier and prompt convictions of the accused, its critics have challenged the extralegal, or unconstitutional, nature of the DCL itself. The letter’s lack of adherence to the APA, failure to get notice-and-comment, and weak due-process requirements culminated in its systematic failure to protect the rights of all students. This improperly vetted Title IX paradigm created nationwide chaos in the form of over 700 lawsuits brought against universities on behalf of accused students. After their frantic attempts to comply with the OCR’s legally questionable and ambiguous rules, schools began losing lawsuit after lawsuit for complying with the DCL.
Constitutionalists understand that this unprecedented wave of litigation could have been avoided had the OCR followed APA protocol, comported to Title IX’s text and statutory history, and gathered feedback from stakeholders for these substantial changes. In the end, the 2011 DCL and its 2014 Q&A were rescinded in 2017 by a DCL and the process of replacing them began. Still, the 2011 letter heavily influenced DeVos’s regulations, which assume colleges’ responsibility to maintain parallel justice systems on campus. The official regulations permit the “clear and convincing” evidentiary standard, clarify investigation formats, and add procedural protections such as the presumption of innocence, a live hearing, an appeals process, and a cross-examination of witnesses. Unlike the 2011 DCL and 2014 Q&A, these regulations are difficult to overturn because they comport with standing law and followed the APA’s requirements.
Anti-constitutionalists who supported the 2011 letter see its formally adopted and transparently-debated replacement as an “abomination” that “erodes hard-fought protections and rights for victims.” Their belief that the feelings and experiences of survivors trump concerns for the rule of law is exemplified by one commentator, who urged the Department of Education (ED) to “spend more time interviewing victims of sexual assault than worrying about whether the accused’s life will be ruined.” Rather than attempting to persuade a divided Congress of the wisdom of their policy preferences or seeking to go through the strict notice-and-comment requirements of the APA, anti-constitutionalists want to send sympathetic bureaucrats and judges to create new rights. Understandably, they fear that the required legal processes may derail their agenda. Nevertheless, the false dichotomy between the rule of law (due process of the accused and APA requirements) and protecting sexual assault survivors is mere rhetoric used to achieve a policy goal.
In contrast, bipartisan constitutionalists insist that sub-regulatory guidance should be used sparingly. Despite sometimes disagreeing on policy such as the specific guidelines for campus investigations, the extent to which colleges should police student sexual behavior, or the appropriate evidentiary standard for investigations, they share common ground regarding the due-process rights of all students. While differing on the exact outlines of any specific policy, constitutionalists insist that the rule of law, separation of powers, and other constitutional safeguards are nonnegotiable. Without these, they maintain, no one’s rights are protected, as the experience with the 2011 letter demonstrates.
Redefining a Word to Transform Law
Equally bold, though little discussed, was the 2016 “significant guidance,” issued jointly by Catherine Lhamon (OCR) and Vanita Gupta (DOJ), requiring schools to “treat a student’s gender identity as the student’s sex for purposes of Title IX.” The directive aimed to extend Title IX protections to transgender students and to influence a pending court case that was likely to be heard by the Supreme Court. The letter resulted in two lawsuits by twenty-one states alleging that the federal government “bypassed the necessary procedures” and “twisted the meaning of Title IX.” U.S. ED Secretary Betsy DeVos rescinded the letter in 2017, so it is null and void. However, this DCL sparked an ongoing debate and devised a new anti-constitutionalist tactic—the redefinition of the words that comprise a law.
None of the legal challenges to the Transgender Guidance disputed the goal of providing a supportive educational environment for all students. Reasonable human beings recognize that no student should suffer bullying harassment, be denied access to education, or be made to suffer intentionally due to gender identity. But as noble as letter’s policy goal may be, there are substantial policy, procedural, and legal questions surrounding this dispute.
First, the letter transgressed the APA mandated processes, but also employed a new anti-constitutional tactic—it redefined a key word in Title IX’s statute. The 2016 DCL redefined the term “sex” in Title IX, or “biological sex,” as “sex assigned at birth,” which is “the sex designation recorded on an infant’s birth certificate.” With this assertion, the OCR and DOJ transformed a term indicating a genetic designation (sex) into a concept signifying a choice based upon mutable traits “assigned at birth.” Lhamon and Gupta employed this new conception of sex (“sex assigned at birth”), not due to a new consensus in the scientific or medical community, but to achieve a policy goal.
To clarify, the World Health Organization (WHO) distinguishes between the terms “sex” and “gender.” As defined by WHO and utilized by the Council of Europe, “sex” refers to whether one is “born either male or female,” that is, the “biological and physiological characteristics” of males and females, typically focusing on the distinct reproductive functions or biological structures (gonads, sexual organs, chromosomes, hormones). In contrast, “gender” refers to “the socially constructed roles, behaviours, activities, and attributes that a given society considers appropriate for men and women.” The term “gender” includes the stereotypes and social meanings that society attaches to being a male, female, or other. As WHO explains, gender is fluid, as it is determined by choice and opinion; sex is determined by physiology, biology, and chromosomes.
It should be noted that intersex individuals may need to “be assigned” a sex when one does not clearly emerge upon birth. So, the concept “sex assigned at birth” is more inclusive in accounting for intersex individuals, but it is an altogether different concept from “sex.” In proceeding as if “sex,” “gender,” and “sex and sex assigned at birth” are interchangeable, the 2016 letter conflates the concepts and proceeds as if genetically determined sex does not exist. The goal was to alter the text of Title IX to change its requirements. And while many today confuse the terms “sex” and “gender” because government officials, advocates, and laypersons erroneously use them interchangeably, such was not the case when Title IX was drafted. Indeed, the term “gender” was not uttered in the congressional debate over Title IX.
Second, these issues are controversial and ongoing, and should be debated. The 2016 Transgender Guidance is rarely scrutinized because some believe the matter was settled by Bostock v. Clayton County (2020), which ruled that the prohibition of discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 also bans gender identity and sexual orientation discrimination. But the matter of Bostock’s influence on Title IX is far from settled, according to Justice Gorsuch, who clarified that Bostock does not apply to “sex-segregated bathrooms, locker rooms, and dress codes” because “none of these other laws are before us.” Athletics was also not addressed by the court. In response, President Biden issued Executive Order 13998 and Executive Order 14021, and the ED sent a Dear Colleague Letter to assert that Title IX’s ban of discrimination “because of sex” include bans on sexual orientation and transgender discrimination.
It is unclear what these broad declarations mean in practice. A national debate over whether transgender women should be permitted to compete on female teams rages across the country. While Education Secretary Cardona has made clear that he supports and will not ban transgender athletes from participating on the team of their choice, how the ED will interpret and enforce their broad and vague declarations is unclear.
Constitutionalists recognize that SCOTUS’s Title VII ruling raises legitimate legal questions regarding the meaning of “because of sex” under Title IX, issues which must be addressed explicitly. They wish for Congress to debate these issues and to create a transparent policy as lawmakers are expected to do. Anti-constitutional advocates applauded the 2016 letter because such policy was unlikely to pass in Congress, as evidenced by the stalled Equality Act. Their passionate belief in accomplishing justice for transgender individuals causes them to identify the lengthy legal process as injustice itself.
Given that both Catherine Lhamon and Vanita Gupta have been promoted by the current administration, one should expect more of the same anti-constitutional attempts to alter Title IX. And members of Congress are getting in on the anti-constitutional game. Rather open debate on the meaning of Title IX or making progress on the Equality Act, 59 members of Congress asked Secretary Cardona to issue a nonenforcement directive on parts of the DeVos Era Title IX’s regulations, despite consistent failed attempts to challenge the rules legally. In other words, they prefer Secretary Cardona to stop enforcing standing law before they are able to alter it.
Constitutionalists reject these tactics and separate the question of policy from the question of the rule of law. While they may disagree on specific elements of policy, such as whether students should be permitted to join sex-segregated STEM programs or whether transgender persons can select their athletic team based upon identity, their agreements transcend any of these disputes. The rule of law serves everyone, even their political opponents.
Our Constitutional Future?
A Constitutionalist People believe that a written constitution constrains the government by prohibiting certain actions and requiring that policy making take place in a particular way. It is not enough that the policy choice is constitutional—it must be enacted in the manner prescribed by the Constitution. Potentially the most powerful enforcement mechanism in the United States is the rule of law, or the language of the law itself, including the Constitution itself as the law of the land. The language of a law serves as a guide, providing a stable foundation for both interpretation and precedent.
The clear meaning of the words comprising a law at the time that the law was adopted tells us what rules the lawmakers were signing into law. Laws have no meaning without the carefully selected language chosen to comprise their purpose and scope. Republicanism does not exist if members of the government remain ignorant, ignore, or willfully set aside legally mandated processes and laws. This is true of all laws including the Constitution itself, as well as civil rights laws like Title IX.
Title IX’s story is a cautionary tale probing to the heart of our constitutional republic. We should use this anniversary to remind ourselves not only of struggles to attain equal rights for women, but also of the best means of maintaining those rights—laws and institutions that are to be revered because they are the only reliable means we have of protecting individuals. They cannot and should not be transformed or remade by whoever happens to wield power at the moment.
This piece is titled “A” Tale, instead of “The” Tale of two statutes because this story could be replicated in many of the federal agencies that operate under the federal contract program. In the end, Title IX has always had two faces. Either it is a law with content to be respected, or it is a blank slate whose meaning is in the eye of the beholder (such as OCR and SCOTUS). Either the words that comprise the law have meaning, or the words and laws themselves are meaningless. Title IX will either go the way of constitutionalists, or it will be used to erode further our constitutional traditions.
Within the constitutional framework, there is considerable room for policy disputes relating to equality of the sexes. Will Title IX’s next fifty years be the best of times for women’s equality, or the worst of times for women’s equity? The age of the gender-gap reversal, or the age of the glass ceiling? The epoch of due process, or the epoch of decreasing rights for sexual assault survivors? The season of American women’s domination in sport, or the season that ends women’s sports? We the People, assisted by our elected representatives, should get to decide within the bounds of the U.S. Constitution.
