The public comment period for Education Secretary Miguel Cardona’s proposed changes to official Title IX regulations ended in August. The Education Department received over 210,000 comments, with around 40 percent of those comments available on a public database.
In June, the department released over 700 pages of proposed regulations. The two most controversial provisions—a reversal of many of the due process protections for accused students during Title IX investigations and a redefinition of “sex discrimination” to include discrimination based on sexual orientation and gender identity—ignited a flurry of both criticism and praise from media commentators. It is unclear when official rules will be released or by how much, if at all, the proposed regulations will differ from the final rules.
While the comment period is theoretically meant to guide regulators’ decisions and provide feedback on their rules, a large portion of the public comments appears to be expressing consternation over a subject irrelevant to this most recent spate of Title IX rules: transgender athletes in women’s sports.
Cardona’s proposed regulations purposefully left out specific rules surrounding transgender athletes, instead electing to “engage in a separate rulemaking to address Title IX’s application to athletics.”
Under the new rules, the Department of Education would understand “sex discrimination [as including] discrimination on the basis of . . . sexual orientation, and gender identity,” The proposed regulations would also bar schools from “adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity.” While these proposed regulations would likely apply to other sex-segregated facilities in schools, such as bathrooms and locker rooms, the department has explicitly waited to announce how they would apply to sports.
(There is also reason to believe there will be a legal fight before the proposed regulations could even be enforced in some states. In July, a federal judge placed a preliminary injunction against the new definition of sex discrimination, arguing that it directly conflicts with existing laws in 20 states.)
Despite this, of the 88,000 comments available on the regulations.gov website on September 23, a significant portion appeared to be, at least in part, expressing concern about transgender athletes. For example, the terms “gender” and “sports” appeared in 28,301 comments. “Sex” and “sports” appeared in a similar 28,646 comments. The term “sports” alone appeared in 37,777 comments.
One common comment—presumably a sample letter provided by an organization, though I wasn’t able to determine which one—read, “This proposed rule forces girls to give up their educational opportunities to males who perform better than they do.” While it doesn’t explicitly mention sports, this comment clearly seems to refer to the concern that trans women athletes will take sports scholarships or places on teams from female athletes.
In contrast, search terms relevant to due process concerns for students accused of sexual assault and other violations were far less common. The term “due process” gained 3,032 hits, and forms of “accuse” (other forms of the word, like “accuser” and “accusation,” were included in the search) appeared in only 2,796 comments. The term “victim” appeared in 2,422 comments.
The intensity of the attention focused on transgender athletes, even as the subject has only tangential relation to the current regulations up for debate, indicates that public concern over the issue isn’t going away anytime soon. The public comments submitted on Cardona’s proposed Title IX regulations show how desperately comprehensive rules for transgender athletes are needed. In particular, we need a rule that recognizes that both women and transgender women are protected classes—both have liberties that need to be preserved.
However, the degree to which the subject has captured public attention will make it difficult to develop sensible policy. Good, minimally invasive policy is rarely compatible with a culture war.