Genderizing Title IX in US Schools

Under the radar until the last couple of years, gender ideology has gained a foothold in nearly every arena, forcing US society to step back and interrogate basic assumptions we have never had to question before: What does it mean to be born male or female? Can sex change depending on identity? Should law continue to make any distinctions based on sex? Should health care offer physical solutions to inner-identity beliefs or desires? These are the kind of background questions lurking behind political battles over “transgender women’s inclusion in women’s sports categories” and “parental consent for schools to socially transition trans kids” and “gender-affirming medicine provided to minors.”

In the US, the “gender war” is raging in a whirlwind of procedural avenues: national and state legislatures, federal and state courts, government agencies at the local, state, and federal levels, and public and private institutions such as schools, corporations, civic, and charitable organizations. Many Democrats are at a loss to watch the Democratic Party double down on “trans inclusion” at the expense of women’s rights, while many Republicans see the Republican Party double down on the quintessential women’s rights issue (abortion) on the one hand while speaking up for women’s rights in areas Republicans have never paid much attention to before now, such as women’s sports.

One specific policy where “gender versus sex” has flipped the political script is how the government is interpreting Title IX, the federal civil rights law that for 50 years has threatened schools, colleges, and universities with loss of federal funds for engaging in sex discrimination. Until recently it was the Democratic Party that reliably used Title IX to press for equal educational access and opportunities for girls and women; the Republican Party largely ignored Title IX, suspicious of being too quick to equate unequal outcomes with illegal discrimination.

From 2017 to early 2020, I worked for Education Secretary Betsy DeVos to preserve the original scope and intent of Title IX. We issued the first regulations ever to formally address campus sexual assault, for instance. We rolled back Obama-era Education Department guidance that had begun requiring schools to substitute “gender identity” for sex, instead relying on the age-old understanding that a law protecting people “on the basis of sex” means, well, based on sex.

But the Biden Administration now interprets Title IX to cover “gender identity discrimination” side by side with sex discrimination. And because a “gender identity” means anyone’s personal, subjective view of themselves as “male, female, both, or neither,” a law cannot protect both gender identity and sex. When a law gives equal footing to a purely subjective characteristic that can “determine” an objective characteristic, it is the objective characteristic that falls by the wayside.

The new genderized interpretation of Title IX has the Democratic Party ignoring the legal existence of girls and women as a category distinct from boys and men, using Title IX to promote “validation” of “gender identities” that factually conflict with any student’s sex classification. This is effectively eliminating girls’-only sports teams, locker rooms, bathrooms, and all other activities provided separately to each sex. In reaction, the Republican Party is suddenly championing Title IX as a crucial vehicle for providing sex-separated spaces and activities needed for girls and women to have genuine equal opportunities.

The Biden Administration proposed new Title IX regulations on June 23, and starting July 12 the public has a 60-day window in which to submit comments or objections to the proposal. (Comments can come from anyone, anywhere, in or out of the U.S., and the more comments the greater the chance of tying up this travesty of a rule in litigation.) But Biden’s Education Department isn’t waiting for new regulations to start pressuring schools, colleges, and universities to “treat students consistently with their gender identity.” I’ve been contacted by numerous parents alarmed by their schools adopting “trans inclusion” and “gender support plan” policies that eliminate female-only activities and “socially transition” students without parents’ consent. When challenged by parents, school administrators shrug and say “Our lawyers tell us this is what Title IX means now.”

What does it mean for every aspect of an educational environment to treat everyone according to their individual gender identity? It means compelling students, teachers, and staff to use every student’s chosen pronouns. It means denying girls and women the privacy and dignity of using the restroom out of the presence of boys and men. It means assigning college freshmen dorm roommates who are of the opposite sex. It means girls and women not making a sports team, or losing out on sports records or scholarships, because boys and men are allowed to compete “as women.” It means school and college health centers jumping onto the “affirmation only” model and providing mental health and even medical interventions like cross-sex hormones, to college students who are barely of age. It means campus groups for women or for lesbians are deemed “discriminatory” unless they include men who identify as women in their events. It means a sexual assault victim on campus has to refer to her rapist as “she” during a Title IX proceeding.

In short, genderizing Title IX means legal chaos at the expense of girls and women. Laws and policies are now operating based on purely subjective self-declarations that overrule objective reality. And the immutable differences between male and female humans mean that inevitably, when everything becomes coed or mixed-sex it is women who suffer more than men from the loss of single-sex spaces.

The Overton Window is a political theory model that explains why politicians support the policies they do. The model predicts that politicians, who care primarily about getting enough votes to stay in power, support policies within a range of what is widely accepted as legitimate (at least within the politician’s own “tribe”). Installing gender identity ideology into law doesn’t poll well among Democrats or Republicans, especially when voters are asked about particular contexts such as male-bodied athletes competing in women’s sports, or male criminals being housed in women’s prisons.

So what explains the Democratic Party overriding its own membership’s mainstream desire to continue legal protections for the female sex? Party leaders are not moving the Overton Window – they are forcing unpopular policies onto an unwilling, albeit somewhat confused and shellshocked, public. In the US, politicians and bureaucrats are under the spell of the magical appeal of an ideology that promises “liberation from oppression” by pretending that everyone’s inner “identity” can create or override material reality.

Gender identity ideology combines three features that appeal to people of good intentions and make politicians feel as though they are moral crusaders on the “right side of history” despite all the palpable negative consequences.

First, genderism presents a set of extraordinary propositions couched in pseudoscience. (You can tell it’s junk science by how it’s presented in cartoonish diagrams like the Gender Unicorn and the Genderbread Person. And how the “facts” it presents are chock full of undefined lingo and circular, contradictory illogic.) “Gender identity theory” tells us that every person has a gender identity, that there is no “sex binary” of male/female but there is a binary of “transgender/cisgender,” and that your “gender identity” tells you if you’re really a “boy, girl, both, or neither” based solely on your own feelings. If your inner gender soul is “congruent” with your “sex assigned at birth” then you are “cisgender,” and if your gender soul is “incongruent” with your sex then you’re “transgender.” Or “nonbinary.” Or one of the hundreds of other invented “gender labels” that emerged out of Tumblr, Tik Tok, and Reddit but are now taken seriously by otherwise serious people. As farcical as it is, gender ideologues have packaged these counter-factual propositions as “science,” allowing government officials and politicians to say that by believing men can become pregnant or that the hulking dude on the swim team is “just like the other girls” they are just “following the science.”

Second, genderism infiltrated governments and institutions by co-opting the vehicle of a “civil rights” movement, specifically the gay rights movement. When Queer Theory activists took over all groups established to press for the rights of gay, lesbian, and bisexual people and force teamed “LGB” with “TQ” (“trans/queer”), gender identity ideology slipped into schools, human resources departments, and government agencies as though “trans” is just Gay 2.0. (For a rundown of that fallacy, see this Genspect article “No, trans is not the ‘new gay.’”) As insulting as it is to think that an ideology denying the fixed reality of sex (which of course makes homosexuality undefinable and unprotectable) has anything in common with the rights or needs of LGB people, the ploy has been successful. Many politicians and government officials believe that by promoting laws that replace sex with “gender identity” they are somehow carrying the progressive banner for gay rights.

Third, genderism inspires believers to seek a spiritual cure for the ills of ordinary human experience, by subscribing to a secularized gnostic dualism. “Born in the wrong body” and “becoming your authentic self” (at the low, low price of a lifetime of reality denial and extreme body modification) entice particularly vulnerable people to view any bodily or social discomfiture as a sign of having a “gender soul” that, when discovered and concretized through social and medical “transition,” represents a beautiful spiritual journey of self-actualization and esoteric wisdom. And because this blatantly spiritual, faith-based doctrine (pushed in a rather cultish manner by true believers) is buried under layers of pseudoscience and imitation civil rights, government officials and politicians reap the emotional benefit of feeling they are enabling the liberation of a “downtrodden minority” group. (There is no minority, and there is no group, of course, since literally anyone and everyone can claim a “gender identity” to take advantage of any of the legal and social privileges granted based on identity. This is reflected in the skyrocketing numbers of youth “identifying as LGBTQ.”)

Gender identity ideology’s historically unique capture of US law (which normally prides itself on rationality and on separation of church and state) is due to this tripartite appeal: no decent person wants to feel they are “denying the science,” nor that they are “anti-civil rights,” nor that they are judgmentally oppressing anyone’s “individual expression of their true self.” This seductive combination is allowing a functional (pseudo)religion to become ensconced in laws like Title IX. And predictably, when a government trades liberal, Enlightenment rationality for dogged pursuit of pop-culture spiritual tenets, it is women, children, and homosexuals who suffer the greatest material harms.

Candice Jackson is an American lawyer and government official. She served as Assistant Secretary of Education for Civil Rights, Deputy Assistant Secretary for Strategic Operations and Outreach in the Office for Civil Rights, and as Deputy General Counsel of the Department of Education. Candice’s observations on “sex versus gender” issues can be followed on Twitter: @cejacksonlaw

Candice Jackson
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