ERLC calls on the Department of Education to reject transgender proposal
By / May 19

Recently, the U.S. Department of Education (ED) proposed a rule change concerning education programs and school activities that receive federal financial assistance.

On April 6, the ED released a proposed rule under Title IX anti-discrimination laws to “clarify” the participation of transgender students in school sports. The proposed rule focuses on sex-related eligibility criteria for male and female athletic teams, specifically advocating for the recognition of gender identity rather than biological sex in determining team eligibility.

ERLC has joined several organizations and scholars in voicing opposition to the proposed rule change, arguing that it undermines the original intent of Title IX, a federal civil rights law that prohibits sex discrimination in education.

Title IX of the Education Amendments of 1972 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.” 

The intention of Title IX was to provide equal opportunities for both men and women seeking to participate in educational institutions and extracurricular activities that receive federal funding.

The law has been instrumental in advancing athletic opportunities for girls and women. As  Hannah Daniel, ERLC’s policy manager, said, “Since the passage of Title IX over 50 years ago, women and girls have been afforded new opportunities for advancement in education and athletics.”

However, this new rule establishes that federally-funded schools may violate Title IX if they categorically ban transgender students from participating on sports teams consistent with their claimed gender identity, but it also offers some vague and narrow circumstances where banning transgender athletes could be acceptable.

The ERLC’s letter

In response to the rule change, ERLC President Brent Leatherwood submitted a letter to the U.S. Department of Education expressing concerns about the proposed rule. Leatherwood argues that the rule violates the original intent of Title IX, which was enacted to provide equal opportunities for women and girls. ERLC believes that the proposed rule, which would require schools and universities to adopt gender identity as the student’s sex for purposes of athletic competition, will undermine the purpose of Title IX. This change will also force women to compete against and share bathroom and changing facilities with biological males.

In the letter, Leatherwood raises concerns the ERLC has about the proposed rule’s impact on the biblical truth of binary sexes and biological realities. He argues that the rule would expand beyond these truths and conflate “sex” with “gender,” a shift that hinders the good and flourishing of our neighbors and discounts the human dignity of their fellow citizens. Leatherwood notes,

A refusal to account for biological, sex-dependent differences will legally enshrine inequality in sports by changing the very law that sought to achieve equality in the first place. If the proposed change is accepted, the law created to protect women from discrimination and provide them equality would discriminate against them and make them more unequal than ever before, as they would now be forced to compete and share facilities with biological males, who have distinct physical differences than females.

ERLC is urging the ED to retract the proposed rule so that the original intent of Title IX—to protect women and girls in athletic endeavors—may be realized. The ED is obligated by federal law to respond to each comment before finalizing the rule.

The proposed rule change has sparked a significant concern about the Biden administration’s efforts to undermine the original intent of Title IX. As the discussion continues, it will be crucial for Christians to pray that such efforts will be thwarted and to lobby ​​the federal government to consider the potential effects on all students and the future of athletics in educational institutions.

Explainer: New Title IX rule expands transgender athlete participation in school sports
By / May 16

On April 6, the Department of Education (ED) released a proposed rule under Title IX anti-discrimination laws to “clarify” the participation of transgender students in school sports. This new rule establishes that federally-funded schools may violate Title IX if they categorically ban transgender students from participating on sports teams consistent with their claimed gender identity, but it also offers some vague and narrow circumstances where banning transgender athletes could be acceptable.

On April 15, the ERLC filed public comments in opposition to the change. ED is obligated to respond to each comment before finalizing the rule.

 What is Title IX?

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination in education, stating: “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.” 

Title IX law is intended to provide equal opportunities for both men and women seeking to participate in educational institutions and extracurricular activities that receive federal funding.

How would this proposed rule change Title IX policies?

The proposed changes from ED would bar schools from implementing categorical bans on the participation of transgender students in sports inconsistent with their biological sex. The rule would force schools to implement policies unfair to athletes competing on teams consistent with their biological sex, placing female athletes at high risk of losing their personal privacy, competitive balance, and scholarship and award opportunities.

The stated intention of this proposed rule is to provide “clarity” for federally-funded schools, coaches, and parents on the participation of transgender students in grade school and high school sports. Under the proposed reinterpretation of Title IX, 

  • “schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.” 
  • Any scholastic efforts to restrict participation based on gender identity must establish criteria “substantially related to the achievement of an important educational objective.” 
  • The criteria must also “minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.” 

Little attention is given to any harms that could be placed onto biological female athletes through less fair and safe competition.

Contrary to ED’s statement, this rule fails to provide clarity on this issue and punishes schools who disapprove of Title IX’s ever-expanding definition of gender identity. To satisfy the department’s new criteria, local school districts may need to disregard policies that require disclosure of gender identity, as well as policies that require transgender students to participate on a sex-specific team matched with their biological sex. 

Why is this problematic?

ED’s proposed change would have sweeping effects that would significantly undermine the original intent and purpose of Title IX. By refusing to account for biological, sex-dependent differences, this regulation would legally enshrine inequality in sports, undermining the very law meant to secure gender equality in the first place.

Not only would this regulation work directly against decades of successful efforts to ensure equal athletic opportunity for men and women, but it would also completely blur the distinctions between men and women and their corresponding team sports. It is clearly unfair and demeaning to female athletes for our nation’s policies to proceed as if biological males are the standard by which they must evaluate their athletic performance.

Additionally, the proposed regulation constructs arbitrary criteria that only considers potential harms to transgender students, wrongly excluding deserving female athletes from the equation. The doctrine of the image of God must compel our leaders to protect dignity, rights, and opportunities for all people, including female athletes. This is not an either-or situation: schools can secure privacy and athletic opportunity for female athletes while still seeking to serve and love transgender students. Sadly, this proposed regulation fails to empower schools to achieve fully inclusive solutions that are right for their local community. 

The new interpretation of rules relevant to transgender athletic participation would penalize academic institutions that choose to protect female athletes. Schools under the jurisdiction of Title IX would no longer be able to define sex as a person’s biological sex from birth, but instead would be forced to adopt gender identity as the student’s sex for purposes of Title IX and its implementing regulations. Though the rule does provide some exceptions and circumstances where it could be deemed acceptable to ban transgender athletes, the exceptions are too vague and subjective to provide real guidance and protections to schools and administrators.

As we argued in our comments:

The exceptions articulated by the Department are as vague as they are hollow. The three factors enumerated are broad and highly subjective, open to vast interpretations from school to school. Yet, the Department’s subsequent commentary about the use of these factors renders the exception virtually useless. Any school or institution seeking to ensure that girls are physically protected as well as have equal access to fair athletic competition enshrined in Title IX, will undoubtedly face criticism and massive litigation costs for any exception they employ. It will be untenable for most schools to protect girls. Additionally, students themselves will be bounced around from team to team as school administrators, forced to comply with these untenable regulations and contend with impending lawsuits, do their best to navigate the subjective murkiness of this guidance.

How has the ERLC responded?

The ERLC has submitted public comments expressing these concerns about the proposed rule and urging ED to retract its policy. The ERLC will continue to monitor these changes and advocate for the recognition of God’s good design for biological sex and the flourishing of all our neighbors.

Explainer: Department of Education weakens protections for religious groups on campus
By / Mar 27

On Feb. 22, 2023, the Department of Education (ED) released a proposed rule related to the free exercise and free speech of faith-based organizations on college campuses. This new rule rescinds two provisions of the 2020 Trump-era “Free Inquiry Rule” which expanded First Amendment freedoms in ED higher education grant programs. 

On Friday, the ERLC filed public comments in opposition to the change. 

What does this rule do?

The proposed changes from ED weakens protections for faith-based groups on campus and limits their ability to fully participate in student life without compromising their religious beliefs.

The stated intention of this proposed rule is “to rescind regulations related to religious student organizations at certain public institutions of higher education (IHEs) that prescribe a novel role for the Department in enforcing grant conditions related to religious student organizations.” ED claims that the regulations are “not necessary to protect the First Amendment right to free speech and free exercise of religion; have created confusion among institutions; and prescribe an unduly burdensome role for the Department to investigate allegations” of discrimination against religious groups on college campuses.

Despite these claims, ED proposes to rescind two provisions from the 2020 final rule that require all public colleges and universities that are federal grant recipients to comply with the First Amendment. The rule, as enacted in 2020, provides clear protections for these groups, guaranteeing that: 

  • they are officially recognized by the school administration as an official organization, 
  • are able to access campus meeting spaces, 
  • and are able to receive student fee funds like all other groups on campus. 

Each of these assurances are critical to a student group’s ability to participate in campus life. 

Without official recognition on campus, a group’s ability to meet on campus, reserve meeting space, and advertise their events can be greatly curtailed. If student groups are denied access to the pool of funds reserved for all student groups, they are unable to host events, advertise their meetings, or participate in other campus activities. 

Why is this problematic?

Religious groups on campus play an important role in forming students and contributing to campus life. Students’ rights to express their faith and live in congruence with their conscience and faith is a fundamental bedrock of American life and does not end when they cross on to campus property. 

Without the clear protections found in the 2020 rule, the rights of students to freely exercise their faith may be eroded by an administration that finds the tenets of a group’s faith as incongruent with the cultural mores of the day. This is especially worrisome for minority groups, whose deeply held religious beliefs may not align with the prevailing beliefs of the secular institution. 

Prior to the enactment of the 2020 rule, there was confusion across the country amongst campus administrations as to how and when to uphold the First Amendment in regards to religious groups. Countless groups were denied access to buildings, funds, and status on the very basis of their religious status. For example: 

  • In 2018, Embry Riddle Aeronautical College denied a religious student group official recognition because of its requirements that its leaders adhere to the tenets of their faith. 
  • In 2006, the University of Georgia administration denied recognition to a religious student group because of its religious leadership and membership requirements. 
  • In 2009, the University of Texas ruled that a religious group would no longer be recognized because it required its members to agree with its religious beliefs. 

And these examples only scratch the surface. The Christian Legal Society has compiled a list of hundreds of similar instances of discrimination and First Amendment violations of religious groups on campus across the country. 

Without this rule in place, it is likely that more student groups will face similar discrimination, preventing them from contributing to their college campuses without compromising their deeply held beliefs.

How has the ERLC responded?

The ERLC has submitted public comments laying out these concerns with the proposed rule and urging these agencies to reconsider making these changes. Faith-based organizations and students should not be placed under special burdens because of their religious tenets and should be able to freely live out their religious beliefs on campus. 

The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the protection of religious liberty and free speech.