Commentary

DeVos Stands With Female Athletes Forced to Face Transgender Competitors

By Doreen Denny | September 8, 2020 | 12:10pm EDT

The U.S. Department of Education (DOE) has heard the plea of my group, Concerned Women for America (CWA) to stand strong in defense of fairness and equity for female student-athletes by asserting that the Supreme Court decision in Bostock does not overrule biological sex under Title IX! 

On Sept. 1, CWA received a landmark response to a letter sent to Secretary Betsy DeVos urging her “to take proactive measures to ensure consistency, equality, and fair play in every athletics department in every educational institution across the country.”

On June 25, around the 48th Anniversary of Title IX, CWA CEO and President Penny Nance sent a letter thanking Secretary DeVos and the Trump Administration for their support to protect a fair playing field for female student-athletes, including Selina Soule and her teammates in Connecticut who had been forced under state policy to compete in high school track against biological male students identifying as girls.

CWA’s letter to Secretary DeVos also emphasized the need for further decisive action:

“The battle to protect the integrity and fairness of women’s sports is ground zero in the fight for women’s rights. As mothers, daughters, granddaughters, sisters all, we urge you to heed our plea to stand firmly for our rights as women and take bold actions to ensure Title IX is protected at every level of education in our country.”

DOE’s Office for Civil Rights (OCR) responded to CWA with an emphatic determination of policy detailing why the Supreme Court decision in Bostock v. Clayton County, the case that extended transgender status to employment discrimination under Title VII of the Civil Rights Act, cannot be used to deny protection from discrimination based on biological sex under Title IX.

OCR’s letter to CWA unequivocally states DOE’s “commitment to ensuring that Title IX is vigorously enforced at every level of education.” It also provides legal justification for why the Bostock decision does not control ED’s responsibility under Title IX or its regulations, concluding:

“The Supreme Court’s opinion in Bostock does not affect the Department’s position that its Title IX regulations authorize single-sex teams based only on biological sex at birth – male or female – as opposed to a person’s gender identity.”

OCR’s Acting Assistant Secretary, Kimberly Richey, also assures CWA that DOE will continue its work to enforce Title IX and investigate complaints. CWA has filed two civil rights complaints at the college level, against Franklin Pierce University and the University of Montana, for allowing male athletes who changed their gender identity to compete and win national and conference NCAA titles against female athletes:

“The Department’s Office for Civil Rights (OCR) is responsible for enforcing Title IX, and the Department remains committed to the full, fair, and effective enforcement of that statute. Please be assured that OCR will continue to investigate all complaints under Title IX thoroughly, including those related to female athletics.”

In addition to the letter to CWA, OCR issued its interpretation of the Bostock decision in a Revised Letter of Impending Enforcement Action in the complaint against the Connecticut Interscholastic Athletic Conference and member school districts. In its ruling, the DOE asserts its regulatory mandate and enforcement authority to uphold the equal benefits and opportunities required under Title IX on the basis of biological sex.

As court cases continue in Connecticut and Idaho seeking to defend the rights of women and girl student-athletes to compete on an equal playing field against other female athletes, judges should heed DOE’s authority over Title IX and give this official position the deference it deserves.

It is also critical that the government’s official position on Title IX in light of Bostock – which, in addition to athletics, permits separate living facilities, “toilet, locker room, and shower facilities on the basis of sex” – gets in the hands of every state lawmaker, school board, and local school district in America. This is a definitive statement of Title IX policy that all schools and universities receiving federal funds must follow. Please help make that happen by sharing the letter to CWA with these officials today!

Doreen Denny is Vice President of Government Relations for Concerned Women for America, the nation’s largest public policy women’s organization.

Editor's Note: This piece originally appeared on Concerned Women for America.

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