Over the last year, there has been a great deal of discussion around Title IX and who it should protect. The Biden Administration took efforts to redefine Title IX to include protections for people based on “gender identity,” but these efforts have recently fallen flat thanks to the work of organizations like Alliance Defending Freedom.

This week on Family Policy Matters, host Traci DeVette Griggs welcomes Matt Sharp, Senior Counsel with Alliance Defending Freedom, to discuss the recent Title IX victories and how leaders are standing up to protect women and girls across the country.

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Family Policy Matters
Protecting Women, Girls, and Title IX (with Matt Sharp)

TRACI DEVETTE GRIGGS: Thanks for joining us this week for Family Policy Matters. We have witnessed two major events this past month in the battle to defeat efforts to step back protections for women. The last two Democrat administrations have worked tirelessly to rewrite and redefine Title IX in a way that would have opened up women’s sports and locker rooms to men, but also go much further than that. We are grateful to have with us today ADF Senior Legal Counsel, Matt Sharp. You are a good friend to the North Carolina Family Policy Council, always willing to jump in and provide some background on these very important issues, and especially appreciate you today. Welcome back to Family Policy Matters.

MATT SHARP: Thanks for having me on, I always enjoy it.

TRACI DEVETTE GRIGGS: Alright, so we had two things happen in this past month regarding those efforts to undermine Title IX. Briefly, what are those? And then we’ll jump back in and take a deep dive on both of them.

MATT SHARP: So, the first one is the Biden administration had put forward a couple of new rules redefining sex under Title IX. One of them was focused on the sports context, a proposed rule that would allow and require males that identify as females to be given opportunities and spots on a woman’s team, to get scholarships, etc, that rule was withdrawn. That proposed rule was withdrawn, so the threat of the federal government trying to tell women that men must be allowed in their sports was taken away. The second is a federal court issued a nationwide ruling against the other Title IX rule. This is the one that covered every other aspect of Title IX, such as pronouns, restrooms, locker rooms, so many aspects, parental rights. And a federal judge in Kentucky said that that rule was unlawful, that the Biden administration did not have authority to do it, and essentially vacated the rule nationwide. So, two really big actions on Title IX that are going to make a real difference for every single American.

TRACI DEVETTE GRIGGS: Okay, well, let’s talk first about the one regarding sports, because I think that’s the one that most of us are most familiar with. We’ve heard the most about it. Tell us what happened with that and why?

MATT SHARP: So, for several years, the Biden administration was pushing this effort to insert gender identity into Title IX. It started off with efforts to do guidance documents and other things, and culminated with official rules. So, this is the federal government, the Department of Education, interpreting Title IX, and they did it in two parts. One part was focused on things like restrooms, locker rooms, names, pronouns, how schools interact with a student who says that they identify as a different gender.

The second part was specifically focused on athletics, on a policy that would open the door wide under federal law for boys to take spots away on a girls’ team. And this is something that we know is getting massive backlash nationwide, as we saw states passing laws to protect fairness in women’s sports. We saw so many female athletes, Olympians and others, speaking out against this proposed Title IX sports rule, and really highlighting how it would devastate and destroy women’s sports as we know it for this rule to move forward. Well, I think everyone was saying, is the Biden administration going to try and force this rule through and finalize it in the last days of the administration? And what they decided to do was actually to reverse course. They withdrew the proposed rule, meaning that now this looming threat of the federal government telling every single state, every single school, every single college that receives federal funding, that you must open the door for men to be on girls’ teams, to take those scholarships, to take those important athletic opportunities away, that threat of the federal government forcing that on schools and colleges has now been removed and withdrawn from consideration. So that is a huge victory, and in my mind, it shows the power of people speaking up. When they proposed this rule, there was thousands and thousands and thousands of comments that were submitted, so many from just average citizens, organizations, and others saying this is a bad rule. Do not move forward with it. And so, to see the Biden administration withdraw it is a testament to the concerted national effort from policy groups, from women athletes, from parents and others speaking out and saying, Don’t do this to our daughters. Preserve fairness on the playing field for them.

TRACI DEVETTE GRIGGS: But is the Biden administration conceding here? Are they conceding this point, or are they conceding until later?

MATT SHARP: Exactly. It’s the latter. So, one of the interesting parts of federal law is there’s this thing called the Congressional Review Act. And what it means is that in the final days of an administration, if a outgoing administration, a lame duck administration, tries to force through a bunch of rules at the last minute, rules that are not popular, that are not well thought out, that may violate the law, Congress can actually revoke all of those rules and bar any future consideration of that rule again.

So, if the Biden administration had pushed forward with this, if they had finalized and issued this Title IX sports rule saying men can participate in women’s sports, in the final days of the administration, our new Congress, that Republicans now, you know, control both houses, could have used the Congressional Review Act to say, No, we don’t like that rule. We’re going to revoke it. And it would prevent any future administration, so if a future Democrat administration or other tried to push this, they would be forever barred from doing it. So there definitely was a political calculus, and maybe them thinking four years down the road, eight years down the road, we can try and do this again. But I think the American public has spoken so definitively about this, that we do not want men in women’s sports, that I think it really set them back on their heels. So, this is not to say that the battle is forever done in terms of there potentially being a federal rule requiring men in women’s sports. It’s a battle we may have to fight another day, so we have to keep that vigilance up. But I think we ought to pause and celebrate this moment, because it was only through, again, the national outcry about men in women’s sports, that this victory was accomplished.

TRACI DEVETTE GRIGGS: Right. And of course, you guys played such a huge role in that, taking up the cause, these individual causes, and pushing them forward. So thank you very much for your good work on that. So, let’s talk about the court ruling, now. Give us some history on that and what was happening even up to last week, and what did the court ultimately rule?

MATT SHARP: So, as I mentioned, we’ve really got sort of two Title IX rules, the sports one that’s withdrawn, that one is gone, but there was this other, broader one that generally said, in any school or college, you can’t discriminate against students because of their gender identity. That’s nowhere in federal law. Title IX doesn’t talk about gender identity. It is focused on sex-based discrimination. When Title IX was passed in the 1970s, the concern was women being denied equal opportunities. They were told they couldn’t pursue certain majors. They were told that they didn’t have the same athletic opportunities, they didn’t have the same access to financial aid and other things. And so, this was meant to ensure that women get equal access.

Well, what the Obama administration started doing, and the Biden administration continued, was trying to redefine sex to include gender identity. And so, in this first rule that passed, that’s exactly what they did. They said, if a school receives federal funds, if a college receives federal funds, you have to treat a student consistent with their gender identity. That means you have to call a male by female pronouns, you have to allow that male to go into a girl’s locker room, to sleep in a girl’s room on an overnight trip. In fact, we had that happen to one of our clients in Colorado, that a middle school girl was told that she would have to share a bed with a biological male on an overnight school field trip. We’ve also seen how this rule tells schools that they have to hide information from parents. So, if you have a child that is maybe asking questions about their gender or wanting to identify as a different gender, rather than calling the parents, this rule was telling schools that you have to hide that information from parents.

So, this rule went into effect, and it was really starting to have consequences nationwide. So in response to this rule, Alliance Defending Freedom filed five different lawsuits on behalf of school districts, on behalf of female athletes, on behalf of teachers that were concerned about having to lie to parents or use inaccurate pronouns, challenging this rule in multiple states, in multiple courts, arguing that it’s inconsistent with Title IX, that the Biden administration can’t rewrite federal law, insert gender identity into a law that it was never contemplated for this idea to be brought in and really just arguing that it violates free speech, students, privacy, and all of these other rights. So just last week, we had a exciting victory in these challenges. We’ve had several victories along the way. In fact, both lower courts and appellate courts had pretty consistently given injunctions. They had said, Okay, for the states that are involved in these lawsuits, for the female athletes and teachers that are involved in these lawsuits, we’re going to give you an injunction, a court order saying that Biden administration can’t enforce this against you. Those were great victories, but they only applied to those states or those parties.

So, for example, North Carolina, unfortunately, was not part of one of these lawsuits. So those injunctions, those court rulings that we had, did not protect families in North Carolina from their daughters being forced to share a restroom or locker room with a guy, or teachers being told they have to use inaccurate pronouns. But recently, a federal court in Kentucky, where one of these cases was moving forward, a case that was being led by the state of Tennessee and Alliance Defending Freedom representing female athlete and teachers’ group. The court not only ruled that the Title IX rule was unlawful, but said we are vacating this rule nationwide. In other words, what the court did was wipe this bad Title IX rule. This Title IX rule that violates privacy, parental rights, free speech, essentially wipe it from the books so that no matter where you live in the country, no federal government official can enforce this unlawful Title IX rule against a school, a teacher, or anyone else. So, we have now had a federal court ruling wiping this bad law off the books and giving relief to every single person nationwide that they do not have to worry about the federal government violating their right to privacy, their right to free speech or parental rights through this Title IX rule.

TRACI DEVETTE GRIGGS: What about under the Trump administration? What are expectations?

MATT SHARP: Well, I think there’s a lot of work for the Trump administration to build upon this success. Number one is yes, the Federal Court vacated this Title IX rule, but we need to have the federal government officially withdraw it and replace it with something better. Rather than trying to insert gender identity into Title IX. We need to reinforce and reaffirm that Title IX protects fairness in women’s sports. That Title IX protects privacy, that Title IX protects free speech. We need to reaffirm those original principles. So, I think there’s some opportunity for the Trump administration to do some really good rule making, to reaffirm those values and those arguments that we’ve been making in this case.

Number two, I think there’s an opportunity for the Trump administration to reverse the position and help dismiss a lot of these lawsuits that Alliance Defending Freedom and others were having to bring to challenge the bad Title IX rule. Again, those other lawsuits are still ongoing, and we hope that federal courts will all reach the same ruling that this Title IX rule was unlawful. We want the Trump administration on our side, help us get a strong ruling again and again and again that you can’t rewrite Title IX and ultimately, help us to put these cases to rest with strong rulings. And the final thing is, we would love to see federal legislation, an amendment to Title IX to reaffirm that no thing in this rule can ever be used to require a man to go into a girl’s locker room, restroom, take away an opportunity from a young woman, and in fact, that it violates women’s rights to allow a man to take away those opportunities and to go into a women’s restroom or locker room. Because as great as these rulings are, we still have state level battles. So as things stand now, we’ve got a victory against the federal policy. What we need now is federal protection so that states can’t try and pass these policies, or local school districts can’t pass these policies undermining women’s opportunity, because we got to make sure that, again, no matter where she is, the threat from local, state government, local officials is also removed as well, so that everywhere in the country, a girl has a guaranteed right to a fair and level playing field and to have her privacy and safety protected in intimate spaces.

TRACI DEVETTE GRIGGS: Talk a little bit about what people should do then. So, you already mentioned how important it was, the grassroots effort, these people from all over the country who are like, this is crazy, and speaking up and what power that had. So, if somebody hears this and they’re like, Okay, well, I want to ensure that this same kind of thing happens on my local level. I want to make sure that there are protections in place. What are the steps they need to take?

MATT SHARP: They need to get involved in political process. Get involved in your local school boards. Know what the policies that your school district is passing. Are there policies that maybe do undermine parental rights, that tell teachers that they have to hide information from parents if a child is dealing with gender confusion? Are there other policies that undermine opportunities for women? But then take that up. Get involved in state legislation, and even at the federal level, there are going to be opportunities, even at the federal level, for citizens to weigh in on maybe proposed rules that the Trump administration does to strengthen protections for women’s opportunity. A single person can hop on the federal government website and say, this rule matters to me, it matters to my daughters, and those add up. That’s going to help continue to get these laws to pass that can make a difference, not just for people in North Carolina. So, get involved from the state to the local level, and yes, even at the national level.

TRACI DEVETTE GRIGGS: Okay, Matt Sharp with ADF, give us a little bit of information about how people can access the resources that you all provide.

MATT SHARP: Sure. They can visit us online at ADFLegal.org That’s ADFLegal.org. They can learn more about this great victory we had at the federal court vacating that Title IX rule. They can learn about the other lawsuits, what’s going on across the country. So again, that’s ADFLegal.org

TRACI DEVETTE GRIGGS: All right, ADF Senior Legal Counsel, Matt Sharp, thank you so much for being with us today on Family Policy Matters.

MATT SHARP: Thanks for having me.

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