Biden admin insists Title IX update won't allow biological men in women's sports. Experts say that's not true

The Department of Education has said its contentious update to Title IX won't implicate sports or allow transgender women to compete against biological females, but experts argue the current rule already does that.

The Title IX update, which will be implemented nationwide in August if it can overcome legal challenges, keeps the long-standing athletics regulation that allows sex-separate teams. But its 1,500 pages include 31 references to athletics and prohibits gender identity discrimination in any extracurricular activity.

"It's hard to redefine the word ‘sex’ and not have it apply to the entire statute," Alliance Defending Freedom (ADF) legal counsel Rachel Rouleau told Fox News Digital. "You really can't say that sex includes gender identity in part of Title IX, but not in sports." 

Her organization is fighting the Title IX update in several cases and has already scored some major victories.

The latest version of the regulation, which expands the definition of sex discrimination and harassment to include gender identity and sexual orientation, will have significant implications for women-only spaces, conservative legal scholars previously told Fox News Digital. The Biden administration's claim that sports won't be affected is deceptive, some experts argue, since adding gender identity to Title IX could make schools feel coerced — even if they aren't required — into allowing students to participate in sports teams that correspond with their preferred gender.

And it's an expensive gamble for schools — institutions that fail to comply with Title IX risk losing federal funding, which is often a significant amount for colleges and universities.

Demonstrators cheer during the speaking program at the "Our Bodies, Our Sports" rally for the 50th anniversary of Title IX at Freedom Plaza on June 23, 2022, in Washington, D.C.  (Anna Moneymaker/Getty Images)

"The administration's just created a rule that falls under its own weight when two individuals — a biological female and … one who believes they are a biological female — file simultaneous Title IX complaints," Heritage Foundation senior legal fellow Sarah Parshall Perry told Fox News Digital. "The federal government has said it's the trans-identified male that's going to win, so it's actually working a discriminatory purpose and that, I think, is the biggest outcome from this rule."

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A former teammate of transgender University of Pennsylvania swimmer Lia Thomas, Independent Women’s Forum Ambassador Paula Scanlan, told Fox News Digital the Title IX changes would ultimately put biological men first, hindering women's rights. 

"People are taking advantage of the system, and they will continue to do that until we push back and put policies in to fix these things," Scanlan said. "The new Title IX rewrite is a great example of pushing back against women's rights."

But organizations like the Women's Sports Foundation believe schools should be obligated to accommodate transgender athletes under the Equal Protection Clause of the U.S. Constitution and Title IX’s prohibitions against sex discrimination, which "have both been interpreted by state and federal courts to encompass discrimination based on gender stereotyping, including discrimination against individuals because of their gender identity or expression (i.e. transgender athletes)."

"Therefore, schools may face legal liability if they deny access to such student-athletes, even if no law explicitly addresses the issue," the organization said. 

When reached for comment, a spokesperson at the Education Department told Fox News Digital that the "rulemaking process is still ongoing for a Title IX regulation related to athletics."

"The Department proposed amendments to its athletics regulations in April 2023 and received over 150,000 public comments, which by law must be carefully considered," the statement said. "We do not have information to share today on a timeline."

‘Someone has to stand up'

West Virginia passed the Save Women Sports Act in 2021, prohibiting transgender girls from competing against biological girls in sports. In response, a 13-year-old transgender middle school student in West Virginia, known as BPJ, successfully obtained a federal court injunction to compete in female sports. 

Lia Thomas, a transgender swimmer for the University of Pennsylvania, caused a major division in whether trans women should be allowed to compete against biological females. (Mike Comer/NCAA Photos via Getty Images)

On June 17, a federal judge sided with Tennessee and five other states, blocking the Biden administration from implementing the rule, while another, days earlier, made a similar ruling in four additional states. More than 20 GOP-led states are trying to block the Title IX update.

BPJ "was allowed to compete with women and girls, and we see the results of that," Rouleau said, alleging that the athlete sexually harassed a teammate, Adaleia Cross. "So we've seen the impact of allowing men and women's teams."

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"We wanted to avoid the sexual harassment of girls in the locker room, avoid women being displaced on their own teams and unfortunately, during the litigation, West Virginia's role was stayed just in terms of that one athlete," Rouleau said.

The Department of Justice submitted an amicus brief in BPJ's case arguing that laws that "categorically exclude transgender students from participating consistent with their gender identity" are too narrow and could prevent equal opportunity.

"Accordingly, such bans are simply too broad to conform to Title IX’s fundamental antidiscrimination mandate," it stated.

A federal appeals court sided with BPJ, echoing the DOJ's rationale in its opinion and ruling that separating sports by biological sex is a form of discrimination under Title IX.

"B.P.J. has shown applying the Act to her would violate Title IX, and the district court erred in denying her motion for summary judgment," Judge Joseph R. Goodwin wrote.

As a result, ADF is representing Adaleia Cross' parents on behalf of their daughter as part of a Tennessee lawsuit against Education Secretary Miguel Cardona, alleging that the Biden administration's Title IX update amounts to an illegal rewrite. According to one ADF filing, BPJ displaced biological girls in sports events over 700 times from 2021 to 2024.

Adaleia Cross alleged that BPJ, who used the female locker room, sexually harassed her, repeatedly beat her in track and field, before finally getting edged out of competing in throwing events. Her parents, Abigail and Holden Cross, believe the most recent Title IX rule will exacerbate their daughter's experience on a nationwide level. 

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"Not only was it terrible what happened with Adaleia — that's our daughter, we want to protect her — but we know that since we've spoken out about it, we've had other girls, other moms in the area come to us," Abigail Cross said. "Many are afraid to speak out, many have told us they're experiencing similar things that our daughter has experienced."

"Someone has to stand up and try to protect these girls, because a lot of institutions and the school seem to be dropping the ball," she added. "To tell the truth about what's happening to them, that's why we're doing it."

Education Secretary Miguel Cardona was hit with a lawsuit after the Biden administration issued a rule update to Title IX. (Tierney L. Cross/Bloomberg via Getty Images)

Holden Cross said, as a parent, he wants girls nationwide to have access to fair competition and safe spaces for themselves. 

"Title IX hasn't been around that long, girls haven't had their own sports for that long in the grand scheme of things, and now they're already on the decline potentially if this continues to happen," he said. "We really want to just do the right thing here, to try and protect women's sports, protect them in their locker rooms, places where they're vulnerable, that's important to us, and we feel like it's the right thing to do."

'Battle royale'

There are 24 states that have laws that keep women's sports exclusive to biological females, but legal experts say the Biden administration's Title IX update, if successfully implemented, would overrule those laws. 

Perry said the changes will set up a "battle royale" over competing claims. Providing transgender athletes with the opportunity to compete on women's teams actually discriminates against biological females, she said.

In the BPJ case, the DOJ also filed a statement of interest that said a "state law that limits or denies a particular class of people's ability to participate in public, federally funded educational programs and activities solely because their gender identity does not match their sex assigned at birth violates both Title IX and the Equal Protection Clause."

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House GOP members and female athletes mark the passage of the Protection Of Women And Girls In Sports Act.  (Chip Somodevilla)

"Therefore, any interpretation of Title IX's regulations that requires gender identity discrimination would violate the statute's nondiscrimination mandate," the DOJ wrote. "A discriminatory state law is no defense to a Title IX violation."

Additionally, the Biden administration said it would eventually create a separate rule surrounding sports. But Perry said that might not even be necessary.

"For all intents and purposes, they've done everything but come out and admit sports are included," Perry said. "I would not be surprised if they had shelved a separate athletic role entirely, because there's no need to go forward if you've actually included, both de facto and de jure the inclusion of athletics within your massive regulation." 

‘If we had to compete against men, we would lose’

Scanlan, the UPenn graduate, said her experience competing against a trans swimmer opened her eyes to policies she believes can really hurt female athletes. While she was in college, the NCAA announced biological males could qualify for women's teams if they suppressed their testosterone for a single year.

"We saw very quickly that it is incredibly unfair for someone, even suppressing their testosterone for one year, to compete against women," she said. "That was very evident when Lia went on and won an NCAA championship in the 500 yard freestyle. Keep in mind, when he was on the men's team, he never even qualified for the NCAA championship meet at all."

"Every single time that Thomas competed on behalf of Penn, somebody was asked to stay home," Scanlan added. "Swimming is a limited roster sport, there's only a certain number of spots, and every time he competed, a girl was asked to stay home."

She reflected on the original purpose of Title IX, which gave women and girls opportunities they didn't previously have. 

"It's not harmful and bigoted to say that women deserve to have athletic opportunities that are separate from men," Scanlan said. "It's not bigoted to say that if we had to compete against men, we would lose."

Scanlan said a generation of women and girls are going to "lose out" if the Title IX changes are pushed through. 

Lia Thomas was thrust into the national spotlight when the trans swimmer won the 500-yard freestyle preliminaries and finals at the Zippy Invitational.  (Penn Athletics)

"There are millions of other young girls that have their own experiences about how sports helped shape them to be who they are," she said. "If we're denying them that opportunity, I think it's a great injustice in this country."

"It really breaks my heart when I see these young girls, especially now at the high school and middle school level, that are being forced to compete against men," Scanlan added.

‘A head fake game' 

Defense of Freedom Institute Co-founder and President Bob Eitel called the Biden administration's move — and withholding a specific rule on sports — a "head fake game that arises from a presidential election year." The Defense of Freedom Institute was involved in the federal case that blocked the Title IX implementation in four states.

"I think that the administration is holding that back simply because of election year politics," Eitel said. "They know that the sports issue in this area is absolutely toxic for them."

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"It is an extremely unpopular position for the administration to hold," he added.

Eitel said the original premise of Title IX, which was implemented as a way to protect women and girls, is facing complete dissolution under the policy change.

"Gender identity has never been covered by Title IX until now," he said. "It's a relatively recent construct that was not even on the radar screen for any policymaker in 1972 when Title IX was passed."

"Title IX as a statute and as it was implemented by the department for decades, considered sex-separated spaces as part of the statutory and regulatory fabric of the law," Eitel continued. "When you read the way the administration drafted the proposed rule, it clearly would allow for persons to participate in athletics based on their gender identity, whatever the impact on women's sports."

Tennis legend Billie Jean King (R) and high school track athlete Maya Mosley (L) listen to US First Lady Jill Biden speak during an event to mark the 50th anniversary of Title IX at Capitol One Arena in Washington, DC, on June 22, 2022.  (Getty Images)

Independent Women’s Law Center Director May Mailman, agreed, arguing that the administration's insistence that the new rule doesn't implicate sports is "a total lie" that has been pushed for political reasons. 

"They know that what they're doing is very unpopular, and yet they know what they have to do in order to appease the farthest left of their base, which is thematic for the Biden administration," she said.

"Of course you can say no women in the men's dorm and no men in the women's dorm," Mailman continued. "Of course you can say separate sex teams." 

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Now, because sex discrimination includes gender identity, she said this is going to set up a "huge conflict" between women and transgender-identifying individuals. 

"You can no longer pursue the goals of Title IX because they are at odds with identity-based rights," she said.