The Biden administration’s move to include gender identity in sex discrimination law may have hit a speed bump. A record number of people have posted public comments on the Department of Education’s (DOE) website, catching many by surprise.
At one point, Americans had submitted close to 350,000 responses to the Department’s re-interpretation of Tile IX, the 1972 law which bans sex discrimination in education.
Candice Jackson, the former acting assistant secretary for civil rights in the Education Department during the Trump administration, says while there’s no official count on which way the comments leaned, it’s telling that so many wanted their voices heard.
“I think what this says is there’s a lot of concern that we’re not pushing Title IX forward to be more protective of girls and women having equal educational opportunities. We’re rolling that back,” she told CBN News.
The re-interpretation move started on President Biden’s first day in office, when he issued a sweeping executive order, calling on all federal agencies to revise existing sex discrimination regulations and policies to include sexual orientation and gender identity.
Education Secretary Miguel Cardona then revised Title IX and posted the changes in June for public comment. The changes would allow any student in any locker room or bathroom, could lead to the end of girls’ and womens’ sports, and force the use of certain pronouns.
The actual number of comments is now in dispute, after the Daily Signal found 160,000 had disappeared. The DOE later cited a “clerical error.” Some, however, like former DOE counsel Sarah Parshall Perry, say that explanation doesn’t pass muster.
“It’s telling we haven’t heard anything from the Department of Education itself on a very significant disparity,” she said on CBN’s Faith Nation program.
By law, the DOE must review all the public comments, a process that could take months.
Once the new rule is published, a variety of legal challenges are expected says Jackson.
“I think there are advocacy organizations that are very concerned about civil liberties like, what this will do to our First Amendment, freedom of speech, free exercise of religion, due process?” said Jackson. “I think groups like that are going to get involved and challenge this in the courts.”
Perry notes that Congress may weigh in as well. “What we’re likely to see, depending on the composition of Capitol Hill in both chambers after the mid-term elections, is potentially a joint resolution to disapprove of the letter,” she said. “Congress has 60 days to issue a resolution essentially removing the law as if it was never proposed in the first place.”
State attorneys general could also sue.
For now, Jackson is advising school boards to hit the pause button on any new gender policies because it could be months and even years before the issue is settled.
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