Responding to U.S. Department of Education’s 2022 Proposed Amendments to its Title IX Regulations
September 12, 2022
The Department of Education has allowed 60 days for review of 700 pages of new, complex regulation amendments. Our organization is continuing its review, but can offer the following preliminary concern for the Department to consider and address before implementing any of the proposed changes.


1.    INSUFFICIENT COMMENT PERIOD - Except for the largest of institutions, 60 days is insufficient time for most Americans, as individuals or as part of grassroots organizations, to adequately review such a substantial set of proposed changes, assuming they were informed of the proposed changes the day the were announced, which is not the case for most American individuals or groups.
2.    FACT SHEET DOES NOT PROPERLY SUMMARIZE - The Fact sheet provided by the Department only seems to provide the good intentions of the Department and its seemingly laudable goals, with no real information of how rules would actually change and impact Americans directly.
3.    MISUSE OF THE TERM ‘NON-DISCRIMINATION - The proposed regulations appear to confuse non-discrimination based on gender identity with changing the terms of permissible segregation in sports and private changing and bathing facilities.
4.    CHANGING THE MEANING OF WORDS, AND THEREFORE EFFECT OF TITLE IX - Title IX and accompanying regulations, including Title 34 of the Code of Federal Regulation, Section 106.33 (34 CFR § 106.33) have for the last half-century permitted segregation of sports teams and facilities on the basis of sex, which in practice and in accordance with long-standing dictionary definitions and common use meant biological sex.  The new rules, for reasons not explained, change what is meant by ‘sex’ in the original legislation, from an objective definition based on the biology of sex, to a definition not based on sex, but on subjective, personal emotional identification. The Department’s proposed changes would change the terms of permissible segregation/discrimination from the current basis of sex (biology) to segregation/ discrimination on the basis of self-declared identification with words (pronouns such as she or he, nouns such as woman or man) that would no longer convey any discernible or actionable meaning.  Because of the apparent conflating (intentional or not) of non-discrimination based on gender identity with what is actually a change of the terms of discrimination for the purpose of segregation, the Department seems to offer no reason for why the terms of discrimination for the purpose of segregation should be changed, while eliminating any objective way to secure the goals for why Title IX was established in the first place.
5.    THE ELIMINATION OF SAFETY AND IGNORING THE ORIGINAL REASONS FOR SEX-SEGREGATION - The allowable segregation of the two sexes in this context not only follows widely accepted norms of modesty between the sexes that have been prevalent for centuries, and across every human society at some level, this permissible segregation has also been practiced for reasons of safety. This permissible segregation eliminates opportunities for sexual assault or rape, and also the potential for unwanted pregnancies that can result from forcible sexual intercourse between the two sexes.
6.    ELIMINATION OF SPORTS OPPORTUNITIES AND THE ORIGINAL INTENT AND PURPOSE OF TITLE IX - The purpose of segregation by sex under Title IX is the protection of athletic opportunities for the female sex on the basis of the biological differences scientifically documented to exist and prevail between the sexes on the basis of their biology. This segregation has been effected by discrimination (that is, discerning difference) on the basis of sex as described above. Title IX does not permit segregation of team sports or facilities under any other terms or demographic category.  It does not permit segregation/discrimination on the basis of race, religion, ethnic origin, or any of the other protected categories noted under the Civil Rights Act of 1964 under Title II. The Department seems to offer no reason for why the terms of discrimination for the purpose of segregation should be based on an emotional identification with a now-undefined term (no explanation of what constitutes an objective differentiation between the sexes referred to in Title IX, seemingly only except by self-identification with particular nouns and pronouns).
7.    SUBSTANTIAL ELIMINATION OF THE RIGHTS OF THE ACCUSED - The proposed changes may seriously reduce the rights of students at universities accused of misconduct, rights that are otherwise guaranteed by the Constitution.
8.    UNCONSTITUTIONAL SCOPE OF CHANGES – The regulations appear to be an attempt by government to enforce an ideology on how to view and address sex, sexuality, and gender, in violation of the First Amendment. The regulations attempt to actually change and effectively re-write law instead of implementing it by going thru Congress to redefine the intent and purpose of the law, in violation of the separation of powers of the three branches of government.

These are our preliminary concerns. As stated above, we aim to follow with a full report, which we will provide to you and make publicly available.

Marco A. Roberts, Chairman
Texas Conservative Liberty Forum

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