“Strategic Ambiguity”: The Biden Administration’s Withdrawal of the Sports-Specific Title IX Rule Change

Major win for female-only sports or hollow victory?

December 21, 2024

Yesterday, the news dropped that the U.S. Department of Education has withdrawn a proposed rule from April 2023 that would elevate “gender identity” over sex under certain circumstances in school sports. The proposed rule, titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams,” can be read in its entirety here.

The bottom line is that the April 2023 proposed rule would require schools that want to maintain single-sex sports to show that their efforts to do so: (1) “are substantially related to the achievement of an important educational objective,” and (2) “minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

In my view, maintaining single-sex sports is always related to the achievement of an important educational objective: advancing the rights of women and girls in education (which some might argue is the very purpose of Title IX). As for (2), I don’t think I will ever understand why the United States government thinks it’s important to protect anyone’s made-up “gender identity” under federal law in a manner that obliterates the sex-based rights of women and girls, but that’s a question for another day.

For now, it’s enough to note that this proposed rule has now been withdrawn, which is undeniably a good thing for anyone who cares about women and girls. It’s also good in that it shows that the Biden Administration understands that Americans overwhelmingly support single-sex sports.

Many people understandably got very excited about this news. It appeared that the Biden Administration had finally gotten the message that the American people care about single-sex sports and was prepared to drop its efforts to muck everything up with a bunch of “gender identity” nonsense.

I’m not so sure.

The first I heard of this development was this X post by journalist Benjamin Ryan:

This was my cautious response, to the effect that it might be a hollow victory because of a different set of rules that the Department had proposed in June 2022 and finalized in April 2024, which redefine sex to include “gender identity” for all Title IX purposes, without exempting sports (Women’s Declaration International USA issued a statement about that rule change in April):

Leor Sapir then pointed me to a section of a Department publication suggesting that perhaps sports had been exempted from the June 2022 proposed rule:

But then I found a different description of the same provision of the June 2022 proposed rule in a separate Department publication, suggesting that sports had not been exempted:

And noted that the actual regulations were updated in April 2024 (when the June 2022 proposed rule was finalized) to state: "Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person's gender identity subjects a person to more than de minimis harm on the basis of sex." That would suggest that the redefinition of sex to include “gender identity” is total, and does not exempt sports.

Leor then called this an example of strategic ambiguity, and I agree.

The Department is deliberately obscuring its actual intention in order to confuse everyone (including, most likely, the U.S. judiciary).

So, inquiring minds want to know: is the decision to withdraw the April 2023 sports-specific proposed rule a win for single-sex sports? Or is it a hollow victory because the June 2022 rule, finalized in April 2024, already redefined sex to include “gender identity” for all Title IX purposes, without exempting sports, anyway?

Unfortunately, I continue to think this is a hollow victory, at least for now. That could change, depending on the outcome of two cases: Cardona v. Tennessee and Department of Education v. Louisiana. Read on to find out why.

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