The Legal Fight to Protect Title IX (with Matt Sharp)

Welcome to Family Policy Matters, a weekly podcast and radio show produced by the North Carolina Family Policy Council. Hi, I'm John Rustin, President of NC Family, and each week on Family Policy Matters, we welcome experts and policy leaders to discuss topics that impact faith and family here in North Carolina. Our prayer is that this program will help encourage and equip you to be a voice of persuasion for family values in your community, state, and nation. And now, here's the host of Family Policy Matters, Tracey Devette Griggs. Thanks for joining us this week for Family Policy Matters. The federal law put into place to protect female athletes is now being gutted in a distorted notion of equality.

Astoundingly, on April 19th, the Biden administration announced that it is redefining the term sex in Title IX rules to include, quote, an individual's sense of their gender. Our friends over at Alliance Defending Freedom have filed five lawsuits challenging this rule. And joining us today to walk through the current status of these cases is Matt Sharp, Senior Legal Counsel with Alliance Defending Freedom, where he directs the Center for Legislative Advocacy. Matt Sharp, welcome back to Family Policy Matters. Thank you for having me.

All right. So for some people who possibly, I'm not sure how, but if they could possibly not understand what Title IX is, could you give us a quick idea of what that is and also what this rule change would mean? So Title IX is an incredible federal law. It's been around for about 50 years and was originally intended to solve the problem of women being denied equal opportunities, specifically in higher education. They were being denied the ability to enroll in certain schools or programs, pursue certain degrees, and they were being denied the ability to play sports or other things that men were allowed to do. And so Congress stepped in to say, we want every federally funded educational institution to give women equal opportunities in all of these areas.

And so it's opened the door for so many more women to go pursue a degree and even to participate in sports. But what the Biden administration is doing is rewriting what Title IX means rather than it meaning a law that protects equal opportunities for sex. They're trying to erase sex and make it about gender identity so that now any federally funded school program institution has to treat a man like a woman and allow a man to compete on women's teams, to stay in women's dorms, enter women's locker rooms, restrooms. So many other things that are going to undermine the very protections that Title IX was originally designed to provide.

All right. So the idea of this is not new, but is this strategy new? Yeah, this has been something that we saw the Obama administration really start pushing in 2015 and 2016, where they issued this dear colleague letter telling schools and colleges they would have to start treating students consistent with their gender identity or else. And now this final rule makes that letter into the law of the land, and it's going to impact thousands and thousands of schools, colleges, students and institutions across the country.

So tell me who wants this? I would think especially right now, everything is politics. So why is this advantageous for the Biden administration to make such an issue of? Well, this is part of a radical gender ideology that's being pushed everywhere through the federal government at the local level. And it's these individuals that have captured Biden administration and are using it to push this agenda. And so they're pushing rule after rule, doing it through Title IX, doing it in other areas of federal law, requiring anyone to sort of bow down to this ideology or else. I think most of us look at it and go, this is just ridiculous. But apparently there is some means of justifying this legally.

How are they doing that? They're making a lot of it on this Supreme Court decision from a few years ago called Bostock. This was a case dealing with specifically the question of, is it discrimination based on sex if you fire somebody because of their sexual orientation or gender identity? Now, the Supreme Court got it wrong and they said, yes, if you are terminating someone, a man that dresses like a woman, that's a form of sex discrimination. But the court was very clear that only applied in the employment context and only for these sort of unequal treatment where you're denying somebody a job or opportunity. What the Biden administration has done is to take that very narrow Supreme Court ruling and try and expand it and say, well, everywhere in federal law that it references sex, we're now going to interpret it to mean gender identity and gender ideology. But it completely ignores that the Supreme Court was very clear in Bostock that it only applied in the employment context, did not implicate restrooms, locker rooms or all of these other things.

But the Biden administration is building this entire Title nine rule on that very weak foundation, but it's continuing to push it every chance they get. OK, so you guys have filed numerous lawsuits. Let's start with the most recent case, Carroll Independent School District versus the U.S. Department of Education.

What is going on with that case? This is a lawsuit we filed on behalf of a school district in Texas. This is a school that wants to protect its students' privacy and safety.

It wants to preserve fairness in women's sports. And it's being told by the Biden administration that if you don't comply with this Title nine rule, you're at risk of losing tens of thousands, if not hundreds of thousands of dollars in federal funding and other consequences. So Carroll School District is taking a stand and saying you cannot force us to violate the clear meaning of Title nine.

You cannot force us to violate our students' rights to privacy, safety and free speech. And so it is taking a stand on behalf of the students and families there at the Carroll School District in Texas. So ADF is also involved in four other cases challenging this Title nine rule.

Could you walk us through those as well? Yeah, very similar circumstances. We've got some that it's other school districts. We've got students that are filing some of these lawsuits where we're representing female athletes that don't want to be forced to lose an opportunity to a man or students worried about their privacy and safety. We're even filing one on behalf of a group of teachers that are concerned about how this Title nine rule could require them to use inaccurate names or pronouns in the classroom.

But all of these are all over the country and Kansas, Arkansas, Louisiana. They're all about this core challenge to this Title nine rule that is implying nationwide and making sure that no matter where someone lives, that they are not forced to violate their beliefs, that they're not forced to have their privacy undermined by this unlawful Title nine rule. Has this rule taken effect when we expect it to take effect? So the rule is going to take effect on August 1st. So that's one of the reasons we've had all of these lawsuits filed, because no school wants to be at risk of losing their funding. No young woman wants to be at risk of losing that opportunity on the sports team because of this rule. And that's what's had the urgency of all of these states and others like ADF filing these lawsuits to stop this rule from going into effect on August 1st.

And do you think that you'll be successful, at least in putting it off? We definitely hope so. And in fact, of the five cases that Alliance Defending Freedom has filed, we've already had great court rulings in three of those where the courts have issued an injunction against the federal government telling them you cannot enforce this Title nine rule against the parties in those cases. And so that means not only the school districts that we're representing, for example, in Louisiana, not only is it protected, but the state of Louisiana itself, along with several other states that join that lawsuit, are now protected against the consequences of this Title nine rule. We're hopeful we're going to see more and more courts over the next weeks and months follow suit and ultimately put a stop to this Title nine rule. Any other real world examples of things that we might see if this rule were to go into effect?

Yeah. Let me give an example from Colorado. We had a family there that their daughter was going on a school field trip and found out that she was going to be forced to share a bed with a boy on the school field trip. If this Title nine rule took effect, that would be the case nationwide, not just in Colorado, but any time a family sends their child on a school field trip, they would have to worry, is my daughter going to be forced to share a bed on a school field trip in a hotel room with a male?

We have other cases like Liam Morrison. This is a student in Massachusetts that as his school was pushing gender ideology, he wanted to speak against it. So he showed up at school wearing a shirt that just said there are two genders, a very simple statement of his beliefs and opinion on the matter.

And as a result, he was punished. He was told the school he could not wear that and express his views because it created a hostile environment for students that identify as transgender. That's censoring speech. But that's what we can expect more of if this Title nine rule goes into effect, that it's going to impact privacy.

It's going to impact safety and it's even going to impact free speech at schools and colleges. What about these cases? Are there more coming? What are your expectations on the outcomes? There's definitely more and more of these cases in the pipeline and that are being filed.

But what we're hopeful to see is what we've already seen in those three court victories that we're going to see the court stepping in and saying Biden administration. You can't rewrite Title nine. You can't take this 50 year old law that everyone knows what it means, that it was designed to protect opportunities for women, to guarantee equal opportunities. You can't rewrite it to push your agenda. You can't rewrite it to erase sex and replace it with gender identity. And you can't rewrite it in a way that undermines the very opportunities for women and for countless others that Title nine was originally designed to protect. That's what these courts are ruling so far.

And we're hopeful we're going to see more and more of those. But ultimately, we're hopeful the Supreme Court is going to take up this issue, because although we're getting victories in places like Louisiana and Kansas and others, we know that this is impacting students in California and Massachusetts and states that maybe they're not taking a stand. So we're hopeful the Supreme Court will ultimately take up one of these cases and issue a very clear ruling that the Biden administration cannot rewrite Title nine and cannot enforce this rule anywhere in the country against any school district, against any student, against any family, and ultimately vindicate their rights to privacy and free speech.

Talk a little bit more about that. What happens with these state laws? How do they interplay with federal laws?

This seems like a bit of a mess at this point. Yeah, I think North Carolina provides a great example. You guys have passed some really groundbreaking laws protecting students, protecting fairness on the playing field for young women. Well, if this rule is allowed to take effect, this Title nine rule, it means states like North Carolina that have passed women's sports laws would now not be able to protect young women in North Carolina when they walk onto the playing field.

It means that these laws would be essentially rendered void by the federal government trying to rewrite Title nine through this unlawful rule. And that's something that now 24 states have passed laws like that protecting fairness in women's sports. Many others have passed laws protecting the rights to free speech of students, teachers, college professors and others. And all of those state laws are now at risk if this Title nine rule goes into effect. So that's why state after state is standing up against this to say we pass these laws.

They reflect the will of our citizens and Biden administration. You don't have the right to use this federal regulation to undermine our laws that are designed to protect students, teachers and others in our state. OK, so let's talk about parents then. North Carolina passed a strong parental rights law last year. Could the Title nine rule undermine that law?

Yeah. One of the real kind of hidden concerns is the impact this rule could have on parental rights. Specifically, we're hearing more and more stories of schools doing these secret social transitions. This is where a school is coming along, a student that maybe has some questions about their gender, maybe experiencing some confusion and saying, well, maybe it's because you were born in the wrong body.

Well, under this Title nine rule, there's a way it could be interpreted. They could say, schools, you need to be hiding this information from parents. You need to be deceiving parents about a child's struggle with gender identity because otherwise you may be creating a hostile environment for that student.

That's simply false. There is no one that loves a child better than their parents. There's no one that's going to do a better job helping a child navigate confusion about their gender. And that's why North Carolina passed this law to make sure that parents are in the driver's seat over these important decisions. But if this Title nine rule goes into effect, we could see the federal government, the Department of Education, start telling states like North Carolina and schools across the state that you must lie to parents and hide information from parents about a child's struggle with their gender identity. But that undermines parental rights and it's something we want to make sure doesn't happen because we are seeing story after story that states are doing this and the damage it can have on a young child when school officials are pushing this radical gender ideology.

So that's why we've got to put a stop to this Title nine rule and to make sure that states like North Carolina can continue to be a place where parental rights are protected and families are nourished. So are you amazed that we're still talking about this? I am, but it just goes to show the extent to which the proponents of gender ideology are unceasing or unwavering.

You know, when this first popped up in 2016, there's a lot of people shocked and said, oh, is this really that big a deal? Is it really that happening that, you know, gender ideology is being pushed and women are losing opportunities in sports or having their privacy violated? And it is happening, but it's only because more and more people have been speaking out that we're starting to see the tide turn. We're starting to see all of these states pass strong women's sports laws, parental rights laws and other things. And starting to see all of these states and groups stand up against Title nine being rewritten by the Biden administration. So I'm encouraged.

I think what we're seeing is not just legal victories, but we're seeing cultural victories as more and more people are saying enough is enough. We obviously want to show kindness and compassion to people dealing with gender confusion. But at the end of the day, we are created male and female. Those differences matter.

And we should not rewrite federal law to ignore the important differences between men and women and why those differences matter in so many areas of life. All right. So glad to have you on that side arguing those points. Thank you.

We're just about out of time for this week before we go. Where can our listeners go if we want to follow these cases and all the good work that you all are doing over there at ADF? Well, they can visit us online at ADF legal dot org, where they can learn more about our cases, learn how to support the work that we're doing.

And if they are dealing with a situation, maybe they're finding themselves where their child is being socially transitioned or their rights are being violated. They can reach out to us and we're happy to help. And one of the things we love is being able to partner with groups like North Carolina Family Policy Council to get great laws passed. And we're happy to stand with you guys and partner with you guys. All right.

Matt Sharp, senior legal counsel with the Alliance Defending Freedom. Thank you so much for joining us today on Family Policy Matters. My pleasure.

Thanks for having me. Thank you for listening to Family Policy Matters. If you enjoyed this episode, please subscribe to the show and leave us a review to learn more about NC Family and the work we do to promote and preserve faith and family in North Carolina. Visit our website at NC family dot org. That's NC family dot o r g. And check us out on social media at NC Family Policy. Thanks and may God bless you and your family.