First Liberty Institute, a non-profit legal group that focuses on religious liberty issues, filed official comments on behalf of Houston Christian University (HCU) last week outlining objections to proposed changes under Title IX of the U.S. Civil Rights Code.
Title IX, which prohibits sex-based discrimination in any school or education program receiving federal funding, has historically been used to bolster women’s sports. Last month, the White House formally announced a rule change that would make it a violation of federal law for such schools to categorically ban transgender athletes from participating on the team of their preferred gender identity.
Biden officials in the U.S. Department of Education claim the proposed rule offers a compromise since it allows schools to develop team eligibility criteria to prevent “sports-related injury,” but states that such criteria may not be premised on disapproval of transgender students. The criteria must also “minimize harms” to students whose opportunity to participate would be limited or denied.
“This language is an underhanded attempt to eradicate sex-separated teams,” said Keisha Russell, counsel for First Liberty Institute.
“Houston Christian University and other schools cannot meet the requirements of the rule and remain consistent with their religious beliefs. The Department’s proposed rule fails to recognize that sex-separated athletics serve an important educational goal and minimize harm to students.”
HCU, formerly Houston Baptist University, also argues that the proposed rule will be confusing for schools because the Department of Education places the burden of creating criteria for participation on the schools without offering any specific guidance.
“The rule will not permit a school to maintain criteria that assume that all male athletes who identify as female possess an unfair physical advantage over females,” wrote Russell. “Such criteria, according to the Department, would rest on “overly broad generalizations about the talents, capacities, or preferences of male and female students.”
HCU also rejects as “preposterous” the department’s claim that making a student play on the team that conflicts with the student’s gender identity would be “equivalent to medically harmful gender identity conversion efforts.”
The public comment period for the rule change, officially 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,” will be open for 32 days. Texas Attorney General Ken Paxton and 22 other state attorney generals have requested an extension of the comment period.
The proposal has already drawn more than 130,000 comments, including from a group of 20 Republican senators who noted that the Department of Education has applied inconsistent definitions of “sex” and “inherently acknowledges that there are biological differences in women and men.”
Earlier this month, Gov. Greg Abbott signed a letter in conjunction with 25 other Republican governors opposing the rule change on legal and constitutional grounds, writing that it would “attempt to coerce compliance with an uncertain, fluid, and completely subjective standard that is based on a highly politicized gender ideology.”
If approved, the new Title IX rule could conflict with Texas state law. In 2021, Abbott signed into law a ban on biological males participating in girls’ sports in K-12 public schools, and this year both chambers of the Texas legislature have approved the Save Women’s Sports Act extending the ban to intercollegiate sports.
Earlier this year, controversy erupted over a legal guidance document created for public schools by the Texas Association of School Boards (TASB) in which the non-governmental organization weighed in on transgender student policies. TASB noted that Biden was working to pass statutes that “would supersede state laws denying rights to transgender individuals.”
Former All-American collegiate swimmer Riley Gaines has been an outspoken critic of biological men competing in women’s sports after she had to compete against transgender competitor Lia Thomas at the NCAA Women’s Swimming Championships last year. After being forced to share a locker room with Thomas though the latter had not undergone gender modification surgery, Gaines tied Thomas in the competition, but NCAA officials gave Thomas the trophy.
Texas is one of 21 states enacting laws to ban biological males from competing in girls’ sports. The U.S. House approved the Protection of Women and Girls in Sports Act last month, but the Democratic-controlled Senate is unlikely to take up the legislation and Biden has promised to veto the bill if passed.
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Holly Hansen
Holly Hansen is a reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.
