Superintendent Weaver Correct on Biden Title IX Regulation

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

—Preamble to Title IX of the Education Amendments of 1972

The Department [of Education]…chooses to specify in the final regulations that Title IX’s prohibition on sex discrimination includes discrimination on the basis of pregnancy or related conditions, sex stereotypes, sex characteristics, sexual orientation, and gender identity.

—Biden Administration Guidance, April 19, 2023, p.1487

When South Carolina Superintendent Ellen Weaver announced her belief that the Biden Administration’s Title IX regulation represented a drastic policy change that was not yet final, she was roundly criticized. The headline of one news outlet all but accused Weaver of instructing school districts to break the law by disregarding a direct order from the U.S. Department of Education.

So, how has Weaver’s “wait and see” statement on the Biden Administration’s rewrite of Title IX fared in the 38 days since she issued it?

One method for assessing her advice to South Carolina school districts is to review the national reaction. According to our count, since April 23, 26 states, including South Carolina, have filed suit against the Biden administration’s novel interpretation of Title IX.

Part of the problem here is pure partisanship.

With the revolving door of presidential administrations—Bush then Obama, then Trump, then Biden—comes administrative guidance and reversal of guidance. Those who decry Weaver’s bold stand allowing the legal issues around Title IX to settle were no doubt calling for the very same wait-and-see position when the Trump Administration was providing guidance.  For the last 25 years, through guidance, state officials have been ping-ponged from one overtly partisan legal perspective to another. (You may have noticed that on each inauguration day, the incoming administration signs a host of executive orders undoing the executive orders of the outgoing one.)

The “guidance” trend is troubling. With guidance, an activist agency (be it Democratic or Republican), much like an activist court, can in essence make law, which constitutionally is the prerogative of Congress and state legislatures alone. Palmetto Promise Institute’s national affiliate, The State Policy Network (SPN), is so concerned about the dangers of guidance that it has launched a Subregulatory Guidance Tracker as a part of its Center for Practical Federalism. We highly recommend you take a look.

Now, back to Title IX.

If you read the introduction to Title IX found at the head of this post, you will see that the Title IX law isn’t simply about making sure that the Gamecocks or Tigers or Chanticleers place as much emphasis on women’s sports as men’s sports. It is much more than that. In higher education, the reach of Title IX flows into several areas. For example, in the case of the Biden Administration guidance, it allows the standard of proof for an accusation of sexual assault on a college campus to change from clear and convincing evidence of an assault to a preponderance of the evidence standard.

That means the right to due process (a hearing with the opportunity to cross-examine an accuser) that is present in criminal cases in this country would be out the window on a college campus. That’s a huge difference and could present enormous problems for college officials. But this obtuse interpretation of the rule pales in comparison to how the new rule treats the definition of sex.

Here again, is the wording from the new Biden Administration guidance memorandum:

The Department [of Education]…chooses to specify in the final regulations that Title IX’s prohibition on sex discrimination includes discrimination on the basis of pregnancy or related conditions, sex stereotypes, sex characteristics, sexual orientation, and gender identity.

In her statement, Superintendent Weaver explained it this way:

Under the guise of ‘fairness,’ the U.S. Department of Education seeks to expand the long-standing prohibition against discrimination based on ‘sex’ to include ‘sex stereotypes, sex-related characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

South Carolina is one of 24 states that requires student-athletes to participate in sports according to their biological sex, not their perceived gender identity. The Biden Administration Title IX rewrite, if followed, would require school districts in these 24 states to violate their own state’s laws. Attorney General Alan Wilson announced on April 30 that he would fiercely defend the original meaning of sex in Title IX.

Wilson went on to say: “As a dad of a teenage daughter, I want her to be able to use the bathroom and locker rooms at school without worrying about her safety or having the eyes of a biological male where they should not be. This is not a complicated idea, legally or otherwise, and we’re committed to fighting back as long as it takes.”

The bottom line is this: Superintendent Weaver was correct in not going “all in” on a regulation that has not only overreached but could change tomorrow due to court action or a change in administration. (Injunctive hearings are coming up later this summer, so we should know something soon.)

When asked about the new guidance on the floor of the South Carolina Senate, Senator Greg Hembree (R-Horry & Dillon) summarized it well: “This is a 1,500-page dumpster fire that is headed for the courts.”