10 May Title IX’s Iron Cage
Last month, the Biden Department of Education issued new guidance for schools on the enforcement of “Title IX” – that is, Title IX of the Education Amendments of 1972. According to the Biden Administration’s interpretation, the law, which was passed to guarantee equal treatment of males and females in schools at all levels of education, must now be applied to LGBTQ students as well, including “transgender” students:
Under the new rules, sex discrimination includes discrimination based on gender identity as well as sexual orientation. A school must not separate or treat people differently based on sex, except in limited circumstances, under the provisions and critics say that the change will allow locker rooms and bathrooms to be based on gender identity.
LGBTQ+ students who face discrimination will be entitled to a response from their school under Title IX, and those failed by their schools can seek recourse from the federal government.
Biden is also officially undoing sexual assault due process rules put in place by his predecessor and current election-year opponent, former President Donald Trump.
Needless to say, many critics – mostly on the political Right – are upset by this guidance, which they believe does precisely the opposite of what Title IX was intended to do, making it far more likely that biological males who identify as females will invade spaces and events previously reserved for biological females. Indeed, some 20+ states have already taken legal action to declare their opposition to the Biden rules and their unwillingness to enforce them.
For our part, we agree that Biden’s is an egregious and ultimately destructive interpretation of Title IX. It should be overturned as quickly as possible.
At the same time, however, we also believe that those who oppose the new rules are mistaken in blaming the current untenable situation on President Biden and the ideological extremists who staff his administration. They are a problem, to be sure, but they are not the core of the problem. In truth, egregious and ultimately destructive interpretations of Title IX have been commonplace since the law’s passage and cumulatively suggest that a bigger, far more systemic problem is to blame.
I don’t know if I have ever mentioned this before in these pages, but I wrote my master’s thesis on Title IX and its impact on college athletics. I am by no means an expert on the subject, but I do have a little insight that might be missing from the current debate. I don’t bring it up mostly because I fear that the University of Nebraska may have digitized its library of theses and dissertations, making it possible for someone to look up and read my little paper and, thereby, to discover that I was (and may still be) an idiot.
In any case, back when I was finishing my M.A., before I was “educated,” I was the type of conservative who believed that Big Government was bad specifically because it cost too much and thus required unsustainable and immoral levels of taxation. I started my thesis research examining non-tax forms of revenue, which, in the state of Nebraska, naturally led me to the University’s football program and the vast amounts of money it generated through various means. Then, as now, the football program at the University of Nebraska earned more than enough revenue to support the entire athletics department – all men’s and women’s sports, none of which were self-sustaining – and had enough left over to give back to the University in the form of general scholarships.
Although football programs at major schools like Nebraska (and Oklahoma and Alabama and Michigan, etc.) were massive revenue generators, enabling the worry-free funding of all other sports, feminist agitators were trying to force the NCAA to mandate scholarship and spending cuts for football, arguing that the sheer size of the programs was de facto discriminatory against women. With 100+ scholarships per football program, women couldn’t possibly receive “equal” funding and other resources. They simply couldn’t field enough teams to keep up.
At the time, in response to court rulings in various lawsuits, colleges were being forced to eliminate men’s athletics programs – mostly swimming and wrestling – in order to meet the new interpretation of equality. Once upon a time, equality under Title IX was measured in terms of interest: a federally funded school must provide enough athletics programs to meet the demand of its student population. After a while, that changed, and equality was measured proportionally: does the school offer athletics opportunities equal to the proportion of the sexes at the institution in question? Then it changed to a slightly different proportionality measure: do the opportunities reflect the gender divisions in society as a whole? Then it became a question f the number of teams fielded for men and women; then the number of scholarships offered; then the amount of money spent, and so on. The enforcement of Title IX changed almost constantly, based either on judicial interpretation or administrative guidance. By the late 1900s (when I wrote my thesis), the law had been changed so often and so decisively that it no longer reflected the presumed intentions of its legislative authors.
To be clear, that was, in part, by design. The base text of Title IX is 37 words long: “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.” While this text is followed by several amendments providing specific details, the base of the law was deliberately kept short and vague – to allow for regulatory interpretation. Its authors did not, however, expect that this interpretative leeway would be used overtly to punish male athletes (as it eventually was) as opposed to simply protecting female athletes. They were naïve and, frankly, ignorant.
In its application, Title IX became – and remains – an example of Max Weber’s “iron cage.” Weber believed that society’s perpetual quest for greater and greater efficiency and rationalism would enable the creation of a bureaucratic apparatus that would “trap” its individual inhabitants like “the polar night of icy darkness.” Bureaucratization, while beneficial and unavoidable would, in its ultimate form, foment a stifling environment and a paradoxical irrationality of rule implementation.
In the late 1960s and early 1970s, Congress, unwilling to take responsibility for its own potentially destructive actions and wanting to give executive departments some leeway in enforcing the law, began to write vaguer and vaguer legislation, which enabled greater and greater regulatory and judicial interpretation. Most, if not all this interpretation was conducted in good faith to achieve the best, most equitable implementation of the law in question. Nevertheless, its effects were (and are) wholly irrational and destructive – precisely as Weber cautioned.
In the immediate term, states should challenge Title IX in court and hope that the new Biden rules are deemed overly expansive. In the longer term, however, the ultimate burden for fixing this problem lies with Congress. Title IX has always been a mess. A friendlier reinterpretation will not fix that mess. Only Congress can fix its mistake and undo the damage its predecessor did.
