‘It’s Complicated’: White House Waffles on Whether Men Competing In Women’s Sports Is ‘Fair’

White House Press Secretary Karine Jean-Pierre speaks during a press briefing at the White House in Washington on Aug. 28, 2023. Madalina Vasiliu/The Epoch Times

In a testy exchange during a press briefing on Tuesday, White House press secretary Karine Jean-Pierre declined to provide a definitive answer when asked by a reporter whether the Biden administration believes it’s “fair” for men who identify as women to compete in female sports, adding that “it is complicated.”

A reporter asked Ms. Jean-Pierre during an Aug. 29 White House press briefing whether President Joe Biden cares whether “girls are allowed to compete in sports without fear of injury” or if he believes it’s “fair for girls to have to compete against biological males.”

Ms. Jean-Pierre replied by saying that the issue is “complicated” and defies a simple yes or no answer.

“It is truly a complicated issue with a wide range of views,” Ms. Jean-Pierre said. “There is no yes or no answer to this. It is complicated.”

The press secretary then provided some context, namely that there’s a proposal of rulemaking put forward by the Department of Education (DOE) that is currently being considered that targets the issue of biological males playing in female sports.

“There’s a rule that the Department of Education has put forward, and we’re going to let that process move forward,” Ms. Jean-Pierre said.

“Again, we want to make sure that while we establish guardrails with this rule, that we also prevent discrimination as well against transgender kids,” she said. “But again, a complicated issue with a wide range of views, and we respect that.”

Title IX Modification Proposal

Ms. Jean-Pierre’s remarks about the DOE rule refers to a proposal to amend the department’s regulations that implement Title IX of the Education Amendments of 1972, which seeks to expand protections at federally-funded schools against sex discrimination to include “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

In particular, the regulation seeks to explicitly prohibit policies or actions that prevent a person from taking part in an “education program or activity consistent with their gender identity,” meaning that it would open the door to males competing in female sports.

When announcing the proposed Title IX rule modification, Education Secretary Miguel Cardona said the changes are in accordance with President Joe Biden’s March 2021 executive order, which promised to guarantee an educational environment “free from discrimination based on sex, including sexual orientation or gender identity.”

Ms. Jean-Pierre said during the press conference that the proposed rule “gives schools the flexibility to establish their own athletic policies” and that it seeks to strike a balance between establishing guardrails to protect women it also seeks “to prevent discrimination against transgender kids.”

“That is something that is incredibly important, that the president wants to make sure that we also do that as well. So, I’m just not going to get ahead of that,” she added.

The public comment on the proposed Title IX modification lasts until October 2023, with the DOE saying in an update in May that it had received over 240,000 public comments.

“Carefully considering and reviewing these comments takes time, and is essential to ensuring the final rule is enduring,” the DOE said in the update.

Comments both in support and in opposition to the rule have been submitted.

“While parents across the country are demanding the rejection of ‘woke’ policies, the Department of Education instead has chosen to hijack Title IX to force gender ideology on children without their parents’ knowledge or approval,” reads one comment.

Another commenter wrote: “DO NOT legally force public schools to allow biological men to participate in women’s sports and access facilities such as locker rooms and bathrooms.”

“Stop enabling everyone and anyone who denies the science of biology: humans are born male or female, period,” the commenter added.

Another commenter said there are parts of the new rule that they agree with, including allowing the Title IX coordinator to also serve as investigator, and that there would be a streamlined process in place that ensures districts can “quickly utilize informal resolutions when Title IX concerns or violations arise.”

Among the provisions of the rule that the commenter expressed disagreement with includes the broadened definition of misconduct, which “would exponentially increase the number of cases that would be forced to undergo this procedure at an incredibly increased cost to the districts, and ultimately the taxpayer.”

Freedom of Speech Concerns

The Alliance Defending Freedom (ADF), an Arizona-based public interest law firm that submitted comments, said that expanding the definition of sex discrimination in education threatens free speech.

“Students who identify as transgender commonly request to be addressed by different names and pronouns,” ADF said in its comment.

“The use of pronouns inconsistent with a person’s sex communicates a message: that what makes a person a man or a woman is solely that person’s sense of being a man or a woman,” the group continued.

“Students who take a contrary view of the relationship between biological sex and personal identity (for religious, philosophical, scientific, or other reasons) may be reluctant to use those terms because using them contradicts their own deeply held views,” ADF said.

The group argued that the DOE’s proposed revisions would both restrict what people can say (such as addressing someone by pronouns consistent with their biological sex) and force them to speak certain utterances (such as referring to someone by the pronouns of their choice).

Fight Over Definition of ‘Sex’

The DOE’s proposed regulation marks the latest move in a long-running dispute over what exactly “sex” means in Title IX.

The Obama administration first tried to expand the definition, writing in an April 2011 “Dear Colleague” letter that Title IX protection “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

The Trump administration rejected that guidance, saying that only Congress or the Supreme Court has the authority to redefine that term.

In January 2021, the Education Department issued a memorandum stating that the term “sex” in Title IX unequivocally means “biological sex, male or female.” The memo (pdf), issued the day after Betsy DeVos resigned as education secretary and just days before Biden entered the White House, says that schools don’t violate the law when they ban transgender students from using restrooms matching their claimed gender identities.

Reed Rubinstein, then-principal deputy general counsel for the DOE, argued that the term “sex” must be interpreted based on what it meant when Title IX became law.

“Based on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term ’sex' in Title IX to mean biological sex, male or female,” Mr. Rubinstein wrote in the memo. “Congress has the authority to rewrite Title IX and redefine its terms at any time. To date, however, Congress has chosen not to do so.”

The Rubinstein memo is written as a discussion of whether the enforcement of Title IX was affected by the U.S. Supreme Court’s June 2020 decision in Bostock v. Clayton County. In that case, a 6–3 majority ruled that employment discrimination based on one’s sexual orientation is a violation of Title VII, the federal law prohibiting discrimination in the workplace on the basis of sex.

“The court decided the case narrowly, specifically refusing to extend its holding to Title IX and other differently drafted statutes,” Mr. Rubinstein noted.

Bill Pan contributed to this report.