The Biden administration announced its proposed changes to Title IX, the federal law that protects against sex-based discrimination and harassment. With the Biden-proposed language, Title IX is poised to become a weapon to suppress and punish unpopular speech on American college campuses—speech as innocuous as straightforward discussions of different perspectives on gender and sexuality, respectful summaries of traditional viewpoints, or even polite use of a person’s biological pronouns.
It all feels a little dystopian. Title IX is part of a civil rights law that set out to protect American students from discrimination or harassment on the basis of sex. It is the law that (for now) protects women’s sports teams and sex-specific showers, locker rooms, and restrooms. How could a presidential administration distort a civil rights law so badly that the law goes from protecting rights to eliminating them?
The change itself is incredibly simple. All the Biden administration is proposing to do is change the meaning of the word “sex” within Title IX. Messing with the definition of that one word is enough to turn the whole law inside out.
Here is some language from the federal government about the proposed change, which is in a public comment period until September 12, 2022:
The Department therefore proposes that the current regulations should be amended to provide greater clarity regarding the scope of sex discrimination, including recipients’ obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
The upshot of this is that any perceived discrimination on the basis of any of those characteristics could become a violation of federal law. That includes something like choosing to respect the English language and to use someone’s biological pronouns, or choosing to uphold traditional beliefs about gender and sexuality within a student organization.
As an example of the kinds of free speech restrictions students already face on many campuses, the University of Idaho censored three law students earlier this year for speaking in accordance with their religious beliefs. The students are members of the University of Idaho College of Law’s Christian Legal Society (CLS) chapter. The situation began when a student asked the chapter why it believed that marriage is between a man and a woman.
The CLS members respectfully engaged with the question; one of them explained that this view is the only view of marriage affirmed by the Bible. Another of the CLS members followed up with a handwritten note, offering further discussion so that they could understand one another’s views better.
Biblical views, no matter how respectfully expressed, are often unwelcome on public campuses, however. A few days later, the student publicly denounced the CLS members at a panel with members of the American Bar Association. A third CLS member was present and spoke out, explaining that the student’s characterization was inaccurate and sharing that from his perspective, religious freedom on campus was in danger.
A few days later, with no warning and no chance for the CLS members to defend themselves, the university issued no-contact orders prohibiting them from having any contact with the student who asked them a question about their religious beliefs.
These incidents may seem like campus squabbles, but they have a huge impact on students’ future prospects and on culture as a whole. Being denounced before a panel of the Bar Association and then receiving a no-contact order from your university—these are not good marks to have on your track record as a law student. The mere threat of such retaliation is enough to chill free speech on campus.
Beyond that, however, the reality is that what happens on campus does not stay on campus. If students learn in college that holding a traditional view—or even exploring that view—of marriage and sexuality amounts to harassment, they will carry that lesson into their lives as adults. If the Biden administration makes its proposed changes, all such views could be seen as harassment and discrimination on campus. While biblical views on sexuality may be increasingly at odds with cultural orthodoxy, government enforced coercion is anathema to a free society. All speech must be protected if civil discourse is to survive. If the Biden administration pushes these changes to Title IX, future professionals, politicians, artists, teachers, doctors, and scientists will all learn, from day one in a public school setting, that speech isn’t really free.
Christiana Kiefer is senior counsel with Alliance Defending Freedom (@ADFLegal).