The Athletics NPRM [Notice of Proposed Rulemaking] proposes fundamental revisions that would profoundly undermine Title IX’s longstanding commitment to ensuring that America’s educational institutions provide equal opportunities for girls and women in competitive school athletics programs. Proposed 34 CFR § 106.
[A]lthough Title IX itself nowhere expressly mandates any effect regarding school sports, Title IX brought about a “revolution” in female intercollegiate and interscholastic athletics. Deborah Brake,, 34 U. Mich. J. L. Reform 13, 15 . “Fewer than 300,000 female students participated in interscholastic athletics in 1971. By 1998–99, that number exceed 2.6 million, with significant increases in each intervening year.
The Proposed Rule is Something Only Congress, not an Unaccountable Federal Agency, Should Enact, if DesiredIn the Proposed Rule, the Government cites a relatively recent U.S. Supreme Court case as supporting the Proposed Rule. It does not, for two reasons., 140 S. Ct.
But it does not therefore mean that transgender women, i.e., people who were born male but identify as women, especially those who have undergone no hormone therapy or other treatment whatsoever, should be allowed on women’s sports teams. Disallowing that would NOT be the result of naked prejudice or bias, as it would in the employment context, but would rather be based on science, i.e., the inherent physical differences between male and female athletes, as will be explained in the next section.
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