Biden's new Title IX rules classify 'misgendering' as 'sex-based discrimination'

If schools don't go after students or faculty who refuse to use an individual's preferred pronouns, then the school could risk their federal funding.

Libby Emmons Brooklyn NY
The new Title IX rules out from Biden's Department of Education, headed by Miguel Cardona, shied away from making a final determination on the eligibility of trans-identified male athletes to play in women and girls school sports, but they did expand the concept of sex-based discrimination to include so-called misgendering.

Misgendering, for the uninitiated, is to correctly identify a person according to their biological sex when referring to them, using terms man, woman, and the associated pronouns, even when that person believes themselves to be the opposite sex or seeks to present themselves as belonging to the opposite sex.

In the new rules, when that is done intentionally, it is classified as "sex-based discrimination." They say, "a stray remark, such as a misuse of language, would not constitute harassment under this standard," and leave the door open for intentional misgendering, or refusal to use an individual's preferred pronouns.

Under the section called "Hostile Environment Sex-Based Harassment—Sex Stereotyping and Gender Identity," which lands on page 148 of the 1,577-page document, the DOE states that misgendering with the purpose to harm is a violation of Title IX. If schools don't go after students or faculty who refuse to use an individual's preferred pronouns, then the school could risk their federal funding.

"The Department has long recognized, consistent with the text and purpose of the statue and courts' interpretations, that Title IX's prohibition on sex discrimination encompasses harassment based on sex stereotypes," they write.

This means that it would be discriminatory to refer to a male who dresses like a woman as male simply because he is one. To assume that a male who looks male, despite his best efforts, is male is to discriminate against him based on sex stereotypes, per the DOE's new regulations.

The new rules reference the 2001 Revised Sexual Harassment Guidance, which notes that "acts of verbal, nonverbal or physical aggression, intimidation, or hostility based on sex or sex-stereotyping [is] a form of sex discrimination to which a school must respond, if it rises to a level that denies or limits a student's ability to participate in or benefit from the educational program."

As such, the DOE determined that "conduct directed at a student’s nonconformity with stereotypical notions of how boys or girls are expected to act and appear or that seeks to restrict students from participating in activities that are not stereotypically associated with the students’ sex could constitute sex-based harassment that creates a hostile environment."

"Similarly, unwelcome conduct based on gender identity can create a hostile environment when it otherwise satisfies the definition of sex-based harassment," they state, going on to say that "Courts have also recognized that policies that prevent transgender students from participating in school consistent with their gender identity can harm those students."

The rules do not discuss potential harm to women when men are given access to their sex-segregated spaces, such as bathrooms, locker rooms, or admittance to female-only organizations. Instead, it prioritizes males who claim to be women over women, expanding the definition of sex to include gender identity as opposed to simply biological sex, which was the basis for the 1972 rules in the first place.

"Sex-based harassment," the DOE determines, "including harassment predicated on sex stereotyping or gender identity, is covered by Title IX if it is sex-based, unwelcome, subjectively and objectively offensive, and sufficiently severe or pervasive to limit or deny a student’s ability to participate in or benefit from a recipient’s education program or activity (i.e., creates a hostile environment)."

In other words, refusing to acknowledge an individual's gender identity is classified as "harm" and sex-based discrimination. The rationale for this comes from the Supreme Court's narrow ruling in the Bostock decision of 2020, when it was determined that it was discriminatory on the basis of sex to prevent a male employee from wearing a dress because a woman wearing a dress would not be prevented from doing so. 

"Thus, harassing a student—including acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on the student’s nonconformity with stereotypical notions of masculinity and femininity or gender identity—can constitute discrimination on the basis of sex under Title IX in certain circumstances. Recipients have a responsibility to protect students against sex-based harassment. OCR will continue to address complaints of harassment based on sex stereotypes and gender identity, consistent with OCR’s jurisdiction under Title IX and the final regulations."

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