The Foul Trans-Governing of School Sports | Opinion

Last week, the Biden administration introduced its proposed Title IX regulation on transgender participation in sports. The backlash came from both the Right and the Left. Ryan Walters, the conservative state superintendent of Oklahoma, tweeted that it was an "incredibly misguided and stupid escalation," and evidence that "the Biden administration will stop at nothing to destroy our families and endanger girls in every school." On the other hand, Rep. Alexandria Ocasio-Cortez (D-NY) tweeted that it was "indefensible," "embarrassing," and a "disgrace."

The moderate political instinct is that if someone is angering both extremes, he must be doing something right. And it is plausible that this Title IX regulation could yield an outcome that a majority of Americans would be comfortable with. But as a matter of governance, it is a monstrosity.

The regulation appears to grant the fundamental premise of the conservative argument on transgender athletes, while in practice also potentially ceding very little of the liberal position—all while setting up a legal showdown likely destined for the U.S. Supreme Court that will inevitably be demagogued on partisan terms as favorable as possible to Democrats.

Here is how it would work. Schools can predicate athletic participation on biological sex so long as the district can articulate an "important educational objective," such as preserving fairness or preventing injury. In practice, girls' wrestling is likely safe. Elementary school intramural soccer, on the other hand, would likely be required to base participation not on biological sex, but on gender identity.

But what about high school varsity soccer? Tennis? Junior varsity volleyball? The Department of Education's Office for Civil Rights (OCR) reserves the right to make these decisions on a case-by-case basis, based on how much bureaucrats like a given school district's rationale for restriction. Rather than set uniform national standards—e.g., high school varsity soccer may be based in biological sex, but junior varsity soccer must be based in gender identity—each school must develop detailed reasons for basing participation on biological sex for every sport at every athletic level. OCR then decides whether it approves of the school's stipulated reasons. If not, school districts risk losing federal funds.

What's possible: OCR could enforce its authority unevenly, permitting sex segregation in some districts while prohibiting it in others based on its arbitrary and partisan preferences for districts' different stated justifications. This might sound far-fetched, but historically OCR has used its civil rights enforcement investigations to advance its agenda much further than the text of the regulation or the accompanying guidance would seem to permit.

What's likely: The Biden administration opens an enforcement investigation into a school district and forces it to change its policy on, say, girls' varsity basketball because bureaucrats decided the district didn't provide compelling enough reasons as to why only biological girls should compete. Other school districts would then be more inclined to permit biological males to play, rather than to beef up their justifications and hope that they would satisfy OCR if it came knocking and threatening to strip all federal funding.

What's certain: The rule enables different school districts to come to different participation determinations for the same sport. A conservative district might only permit biological women to compete in women's track-and-field. A liberal district, by contrast, could permit biological male participation. Biological males could win state titles in girls' track in blue and red states.

It is possible that red state high school athletic associations will avoid this problem by requiring all schools to adopt a uniform set of standards for participation. And the Biden administration could, in turn, decide to allow all red state high school athletics to base all student-athlete participation on biological sex. In that case, conservatives' practical policy preferences would be met: Competition would be fair and the risk of injury would be minimal.

But even if the typical parent would be satisfied, the typical Republican legislator, governor, and state attorney general would not be. The Founding Founders designed our system of separated powers to preserve liberty by, as James Madison famously put it in The Federalist No. 51, encouraging ambition to counteract ambition. They assumed that an arrogation of power on one level would be met by a zealous defense of power on another level. Twenty states thus far have passed laws that predicate athletic participation on biological sex. Twenty states will thus not roll over and overhaul their laws simply because the Biden administration says so.

This could, and in my view likely will, lead to a legal showdown that might become the strangest Supreme Court spectacle in quite some time. The deeper governance questions would be: Does the federal bureaucracy have the power to override state laws based on suddenly deciding that a single word ("sex") means something fundamentally different ("gender identity"), which a law's architects 50 years ago could never have imagined? Can the Department of Education declare a never-before-even-controversial custom presumptively illegal unless it is arbitrarily satisfied by a particular school district's rationale offered to defend it?

These are profound questions. But they may not be the practical question at the center of the controversy. The practical question may well be: Should red states be permitted to segregate soccer by biological sex for seven-year-olds? That would be the practical question, because you can be sure that the Democrats and their mainstream media cheerleaders would insist on framing it that way.

Assuming the Title IX regulation is implemented reasonably (not a safe assumption), then it is plausible that every state could see its preferred policy outcome prevail even as a deeply divisive national debate rages over a looming Supreme Court case. It would have been far better for the Biden administration to simply let the democratic process play out, rather than create further governance confusion and social division in the ever-more-strained name of civil rights.

Max Eden is a research fellow at the American Enterprise Institute.

The views expressed in this article are the writer's own.