Opinion from a Libertarian ViewPoint

Due Process or Transgender Protection on Campus? | Mises Wire

Posted by M. C. on May 2, 2023

People who oppose due process are opposing common decency in the legal treatment of others. With bitter irony, they do so in the name of protecting the vulnerable—in this case, the gender identified. Anyone who needs protection against common decency and truth is not pursuing justice. They want privilege and power. If the voice of reason can still be heard, people need to hear it now.

Wendy McElroy

College campuses have long been battlegrounds between due process for those accused of sexual misconduct (innocent until proven guilty) and legal privileges for alleged victims who many automatically believe (guilty until proven innocent).

The front line is Title IX, the 1972 federal law designed to curb sex discrimination in schools. President Joe Biden’s Department of Education (DOE) wants to add gender identity to the mix. The players in this renewed conflict are Senator John Kennedy of Louisiana, who has introduced a bill to champion due process rights on campus, and Biden’s DOE, who is expanding the definition of discrimination.

The specific issue addressed by the DOE is athletic eligibility. The issue is a political flash point that revolves around the question, “Should transgendered male-to-females compete in women’s sports or is their strength advantage unfair to biological females?” This article examines the competing and overlapping provisions of the draft Title IX regulation, the 2023 draft sports regulation, and Kennedy’s bill.

The Biden executive order 14021 (March 8, 2021) that sparked the current conflict is entitled “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, including Sexual Orientation or Gender Identity.” It is a statement of intent. On April 6, 2023, the DOE rolled out an implementation mechanism for the executive order “Proposed Change to its Title IX Regulations on Students’ Eligibility for Athletic Teams.”

The language in the 116-page document is confusing and vague, but the core of it redefines terms such as “discrimination” and favorably includes gender identity into the framework for athletic eligibility. The opening summary states that the DOE will “set out a standard that would govern a recipient’s adoption or application of sex-related criteria” that might “limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity.” This regulation presumes transgendered athletes are able participate in their chosen categories unless the school identifies safety reasons to not allow this.

Backlash from progressives has been swift. The “Proposed Change” is insufficiently protrans, they claim. “These regulations specify methods schools may employ to determine a student’s sex, including invasive physical examinations,” complains the transgender journalist Erin Reed.

Moreover, the DOE document would give school districts the final say on whether injecting gender identity into athletics is problematic. Progressives react with horror. Actually, this is no issue at all. As with past DOE recommendations, schools are likely to over comply not only due to the extreme liberal bias on most campuses but also to avoid a catastrophic loss of federal funds. The “Proposed Change” makes this threat explicitly.

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