When Representative Marsha Blackburn asked Ketanji Brown Jackson to define what a “woman” is at the Supreme Court Justice’s confirmation last year, it provided more than just a semantic sideshow between a hard-right warrior and a darling of the left at a critical juncture in our Nation’s political history.
Jackson’s subsequent non-answer, and actually Blackburn’s question itself, dug up a fundamental issue in US law and the underpinnings of our jurisprudence: the definition of gender, and how that impacts the way we treat biological sex assignment in education, sports, and other arenas.
The issue has gained even more traction now that the Biden Administration has announced that Title IX apparently covers discrimination based on sexual orientation and gender identity. And it reaches back to what’s known as the “major questions doctrine.”
What is the major questions doctrine?
The major questions doctrine is a limiting principle on agency action. It applies to federal agencies, which are often allowed to propose regulations and enact them—generally by “interpreting” existing federal laws—without going back through Congress or the president.
The doctrine ensures that agencies do not write words into statutes. The doctrine holds hostage the alleged wide-sweeping authority until it finds that Congress was explicit in its grant to the agencies. Put simply, it makes sure that Congress explicitly said the agencies could regulate “major questions” of economic and political significance. As the Supreme Court famously quipped, Congress does not “hide elephants in mouseholes.”
In 2022, the Supreme Court breathed life into the major questions doctrine in its decision regarding a nationwide Clean Power Plan originally enacted under President Obama. The EPA said it was merely interpreting vague federal laws in order to impose federal standards on power plants throughout the country. The Supreme Court rejected that argument, stating that such an enormous regulatory regime presented a “major question,” and thus required clear and unambiguous authorization from Congress. Since that was lacking, the agency didn’t have the authority to impose the Clean Power Plan.
The Department of Education similarly lacks the authority to change the definition of “sex” under Title IX absent explicit authorization from Congress.
How does the major questions doctrine apply to Title IX?
Title IX is the federal law that protects against schools and other institutions discriminating on the basis of sex. Passed as an amendment to the Higher Education Act in 1972, Title IX’s chief aim is to ensure equality based on sex in educational programs and in schools that receive federal funding. Its most well-known effect was on women’s athletics in public schools and universities.
In 1972, there were only 300,000 female high school athletes in the entire country, and only 12% of women completed in college. Today, there are 10 times more female high school athletes, and 56% of college students are women. In short, Title IX was largely successful in achieving its goal of parity among males and females.
However, in 1972, the use of the word “sex” in the Title IX’s text specifically referred to biological sex. It did not refer to concepts like sexual orientation or gender identity. We know this because in 1972, nearly every common dictionary and public discourse on the term referred to “sex” only in terms of biology.
We also know “sex” meant biological sex because if “sex” meant subjective notions of gender identity, Title IX would not have achieved the successes it has for women—biological men would have long ago been dominating women’s sports by identifying as women. In fact, Title IX would be entirely useless if “sex” did not mean biological sex. Why would Congress enact a superfluous statute?
Yet, in 2021, the Department of Education formally issued a new interpretation of Title IX that encompasses “sexual orientation” and “gender identity” under the umbrella of the term “sex.” The new interpretation is not limited to homosexual students or students who are born male and then identify as female, or vice versa. Instead, it seemingly covers the plethora of sexual orientations, gender identities, and their associated facilities, pronouns, and sports teams.
In other words, the Department is adding onto Title IX’s text, and not merely interpreting it. This is a clear-cut example of an executive agency trying to legislate on a “major question” that Congress has not answered itself.
We know because they tried
Agencies aren’t supposed to enact sweeping regulatory changes across the entire country simply by interpreting decades-old statutes with a modern twist, pointing to invisible ink as authority. Such broad changes address a “major question” that agencies must have clear authority over. Otherwise, only Congress may address it.
If Congress wanted the Department of Education to apply Title IX to the newly-formed 72 genders by requiring the provision of dorms, sports teams, and use of preferred pronouns for those genders, Congress would have said so.
In fact, Congress itself recently tried to pass a bill that would have prohibited discrimination on the basis of sexual orientation and gender identity in education. But that bill failed. Failed bills that attempt to accomplish the very thing the agencies claim to already have authority to regulate are the hallmark of a major questions doctrine violation. Why seek permission if you already have the authority?
The Department of Education’s interpretation was halted in 20 states. However, the Biden Administration has appealed the ruling, and the interpretation still applies to the other 30 states. If successful, it would mean that local schools across the country—from California to Florida—would be compelled to adhere to novel conceptions of gender and sexual orientation.
Title IX was never understood to encompass anything other than binary, biological sex. And the Department of Education cannot sound the death knell for Title IX by reimagining what “sex” means. Only Congress holds such power.