Statutory Misinterpretation: How the Department of Education Squinted at Title IX and Pretended ‘Sex’ Wasn’t Binary

June 6, 2024

Many non-lawyers instinctively recoil when unelected agency bureaucrats inject hotly debated social issues into federal regulations. The common man intuitively understands what agencies do not—agencies need Congress’s permission before they enact regulations. Agencies have toppled Congress’s authority by a slight-of-hand called manipulative statutory interpretation.

Legitimate statutory interpretation is a Nancy Drew-esque sleuthing escapade to determine what our elected legislators meant the day they passed a given statute—but only if the statutory terms aren’t clear. The meaning of a well-drafted statute should reveal itself relatively quickly and unambiguously. But federal agencies have been abusing interpretative measures by claiming ambiguity where it does not exist, redefining commonly understood words, and insisting that statutory silence acts as a permission slip. Should Chevron deference to an agency’s interpretation of an ambiguous term not be overruled, Katy, bar the door.

So, how should statutes be interpreted? And what are the tangible implications of improper statutory interpretation?

First, it makes sense to read the literal text of the statute before diving into any legislative history. What precise language was used? If a term is unclear, consider when the statute was written and consult period-appropriate dictionaries. What did people during that time think the term meant? What is the broader context and purpose of the statute? What is its title? Is it part of a larger bill? These are all clues that should give way to an answer before resorting to other methods of interpretation.

Second, if there is still ambiguity, what does the statute’s legislative history say? This is sometimes called “losers’ history.” Why? Only the actual words of a statute are voted on and passed by Congress, not the thousands of thoughts the individual legislators who passed the bill shared (or perhaps didn’t) before voting. This history can be enlightening, but it’s not authoritative, much less conclusive.

Third, if there isn’t much legislative history, perhaps the way the statute has evolved (or stood unchanged) will lead to further interpretative enlightenment. Was the statute amended after a court interpreted the statute in a way Congress may not have intended? Were certain terms redefined? This type of analysis strays farther away from the plain meaning of the statute and thus opens the door to boundless interpretations and speculations about what the drafters meant.

Why does the proper order of statutory interpretation matter? Well, consider the fact that the Biden administration has promulgated 923 regulations, resulting in countless case studies on how to improperly interpret a statute. Some of the worst agency offenders so far include the Department of Education, the Equal Employment Opportunity Commission, and the Environmental Protection Agency. Without writing a treatise on agency wrongs, let us examine one regulatory blunder that is representative of this administration’s tactics.

In April, the Department of Education inverted by administrative fiat the entire purpose of Title IX by reinventing a commonly understood term—“sex.” Passed by Congress in 1972, Title IX is straightforward and reads, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

On its face, the statute seems pretty clear. In fact, the statute was believed to be clear until a social upheaval of the term “sex” permeated society, put in motion by the Supreme Court’s 2020 Bostock opinion holding that the term “sex” in another anti-discrimination statute included sexual orientation. However, statutes—just like the Constitution—are not living documents. If the term “sex” were to change with the times without a congressional amendment of the original statute, schools would never know what their legal obligations were. Now, acting as the arbiter of social change and without any legitimate authorization from our elected representatives in Congress, the Department of Education has redefined “[d]iscrimination on the basis of sex” to include “discrimination on [the] basis of … sexual orientation, and gender identity.”

“Sex,” until recently, has not been commonly understood to mean sexual orientation or gender identity. As one federal court of appeals stated, “[r]eputable dictionary definitions of ‘sex’ from the time of Title IX’s enactment show that when Congress prohibited discrimination on the basis of ‘sex’ in education, it meant biological sex, i.e., discrimination between males and females.” The court went on to examine the structure of Title IX, finding it curious that the drafters would allow for sex-segregated facilities if the term “sex” was indeed ambiguous. The statutory inquiry could and should have stopped there for the Department of Education.

Even stepping outside the most important assessment of statutory interpretation—reading the text—and peering into the motivation behind the bill, “sex” still meant binary, biological differences. Title IX’s sponsor, Representative Patsy Mink, pushed the bill after being rejected from medical school because of her sex. According to Title IX scholar Sarah Parshall Perry, “Title IX’s origins [were] in the women’s movement[,]” backed up by an “extensive congressional record indicating its mission to equalize educational opportunities for women[.]”

This notion that Title IX was tailored to advance the causes of biological women was further verified when, according to one scholar, “Congress had a chance in 1987 to amend the Title IX ‘sex’ definition to include ‘gender identity,’ when it amended Title IX under the Civil Rights Restoration Act. But it did not.”

Unsurprisingly, passage of Title IX resulted in an unprecedented increase in women’s participation in sports—there are 10x more female athletes today than before 1972. This could not have been achieved if “sex” meant anything other than biological differences.

The plain meaning of the text of Title IX and the contemporary public understanding of the term “sex” when Title IX was enacted all point to “sex” meaning biological differences.

Even less persuasive points such as the motivation of Representative Mink in sponsoring the bill, the lack of statutory change over 50+ years, and the surge in participation by female athletes, all point to the same answer. The current Department of Education didn’t like the binary meaning of “sex,” so it squinted really hard—finding an uncontroversial and well-understood term to be ambiguous after all these years—and then concocted a new definition that effectively inverted the statute’s original purpose.

Statutory interpretation may seem like a dry, dull topic, but it greatly affects Americans’ daily lives. Agencies are aware that a slight manipulation of one word in a statute unlocks a new level of bureaucratic power that Congress never intended. It’s easier to promulgate a regulation and see whether a court will someday strike it down than it is to wait for Congress to amend a statute through legislation. What the American public intuitively knows is wrong, public interest organizations like NCLA strive to correct.