We are the LGB Alliance USA, a part of an international network of organizations that work to advance the interests of lesbian, gay, and bisexual (LGB) people, and we are writing to express our disapproval of the proposed changes to Title IX that will harm same-sex attracted individuals—as well as women and girls—across campuses in this country.
First, many of the proposed changes secure in law concepts and terms which are poorly defined or undefined. The discussion on the redefinition of sex discrimination in proposed § 106.10 includes several examples:
‘Title IX’s broad prohibition on discrimination “on the basis of sex” under a recipient’s education program or activity encompasses, at a minimum, discrimination against an individual because, for example, they are or are perceived to be male, female, or nonbinary; transgender or cisgender; intersex; currently or previously pregnant; lesbian, gay, bisexual, queer, heterosexual, or asexual; or gender-conforming or gender-nonconforming.’
[Federal Register, volume 87 No 132, July 12, 2022, Proposed Rules, page 41532]
This vague language leads us to some questions. What is the legal definition of “nonbinary” or “queer” (a term still considered a slur by many LGB people)? As the common definitions of “transgender” and “cisgender” are rooted in internal, subjective perceptions of oneself, these are effectively categories that one can opt into or out of at will. Is it possible to verify an individual’s self-declared identity? How much further will this laundry-list be broadened via the phrase “at a minimum” and how well defined will these terms be? This is a clear failure in lawmaking, a potential Trojan horse with unintended consequences.
Also alarming is that proposed § 106.10 enshrines “gender identity” (another subjective, internal feeling) into law, forbidding schools from “adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity.” The consequences of these changes for women and girls are disastrous, effectively ending female-only sports and locker rooms as any male person claiming a non-male “gender identity” will be able to gain access to female spaces at will—even without “identifying” as a woman.
Further, aside from the destruction of female-only sports and spaces, § 106.10 also places females at an increased risk of violence since males—however they identify—offend at a much higher rate than females . Sacrificing the safety and equality of women and girls in the name of “LGBTQI+” is not something that we as same-sex attracted Americans asked for or will permit—especially given that many of us are lesbian or bisexual women.
The proposed changes also are disastrous for same-sex attracted students’ freedom of association; if definitions of “sexual orientation” are subjectively self-declared then there is nothing to prevent any male person from identifying as lesbian and claiming “discrimination” under Title IX if lesbians—or anyone else—refuses to recognize males as lesbians. This means that if lesbians were to form a campus group, they would have to admit males who identify as lesbians; likewise, gay men who start their own group would have to admit females who identify as gay men. Indeed, any school group dedicated to gays and lesbians would have to let in people who merely identify as gay or lesbian. But if homosexuality can include heterosexuals who simply identify as gay, the concept of “homosexuality” becomes meaningless. In other contexts, we do not recognize people as a part of a particular group purely on the basis of self-identity. For example, we do not legally recognize a white person as “black” because she identifies as such. So why should sex and sexual orientation be any different?
On our website, one of our contributors, ‘V.’, detailed the disturbing consequences of defining membership in gay and lesbian student groups according to self-identification. In his article, he detailed the attacks and hostility he received for trying to organize a group of homosexual students, and shared some of the stories of gay and lesbian students, many of whom grew up in homophobic environments, being once again shamed for their sexuality by activists ironically preaching “inclusivity” . V.’s story is just one of many. If these proposed changes to Title IX become law, that scenario would become mandatory across all American educational institutions that receive federal funds. Simply put, gay and lesbian students will be stripped of their ability to organize themselves in schools across the country. Such a loss would be tragic, given that being
able to organize according to sex and sexual orientation is such an important part of gay and lesbian culture.
Further disconcerting is the threat the proposed changes impose on freedom of speech. Specifically, the proposed changes lower the bar for what constitutes “sexual harassment” to include speech that is merely “unwelcome” [Federal Register, volume 87 No 132, July 12, 2022, Proposed Rules, page 41568-41569]. In combination with the codification of “gender identity” into the expanded definition of sex, this would empower people to use the pretense of gender identity discrimination to file harassment complaints against those who would reject them on the basis of sexual orientation. Indeed, Title IX harassment protections are already being weaponized to target people for not using preferred pronouns . Formally codifying the validity of such complaints will make matters more difficult for victims, particularly lesbians who are often the subject of interest for heterosexual males who identify themselves as “lesbians” .
While many may think that the proposed § 106.10 is an example of progressive policy change, it is worth considering that other Western liberal democracies have taken a more cautious approach. The United Kingdom’s 2004 Gender Recognition Act (GRA), the formal protocol to enable individuals to change their “gender” (sex) on legal documents, provided exemptions to maintain allowances for female-only spaces; in recent years, proposed amendments to the GRA to remove those allowances and expand self-identification were rejected after prolonged debate. Contrast that with the approach being wielded by the US Department of Education, which will effectively shoehorn the subjective concept of “gender identity” into every protection previously reserved for sex with callous disregard for the consequences. Indeed, a recent court case already blocked the implementation of the proposed changes to Title IX regarding gender identity . Clearly, the Department of Education has done a poor job at thinking through these changes before making them public.
Title IX had a lofty original purpose: to advance the rights of women and girls—as defined by their sex—in academic settings. In a noble attempt to protect all vulnerable people, proposed § 106.10 will actually destroy the sex-based protections that we’ve previously understood to be necessary. Let us not codify “identity” in this way into law and make it exceedingly difficult to use Title IX to advance the interests of women and girls. The interests of LGB people are not advanced by proposed § 106.10, and it is obscene that this proposal would in part claim its justification on our behalf when same-sex attracted people stand to lose so much from these changes. Not in our name.
Thank you for considering our input.
 “FBI — Table 42.” Uniform Crime Reporting Program, https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/tables/table-42.
 “A Rainbow by Any Other Name: In Defense of “The Homosexual.” LGB Alliance USA, https://lgbausa.org/2021/07/a-rainbow-by-any-other-name-in-defense-of-the-homosexual/.
 Matesic, Emily. “Middle schoolers accused of sexual harassment for not using preferred pronouns, parents say.” KKTV, 15 May 2022, https://www.kktv.com/2022/05/16/middle-schoolers-accused-sexual-harassment-not-usi
 Lowbridge, Caroline. “The lesbians who feel pressured to have sex and relationships with trans women.” BBC, 26 October 2021, https://www.bbc.com/news/uk-england-57853385.
 State of Tennessee et al. v. The United States Department of Education, Case No. 3:21-cv-308 (United States District Court East District of Tennessee at Knoxville 2022). https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2022/pr22-23-order.pdf.