September 29 2026 - 12:50pm
Yesterday, the US Department of Education formally rescinded the Biden administration’s 2024 Title IX regulations. Those regulations expanded the law’s definition of sex discrimination to include discrimination based on sexual orientation and gender identity.
The move should be welcomed, though it is largely a formality. A federal court vacated the Biden rule nationwide in January 2025, after which the Education Department returned to enforcing the 2020 regulations. The department’s action yesterday formally removes the 2024 rule from the Code of Federal Regulations.
In 2010, under Barack Obama, the Education Department said that, while sexual orientation was not itself a protected Title IX category, gay students could still be protected from sex discrimination under the law. The principle was simple and humane: a feminine boy is still a boy. Later, also under Obama, the administration treated gender identity as a separate issue. In 2016, it instructed schools to treat transgender students according to their gender identity, including in sex-separated facilities.
Then came the Supreme Court’s 2020 Bostock decision, which held that Title VII’s separate prohibition on sex discrimination in employment covers homosexuality and transgender status. In 2021, the Biden administration applied that reasoning to Title IX, treating sexual orientation and gender identity as forms of sex discrimination. Three years later, it incorporated that interpretation into formal regulations.
But homosexuality and transgender identity raise fundamentally different questions under a law designed to prohibit sex discrimination. Homosexuality depends on the reality of sex. A gay male is attracted to males; a gay female is attracted to females. Protecting gay people from discrimination requires no redefinition of male or female.
The question becomes more complicated when gender identity is used to decide who belongs in those categories. If identifying as female means a male student must be treated as female for every Title IX purpose, the law’s original sex-based protections become difficult to maintain. This includes sports and sex-separated facilities. Title IX was a landmark achievement for women precisely because sex sometimes matters.
Medical transition does not erase every relevant sex difference. Male puberty produces physical advantages that matter in sports, for example. Questions about bathrooms and locker rooms also involve privacy and safety, two reasons sex-separated facilities exist in the first place. This does not mean that transgender Americans should have no civil-rights protections. Congress can prohibit discrimination based on gender identity in employment, housing, or other areas without declaring that gender identity and sex must be treated as interchangeable in every situation.
Part of the problem is that homosexuality, transgender identity, and “queer” politics have been folded into the LGBTQ initialism despite being different things. Homosexuality is a sexual orientation. Transgender identity concerns a person’s relationship to sex and gender. Queer theory, meanwhile, comes from an intellectual tradition that seeks to challenge categories and social norms it regards as oppressive. Influential strands of queer theory connect that project to criticism of capitalism and established ideas about sex and gender.
Of course, not every transgender person or every person who calls himself queer is an anti-capitalist radical. And yes, some gay people are exactly that. But gay Americans should not be expected to sign on to that political project simply because other causes have been bundled together under a single initialism. It is time to unbundle them.
That brings us back to the Obama administration’s 2010 approach to Title IX, which offers a useful lesson. Its message to a feminine boy who is gay was simple: you do not have to behave the way boys are expected to behave to be one. There is nothing contradictory about being male, feminine, and attracted to other males.
Gay and transgender Americans can defend one another against cruelty and unfair discrimination without insisting that their legal interests are identical. Congress should consider sexual orientation and gender identity protections separately, and spell out how they interact with legitimate sex-based protections. That approach would be far more democratic. It would also be more rational than asking every new administration to redefine the word “sex”.
