Joint Letter To President Biden Opposing Reinterpretation of Title IX 7-27-2022

July 27, 2022
President Joseph R. Biden, Jr.

The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear Mr. President,
We write to you on behalf of the girls, women, and children in our states who will be impacted by the U.S.
Department of Education’s (DOEd) and U.S. Department of Agriculture’s (USDA) proposed rule and
policy changes with regard to the interpretation of Title IX.
Through both departments, your Administration proposed changes that misunderstand the purpose of Title
IX, which was to prevent discrimination “on the basis of sex” in education programs, including activities
such as athletic competitions. At the time of its passage 50 years ago, Title IX was intended to provide
equal opportunity for biological females in the classroom and on the playing field. It created an avenue for
so many young American girls to compete and achieve, experience the thrill of victory and learn the lessons
of defeat, and open the door to scholarships and other paths towards greater opportunity.
Over the past two years, we have heard calls from many in our society to “trust the science” with regards
to the COVID-19 pandemic. We ask your Administration to trust the science on human biology; realize
that there are real, wonderful biological differences between women and men; understand that those
differences impact us in many ways—some subtle, some profound; and recognize that athletic competition
is one of the arenas in which these differences are the most striking. A strong majority of Americans
recognize this reality with 62% of Americans responding that students should “play on teams that match
birth gender” according to a 2021 Gallup poll.
Nevertheless, your Administration has continued to push misguided reinterpretations of Title IX that hurt
girls, women, and all children across our country.
First, your USDA announced a purported “policy update” that now requires state and local agencies,
program operators, and sponsors that receive funds from USDA for Food and Nutrition Services to
investigate allegations of discrimination based on gender identity or sexual orientation. This change will
have drastic impacts on the interpretation of Title IX for the purposes of the federal government’s National
School Lunch Program as well as other programs administered by the USDA under the Supplemental
Nutrition Assistance Program.
Shortly after the release of the USDA policy update, DOEd announced proposed rule changes that would
also include sexual orientation and gender identity as protected classes under Title IX. We ask your
July 27, 2022
Page 2 of 3
Administration to immediately withdraw this USDA policy update and amend DOEd’s proposed rule
accordingly.
As Republican Attorneys General recently wrote to you, “[B]y vastly expanding the concept of
‘discrimination on the basis of sex’ to include gender identity and sexual orientation, the [USDA] Guidance
does much more than offer direction. It imposes new—and unlawful—regulatory measures on state
agencies and operators receiving federal financial assistance from the USDA.”
During the ongoing national state of emergency for the COVID-19 pandemic, USDA extended the National
School Lunch Program to all school age children. Before the pandemic, more than half of America’s
children were eligible for these dollars according to the National Center for Education Statistics. To be
clear, your Administration would take lunch money away from our kids and grandkids in pursuit of a radical
agenda that has no basis in science and is not supported by the vast majority of the American people.
The USDA’s policy update was also announced in a manner that ignores the Administrative Procedures
Act (APA). Under the APA, the public must be given notice and afforded the opportunity to comment
when a government agency makes substantive new rules or policies or makes substantive changes to
existing rules and policies. Though the USDA attempted to avoid this requirement by labeling its change
as “guidance,” and subsequently hiding the change in an old proposed regulation recycled to avoid the
APA, this rule change would have far-reaching impacts on students in many states across the country.
Meanwhile, DOEd’s proposed rule change would have far-reaching implications across K-12 and collegiate
institutions. By expanding Title IX to include gender identity and sexual orientation, your Administration
puts girls and women of all ages at risk. The DOEd rule would force any institution that receives federal
financial aid to allow biological males to access women’s and girls’ locker rooms, bathrooms, and dorms,
depriving them of privacy and safety at school. The rule ensures that a far-left ideology on gender will be
taught in schools nationwide. And finally, while DOEd states that it “will engage in a separate rulemaking
to address Title IX's application to athletics,” the policy changes your Administration has already put
forward leave us with no doubt that the Department intends to eliminate fairness in girls’ sports, too.
Both the USDA and DOEd based their changes on a misguided interpretation of the U.S. Supreme Court’s
Bostock decision, which specifically pertained only to enforcement of Title VII, which covers employment
discrimination. The Court’s decision in that case explicitly did not apply to “other federal or state laws that
prohibit sex discrimination,” such as Title IX. As such, these changes should be rejected based on this
unwarranted interpretation of Bostock.
If your Administration chooses to move forward with these reinterpretations of Title IX, Bostock, and basic
human biology, our states will have no choice but to pursue avenues to redress any harm that is done to our
children as a result. We trust that you will give attention to the concerns we have outlined and look forward
to an expedient resolution that will keep food in the mouths of our children and fairness on the playing
field.
Sincerely,
Governor Kristi Noem Governor Doug Ducey Governor Asa Hutchinson

State of South Dakota State of Arizona State of Arkansas
July 27, 2022
Page 3 of 3
Governor Brian Kemp Governor Brad Little Governor Kim Reynolds

State of Georgia State of Idaho State of Iowa
Governor Tate Reeves Governor Mike Parson Governor Greg Gianforte

State of Mississippi State of Missouri State of Montana
Governor Pete Ricketts Governor Kevin Stitt Governor Bill Lee

State of Nebraska State of Oklahoma State of Tennessee
Governor Henry McMaster Governor Glenn Youngkin Governor Mark Gordon

State of South Carolina Commonwealth of Virginia State of Wyoming

Joint Letter To President Biden Opposing Reinterpretation of Title IX 7-27-2022

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July 27, 2022

President Joseph R. Biden, Jr.

Dear Mr. President,

Governor Kristi Noem Governor Doug Ducey Governor Asa Hutchinson

Governor Brian Kemp Governor Brad Little Governor Kim Reynolds

Governor Tate Reeves Governor Mike Parson Governor Greg Gianforte

Governor Pete Ricketts Governor Kevin Stitt Governor Bill Lee

Governor Henry McMaster Governor Glenn Youngkin Governor Mark Gordon

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