Who Gets to Decide?

I know this might sound a bit academic, but it’s important to understand the legal foundation behind today’s ongoing debate about the rights of transgender students in education.

You’ve probably heard people mention “Title IX,” but what exactly is it? Title IX is a law passed by Congress in 1972. It’s short and powerful, consisting of just one sentence tucked into the Education Amendments of that year. It says that no person in the U.S. can be discriminated against “on the basis of sex” in any education program that receives federal funding.

The operative word here is “sex.” And in recent years, that word has become a political lightning rod. Republicans have turned it into a cultural talking point, asking questions like, “What is a woman?” They don’t care about the answer; they simply wish to provoke.

Here’s where things get complicated. The original Title IX law was vague, so it needed interpretation. Over the decades, the Department of Education wrote regulations to explain how Title IX should work in real life. They defined what counts as discrimination, how schools should respond, and who is protected. These regulations carry the force of law, and for a long time, courts gave agencies like the Department of Education considerable leeway. This leeway conforms to a legal principle known as deference. It meant courts generally trusted agencies to interpret vague laws reasonably, based on their expertise. In other words, let the experts decide how to interpret laws and write the regulations.

That’s how the Biden administration was able to update the Title IX regulations to include protections for students based on gender identity. They interpreted “sex” to include “sexual identity.” This move outraged many Republicans, but it followed the legal tradition of agencies shaping regulations around evolving social norms. By the way, if you read page 1270 of the regulations, you’ll see that transgender youth in sports is an exception; that men playing in women’s sports is not supported by Title IX.

Getting back to the concept of deference, this system wasn’t perfect, but it offered flexibility. If an agency went too far in interpreting a law, someone could sue, and courts would rein in the regulations. But for the most part, agencies had room to adapt as society changed. And life was good.

That flexibility may now be gone.

In a recent decision, the Supreme Court overturned something called Chevron deference. From now on, judges, not agency experts, will have the final word on how laws like Title IX are interpreted. Some people welcome this change, seeing it as a way to stop agencies from stretching laws beyond their original meaning. But it also means judges, not public policy experts, will decide what protections students receive, including whether gender identity counts as part of “sex.”

So, where does that leave us?

The ebb and flow of cultural tides will still shape policy, but the gatekeepers have changed. Instead of unelected agency officials crafting regulations based on expertise and public input, unelected federal judges will now hold the power to approve or strike down those rules based on their own reading of the law. And because judges are appointed by the president and confirmed by the Senate for life, this shift quietly hands even more long-term power to the president.

It’s a fundamental change in how laws are interpreted and who gets to decide what those laws mean. Before Chevron was overturned, citizens could challenge regulations through public comment or litigation, and agencies had room to adjust in accordance with the will of the people. Now, those decisions rest almost entirely in the hands of unelected federal judges whose rulings are nearly impossible to appeal.

The bottom line is this: Title IX may be redefined in ways that remove protections and reverse decades of civil rights progress. And this time, our ability to respond will be limited, not by the public will, but by the permanence of unelected judges with lifetime appointments.

If we care about preserving equal rights in education, we can’t afford to sit back. Pay attention. Speak out. And get involved as if your freedoms depend on it. Because they do.