Title IX is one of the most celebrated laws to emerge from the women’s movement in the past half century. Many books have been written lauding this iconic law for creating more opportunities for girls and women, particularly in sports. This is not such a book.

Echoing refrains of “boys left behind” and “the end of men,” R. Shep Melnick begins with the premise that discrimination against women is no longer of urgent concern. From there, he elaborates two overarching problems with Title IX’s transformation from a 37-word ban on sex discrimination in federally funded schools to its modern regulatory incarnation. The first is with the substance of Title IX’s commands, the other with the process by which Title IX evolved. Melnick rejects the meanings ascribed to Title IX through the interplay between courts and the federal enforcement agency—a process he calls “leapfrogging”—in three areas: athletics, sexual assault, and the rights of transgender students.

Beginning with athletics, Melnick criticizes a three-part test announced in a 1979 guidance memo issued by the Office for Civil Rights (OCR). The heart of his critique is that the test does not account for men’s greater share of athletic interest, inflating the opportunities due women and resulting in bureaucratic bean counting and cuts to men’s sports. This critique has been in circulation since the 1990s, when it was rejected in a test case against Brown University, and has been countered by supporters contending that interest is shaped by opportunity. So far, courts have sided with the test’s supporters. Melnick correctly points out that this is a bolder measure of nondiscrimination than that of other Civil Rights laws, but ignores the legal scholarship defending this departure. His argument, long hailed by groups like the Independent Women’s Forum, a source he repeatedly cites, may yet find a receptive audience in an increasingly conservative Supreme Court, but it breaks no new ground in the dialogue surrounding Title IX. Melnick highlights the opportunity costs of so much emphasis on athletics (and rightly so), but neglects the costs that this model places on exploited male athletes, and the economic structures—wholly apart from Title IX—that have made this model so entrenched.

Turning to campus sexual assault, the author sides with the advocacy groups and academics contending that the Obama OCR went too far in protecting complainants at the expense of accused students’ due-process rights. This, too, is a well-worn path. Melnick gives scant attention to arguments and sources on the other side of this firestorm, with no acknowledgment of the dismal record of university responses to sexual assault in the recent past. For example, he credits Janet Halley’s criticism of training materials bolstering victim credibility, but ignores research suggesting that survivor credibility is systematically discounted. He quotes select aggrieved administrators, but omits expressions of support from others. Much is made of First Amendment threats to faculty speech, but the vast majority of harassment allegations against faculty involve physical touching and do not implicate academic freedom. Melnick’s legal analysis faulting the OCR for imposing more onerous obligations on institutions than required under Supreme Court precedent did not pass muster with this legal scholar. (The Court’s reasoning was tailored to private lawsuits seeking damages and left room for the OCR to impose greater institutional responsibility).

Where Melnick departs from other critics is in his (startling) skepticism that sexual harassment and assault count as sex discrimination at all. He resists even the foundational Supreme Court ruling that hostile environment harassment is a form of discrimination. Although he correctly points out that courts, especially in early cases, undertheorized the justifications for treating sexual harassment as sex discrimination, that does not mean that justifications do not exist. Judicial opacity is hardly unique to harassment law, and decades of feminist legal scholarship have done much to fill the void. Several legal errors (e.g., the statement that it is “enough to show that some sort of sexual conduct or language was involved,” p.163, and a discussion of unwelcomeness that ignores plaintiffs’ burden to demonstrate unwelcomeness by their conduct) add to an exaggerated depiction of the law’s absurdity. Melnick dismisses feminist claims that workplace harassment law (which is less onerous than Title IX) has proven insufficient to reduce the actual incidence of sexual harassment. But the lack of evidence of effectiveness of employer antiharassment policies, punctuated by the many credible accounts of harassment from #metoo, leave room for doubt.

Melnick next targets the use of Title IX to require schools to permit transgender students access to sex-separate facilities matching their gender identity. He reads the statute narrowly, embracing a binary meaning of sex. However, his approach does not avoid interpretive difficulty in defining what it means to discriminate based on sex. He is undoubtedly correct that the 1972 Congress never intended to confer such rights, but much legal scholarship explains the paucity of hewing to the specific intent of the enacting legislature, particularly for antidiscrimination statutes. Melnick acknowledges one leading light in this literature (William Eskridge), but rejects his theory without engaging its core arguments. The narrowness of Melnick’s strict constructionism is reflected in his astonishing assertion that a landmark Supreme Court decision finding protection from retaliation implicit in Title IX stretched the statute beyond its plain words.

More than its substantive critique of Title IX law, the book’s greatest contribution is its analysis of how the OCR’s structure, and the political environment in which it operates, shaped the transformation of Title IX. Melnick points out that much Civil Rights literature overstates the judiciary’s importance and understates that of agencies. He offers several insights into the OCR’s outsized influence. As an agency with weak formal enforcement power (the termination of federal funding has always been a paper tiger), the OCR had to find other sources of power, including courts (deference); publicity (listing colleges under investigation); internal bureaucrats whose nest-feathering work is empowered by, and empowers, the OCR; settlement agreements that set precedent for nonparties; complaint-processing procedures that turn individual complaints into systemic investigations; and the rhetoric of rights, making it difficult to roll back expansive interpretations. The author is especially critical of OCR failure to follow notice and comment procedures in its recent initiatives, thereby evading public accountability.

Melnick claims that all this informal power makes the OCR aberrational, but these are common tools in the post–New Deal administrative state. What he calls leapfrogging, convoluted, and surprising tracks familiar terrain to administrative law scholars. Melnick’s criticism of the OCR aligns with broader, increasingly ascendant critiques of unaccountable agencies. But far from a lack of democratic accountability, the trajectory of OCR enforcement reveals an agency highly responsive to electoral politics. The OCR may have succeeded in operating below the public radar and dodging congressional oversight, as Melnick contends, but it has proven quick to respond to presidential politics (witness both the stepped-up enforcement under Barack Obama and the Trump administration reversals). Perhaps the OCR’s transformation of Title IX was not so much antidemocratic as dynamic—the product of competing social movements and national constituencies—with the law evolving to both shape and reflect contested norms about sex and gender.

The Transformation of Title IX is a thought-provoking argument about agency overreach into the heart of the gender culture wars. Melnick is certainly correct that the culture wars run hot around Title IX. Whether Title IX has needlessly inflamed them, as he suggests, or whether they are endemic to a country deeply divided in its views about gender is a question that this polemical book does not resolve.