A court has ruled against the Biden administration’s requirement that healthcare providers perform sex-change procedures, concluding that federal Title IX’s definition of sex discrimination does not include sexual orientation or gender identity. The case centered on two Texas physicians who filed a lawsuit against the U.S. Department of Health and Human Service’s Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, which interpreted Title IX’s definition of sex to include sexual orientation and gender identity. The physicians sued, arguing that the Notification forced them to provide services such as body-mutilating surgeries on people suffering from gender dysphoria, such as castration and double mastectomies, and that it violated federal administrative procedures.
In a decision released Friday, U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas, Amarillo Division, ruled that “Title IX operates in binary terms — male and female — when it references ‘on the basis of sex.’”
“If ‘on the basis of sex’ included ‘sexual orientation’ and ‘gender identity,’ as Defendants envision, Title IX and its regulations would be nonsensical,” Kacsmaryk ruled. “Title IX expressly allows sex distinctions and sometimes even requires them to promote equal opportunity.”
“Defendants’ reinterpretation of Title IX through the Notification imperils the very opportunities for women Title IX was designed to promote and protect — categorically forcing biological women to compete against biological men.”
Kacsmaryk also rejected the claim by the defendants that their reinterpretation of Title IX was justified in light of the 2020 U.S. Supreme Court v. Clayton County, in which the high court concluded that Title VII of the Civil Rights Act of 1964, which protects against employment discrimination, applies to sexual orientation and gender identity.
“Title IX is not Title VII,” Kacsmaryk continued. “The Court will not reflexively apply new Title VII precedent in the Title IX context.”
In May 2021, the HHS announced that it was going to interpret Title IX’s explicit prohibition on sex discrimination to include sexual orientation and gender identity. Under the new interpretation, the HHS Office for Civil Rights would enforce Section 1557 of the Affordable Care Act to protect “the civil rights of individuals who access or seek to access covered health programs or activities” and stop discrimination “against consumers on the basis of sexual orientation or gender identity.”
The proposed reinterpretation of Title IX was met with multiple lawsuits, with a three-judge panel of the United States Court of Appeals for the 5th Circuit unanimously deciding to block the implementation of the rule back in August.
Hand holding a paper sheet with transgender symbol and equal sign inside. | Getty
Imagine being a woman in 1972 when the Title IX Education Amendment was made law. Imagine the elation that girls and women felt when the federal government stepped in to ensure they could fairly compete in sports and other programs by banning sex discrimination.
Now imagine every gain in Title IX being wiped out by a pseudoscience that wants to erase women.
Today, an extremist Biden administration has no regard for the meaning of words. The President’s proposed radical changes to Title IX render the actual text meaningless and turn federally-funded schools into pronoun police and political propagandists for the LGBT lobby. Transgenderism has become this administration’s battering ram as it relentlessly tries to break down the walls of common sense.
Before I go any further, my nouns are factivist and myth-slayer. I can only be referred to in this way. To do otherwise would be semantic harassment.
Ridiculous, right? But this is exactly what’s happening with the Biden administration’s hostile takeover of Title IX. Thought control. Speech control. More government control. Who needs legislation when you have liberal interpretation?
Biden wants to allegedly create a world “free of discrimination” which, of course, requires a world that intensely discriminates in order to fulfill his LGBTQ+++ vision for America. We have to mangle our language, deny basic biology, promote bodily mutilation, and cheer on blatant inequality in the name of “progress.” While the Left obsesses over its emphasis on parts of speech, it dismisses the crucial importance of parts of our body.
We can no longer say what we know. We must repeat what we’re told.
The First Amendment is just part of the collateral damage in this aggressive “progressive” effort. The Civil Rights Act of 1964 never told Americans which parts of speech they have to use, or which words were acceptable, or which speech referencing race was legal. The Biden administration, on the contrary, wants federal policy to dictate personal beliefs. The “wrong” pronouns are now hate speech, and gender-specific sports (or any other programs) are unacceptably discriminatory. The solution? Forced speech and more discrimination.
In Wisconsin’s Kiel Area School District, a Title IX action was brought against three 8th grade boys for “mispronouning” a girl in their class. According to the school administration, the accused committed a crime: sexual harassment. They failed to call a single female “they” or “them”; instead, the boys used “her” and “she.” (Gasp!)
In Virginia, a popular high school French teacher Peter Vlaming was fired for using a so-called “transgender” student’s actual name instead of her “preferred pronouns.” The Virginia Supreme Court hasn’t issued its ruling yet. They ruled in favor of Loudoun County Public Schools teacher Tanner Cross who was immediately fired after speaking at a public school board meeting saying he “loved his students too much to call a boy a girl and a girl a boy.” It should be a no-brainer to rule the same for Vlaming.
When did confusion become a virtue and clarity a vice?
This indoctrination is happening in government-run schools across the country. Both students and teachers live in fear of violating rules that are unconstitutional, anti-science, and demand a new kind of discrimination that elevates all things LGBTQ above everything else. I have two sons and two daughters. My girls deserve an even playing field in sports, not one taken over by guys who “identify” as girls. Because we know how well that goes (here, here, here, and here)!
We must fight for females’ equality against the LGBT patriarchy. I’m honored to join an incredible coalition of over 140 organizations nationwide that are doing just that. Every American should. This Title IX takeover has everything to do with increasing enmity among us all, not increasing equality. I refuse to bow to an ideology that wants to erase women, punish free speech, and obliterate objective truths.
The acceptance of transgenderism as a ‘social good’ requires the rejection of basic biology, common sense, and compassion. As one of those informed and involved Loudoun County parents branded “terrorists” by the DOJ, I care about the harmful ideological climate change in our schools. And it gets worse by the day.
There’s nothing loving about promoting a lie. Everyone deserves to be treated with dignity. And that starts with being told the truth.
Candidate Joe Biden once strangely proclaimed: “We choose truth over facts.” President Biden clearly chooses neither. He also said: “We choose unity over division. We choose science over fiction.” This Title IX takeover is nothing but widespread division and activist fiction.
Let your voice be heard. Learn more about the major areas of concern with Biden’s new and unimproved Title IX here. You can also let the federal government know your opinions about the proposed Title IX policy changes here before September 12th.
I’m a factivist. Context brings clarity. Clarity brings comprehension. I want to slay the myth that there was any ambiguity about the text of Title IX Education Amendment of 1972.
The original Title IX text repeatedly uses the words “both sexes,” and “boys” and “girls,” “father-daughter,” “mother-son,” and refers to “the other sex” making things quite binary. In 1964, there was no confusion about what sex meant. In 2019, Chief Justice Roberts and Justice Gorsuch decided in Bostock vs Clayton County to redefine the word “sex” (from the Civil Rights Act of 1964’s Title VII Amendment) to include “sexual orientation” and “gender identity.” They apparently self-identified as legislators. In the process, they and the four liberal justices enabled this supremely destructive attack on reality.
Biden has directed the Department of Education, the Department of Health and Human Services and every other federal agency to follow suit.
Leftists understand that deliberate confusion is power. Miseducation is power. But Americans need to understand there is a difference between being empowered and being fooled by those in power.
Ryan Bomberger is the Chief Creative Officer and co-founder of The Radiance Foundation. He is happily married to his best friend, Bethany, who is the Executive Director of Radiance. They are adoptive parents with four awesome kiddos. Ryan is an Emmy Award-winning creative professional, factivist, international public speaker and author of NOT EQUAL: CIVIL RIGHTS GONE WRONG. He loves illuminating that every human life has purpose.
Forcing children to sleep and undress next to kids of the opposite sex effectively puts up a ‘Christian kids need not apply’ sign on public recreation activities.
This spring I got an email from 4-H, a club I participated in as a child, effectively communicating that my Christian family need not apply to summer camps and other activities sponsored by the quasi-public organization. (County governments often sponsor 4-H activities.) This email was signed by a 4-H staffer who put pronouns in his signature and told me, “Youth are assigned cabins based on gender indicated on the 4-H camp application and registration,”suggesting children were roomed by gender identity rather than sex.
Naturally, I was concerned that my tween daughter and son might be roomed overnight with an emotionally disturbed camper or counselor if I enrolled them in this camp. Based on numerous reported stories, I know that if this did happen, the camp likely would not even tell me, so I’d only hear about it after the fact from my kids. When I emailed again to confirm I was understanding this correctly, the staffer refused to answer definitively whether campers could be placed in private facilities such as bedrooms and bathrooms with transgender individuals. That’s an unacceptable risk to children’s well-being, as well as a lawsuit waiting to happen.
Given how socially contagious LGBT identification is, it’s not just about transgender issue but also exposing children to sexual information and pressures far earlier than they are ready. Hand in hand with grouping children by gender identity is forcing conversations about what that means, which pushes children earlier and earlier to declare and investigate sexual behaviors. This is destabilizing to their identity, not “affirming” it.
Given 4-H national’s commitment to the toxic “diversity, equity, inclusion” ideology, the fact that my Christian kids now cannot equally access lots of their programming due to 4-H’s choice to sexualize their activities was no surprise. But I still wanted to see in writing that my red county in my red state was indeed giving tax breaks and other government privileges to an organization that might room children overnight with troubled people of the opposite sex against their parents’ will. The answer is yes. (Thanks, Republicans!)
Everywhere We Go, Someone Wants to Talk Dirty to My Kids on the Public Dime
It’s not just places kids get naked. It’s everywhere. I cannot take my children to the public library anymore, either, because the shelves are so full of pornographic and hostile books that it’s not a safe place for them. There, too, self-righteous LGBT activism has resulted in effectively banning my children from yet another public place and weaponizing my own tax dollars against my children’s safety. The shelves and displays in our library are full of books telling my children lies such as that “men can become women” and “some boys have girl brains” and “gender is a social construct.” I’m happy to have these conversations with my children when they are ready, but I know my six-year-old, and he is not ready. My eight-year-old is not ready, and neither are my 10- and 11-year-old, frankly. It’s grotesque and evil to put books at their eye level that deliberately aim to confuse them about something so deep and important. To do this is to usurp not only my parental wisdom and authority over my own children but to usurp my children’s right to an innocent, emotionally secure childhood.
It Won’t Happen, And When It Does, You Bigots Will Deserve It
These all prove that rapidly rewriting American laws to ignore sexual differences has effectively banned Christian families from equal participation in public facilities and activities. It’s not just Christian families, it’s any family that thinks it imprudent to lodge their sometimes-undressed daughters with an emotionally traumatized male at summer camp or to obtain swimming lessons at a public pool. This all descends from the massive bait and switch inherent to the LGBT policy agenda. We were told it was only about extending government sanction to what consenting adults do behind closed doors. We were told it was about allowing people to visit loved ones in hospice and inherit without legal difficulties. It wasn’t going to affect our families, remember?
Anyone who raised concerns about how calling sexual activities that cannot create a family “marriage” would affect children, faith, and families was smeared as a know-nothing bigot. Anyone who wanted to logically think through how legally equating men to women in the social keystone of marriage would have a domino effect on many other laws and social arrangements was also smeared as a hateful bigot, all the way up to highly intelligent and reasoned Supreme Court dissents. It’s the same toxic play we’ve seen work ever since: Anyone with a contrary opinion or even unanswered questions is not engaged, but simply smeared.
Men and Women Are Different, And That Matters
The fact is that equating homosexual relationships to marriage very often requires explaining adult sexual behaviors to tiny children. Erasing the differences between the sexes in marriage also leads irrevocably to erasing the differences between the sexes everywhere else, from bathrooms to pools to summer camps. Breaking down all sexual differences also results in discrimination against religious expressions that acknowledge men and women are different, and these differences are divinely ordered.
Thus upending the natural sexual order has resulted, not in the falsely promised “equality,” but in simply flipping which social system will rule. For what we were prevented from discussing or even seeing was the fact that these two regimes — treating the sexes as different and complementary versus seeing them as neutered and interchangeable — are mutually exclusive.
You cannot have both transgender swimmers and single-sex sports competition. You cannot have both the sexual profligacy pushed by the dominant LGBT activist class and protect children from sexualized childhoods and predatory social situations. You must have one or the other.
In the absence of clarity about this reality combined with effective use of power on reality’s behalf, abrasive, antisocial activists have fully taken over every public space. Any further sorties are merely tinkering around the edges of their all-encompassing kingdom.
Children Are No Longer a Protected Class, They’re Targets for Groomers
So instead of achieving equality, what we have really achieved is the subversion of children’s developmental needs to adult desires. Instead of equality, we have replaced legal preferences for the only sexual arrangement that produces the most stable future citizens — lifelong married biological parents — with legal preferences for sexual arrangements that harm children and send religious folk to the back of the public bus.
Therefore, all who believe in protecting children from marinating in sexual imagery and ideas everywhere they go are the new underclass in our political regime, and in many cases no Republican officials will even recognize our legitimate concerns, let alone fight for our daughters. That’s certainly the case here in Indiana, where Republican Gov. Eric Holcomb won’t sign bare-minimum legislation protecting girls’ sports and nobody is even talking about making our libraries, camps, and pools safe for families (even though that’s one of the few value-added policies a state like Indiana can offer its citizens).
Many of our major public and private institutions are making the public square completely hostile to a happy childhood and faith. Their “solution” to alleged bigotry was institutionalizing actual bigotry. “Our kind” aren’t wanted in “their” territory, you see. Maybe we would be allowed to have separate pools and summer camps funded by our own money, as long as the ACLU doesn’t sue them out of existence like they do Christian hospitals and foster care agencies.
What we weren’t told was that letting homosexuals out of the closet would require stuffing all the children and Christians inside.
Joy Pullmann is executive editor of The Federalist, a happy wife, and the mother of six children. Sign up here to get early access to her next ebook, “101 Strategies For Living Well Amid Inflation.” Her bestselling ebook is “Classic Books for Young Children.” Mrs. Pullmann identifies as native American and gender natural. She is also the author of “The Education Invasion: How Common Core Fights Parents for Control of American Kids,” from Encounter Books. In 2013-14 she won a Robert Novak journalism fellowship for in-depth reporting on Common Core national education mandates. Joy is a grateful graduate of the Hillsdale College honors and journalism programs.
President Joe Biden’s administration is planning to roll back current Title IX regulations, which experts argue will revoke protections for both the accuser and the accused in sexual assault cases and threaten freedom of speech at federally funded schools.
“It ultimately returns Title IX back to a guilty until proven innocent standard,” Sarah Perry, a senior legal fellow for the Heritage Foundation said.
“Any changes could put students’ free speech rights at risk and will only exacerbate the problem of self-censorship that has been plaguing our campuses,” Speech First executive director Cherise Trump said.
President Joe Biden’s Department of Education (DOE) is planning to roll back Title IX due process regulations implemented by former President Donald Trump’s administration, which experts argue will revoke protections for both the accuser and the accused in sexual assault cases and threaten freedom of speech.
The Office of Civil Rights (OCR) is planning to rewrite the rules outlined in Title IX of the 1972 Education Amendments that set sexual harassment standards at federally funded schools. The Biden administration’s changes wouldreverse 2020 due process protections that require federal K-12 and higher education schools to investigate Title IX violations in a fair and unbiased manner, which includes the right to be represented by counsel, the presumption of innocence, the ability to cross examine and to introduce witnesses, experts told The Daily Caller News Foundation.
Proponents of the current standards argue they fixed problems created by former President Barack Obama’s Education Department; before the 2020 changes, instances of sexual assault and harassment were only recognized as instances of unlawful sex discrimination through regulations that were not legally binding. However, under the current standards, school districts, colleges and universities have a legal obligation to respond to such cases in a fair and unbiased manner.
Under the Trump administration’s standards, instances of sexual assault at federal schools are handled more like “quasi-judicial proceedings,” Sarah Perry, a senior legal fellow for the Heritage Foundation, told TheDCNF.
“It ultimately returns Title IX back to a guilty until proven innocent standard … as opposed to leaving it to one Title IX investigator to determine who was right and who was wrong, in a ‘he said, she said’ proceeding,” Perry said.
A student walks near Royce Hall on the campus of UCLA on April 23, 2012 in Los Angeles, California. (Photo by Kevork Djansezian/Getty Images)
Speech First executive director Cherise Trump told TheDCNF that the rules changes will likely be weaponized against constitutionally protected speech, which could make students subject to “harassment” for their personal or political stances.
The current Title IX regulations that were implemented in 2020 are consistent with a Supreme Court precedent known as the Davis Standard, which concluded that “student-on-student harassment must be so severe, pervasive, and objectively offensive that it can be said to deprive its victims of access to a school’s educational programs or activities,” Trump explained. (RELATED: Republicans Say They Have Proof FBI Targeted Concerned Parents, Despite Garland Denials)
“This is a pretty high threshold that protects students from being accused of harassment for simply voicing their opinions and possibly offending someone with their ideas,” Trump said. In response, universities frequently manipulate Title IX language to fit a more “broad-sweeping definition” such as “severe, pervasive, and objectively offensive…” to “severe, pervasive, or objectively offensive,” she explained.
The small change in wording allows school administrators to restrict and punish speech they believe is “offensive,” “unwanted” or “problematic,” but would not be considered harassment under current Title IX rules, she said.
“Previously, the process for adjudicating serious harassment allegations on campus had been plagued by bias, vagueness, and overreach,” Trump added. “Any changes could put students’ free speech rights at risk and will only exacerbate the problem of self-censorship that has been plaguing our campuses.”
A Republican coalition of 15 state attorneys general have expressed legal concern about the DOE’s plans to roll back the “historic” move that codified sexual harassment regulations under Title IX into law, arguing the previous standards were unworkable and unfair.
“Hundreds of successful lawsuits against schools for denying basic due process and widespread criticism from across the ideological spectrum arose from the Obama-era rules“, the statement said. “The rules also resulted in a disproportionate number of expulsions and scholarship losses for Black male students.”
The Department of Education did not respond to TheDCNF’s request for comment.
The Department of Education is expected to roll out new Title IX rules that will expand the definition of sex to include gender identity.
“What we saw with Lia Thomas at the NCAA Championships will now be happening at schools and colleges across the country,” Heritage Foundation legal fellow Sarah Perry said.
Through the Title IX rule change, the Biden administration aims “to change culture, not just discriminatory treatment,” said Max Eden, a research fellow for the American Enterprise Institute.
President Joe Biden’s Department of Education (DOE) is expected to roll out new Title IX rules that will expand the definition of sex to include gender identity, which experts say will have legal and cultural implications for all aspects of American education.
The Office of Civil Rights (OCR) is planning to take an unprecedented step to expand the definition of sex to include gender identity under Title IX of the 1972 Education Amendments, a key civil righs law which ensures no person is discriminated against under any federal education program or activity “on the basis of sex.” The rule change will require every sex-separated space, program, building, bathroom and locker room to accommodate individuals “who may feel as though they are women, even though biologically, they are men,” Sarah Perry, a senior legal fellow for The Heritage Foundation, told The Daily Caller News Foundation.
“What we saw with Lia Thomas at the NCAA Championships will now be happening at schools and colleges across the country if they receive so much as $1 of federal funding from the Department of Education,” Perry said.
Gender Is Not an Immutable Characteristic
The OCR has already indicated it will enforce Title IX to include discrimination based on sexual orientation and gender identity in what it says is consistent with the 2020 Supreme Court case, Bostock v. Clayton County, Georgia, which extended workplace sexual harassment and discrimination protections to LGBTQ employees. The Biden administration is using the Bostock ruling as its basis for all other modifications of civil rights law, Perry said. Although, the decision specifically noted that the Supreme Court did not “purport to address bathrooms, locker rooms, or anything else of the kind.” The high court has relied on the concept of immutability, which encompasses characteristics like race, national origin and sex, for decades, Perry explained. But now, the Biden administration is attempting to “shoehorn” an expansive definition of sex into Title IX, which she said was specifically drafted to protect biological women and girls, giving them all the rights that men already had.
“What this does is ultimately open up what has been long standing, successful application of federal civil rights law to individuals who happen to feel like a woman or feel like a man at any given time or at any given space,” she said. “We have never before in American civil rights law offered federal legal protections for an individual based on how they FEEL subjectively and internally.”
Once gender, which is not an immutable characteristic, becomes a protected class the same as race, “you’re running up against the freedom of individuals to say … ‘I don’t agree that you are a woman if you were born a biological male,’” Jonathan Butcher, an education fellow at The Heritage Foundation, told TheDCNF. “If you express that opinion, you would be violating federal law.”
Limits To Free Speech
Perry described the rule change as an unprecedented and illegal expansion of the law that would implicate free speech by forcing individuals and institutions to provide biological men who identity as female with access to women’s restrooms, sports teams and schools. By expanding civil rights law, the Biden administration is muzzling “individuals who believe sex is immutable and biological … it shuts those people up, utterly silencing dissent in the education context,” Perry said.
Max Eden, a research fellow for the American Enterprise Institute, said officials in the Biden administration aim “to change culture, not just discriminatory treatment.” Under the new rules, any student will now be able to level an accusation of gender discrimination against their school, forcing institutions to become gender affirming, he said.
Speaker Pelosi held an event to celebrate women athletes to honor the 50th Anniversary of the passage of Title IX. (Anna Moneymaker/Getty Images)
Conflicts With State Law
States have enacted legislation that bars biologically male students from competing in women’s sports, restricts doctors’ abilities to provide transition services to minors and prohibits certain discussions of sexual orientation and gender identity in elementary classrooms. The conflicting legislation will set up a “battle royale” in the federal court system to test whether the regulation of a federal agency is more powerful than a democratically passed and enacted state law, Perry said. A coalition of 15 Republican-led states have already signaled that they will take legal action if the OCR’s rewritten rules conflict with existing state law.
If the Biden administration does formally achieve its Title IX goals, it “begs the question whether or not they will go beyond the issues of bathrooms and sports teams and get to the real crux of the issue of coercing public schools to teach and operate that this ideology is true,” Eden said.
President Joe Biden’s Department of Education is expected to finalize changes to Title IX rules in the coming weeks to expand the definition of discrimination beyond sex to also include sexual orientation and gender identity. The rule changes will have seismic implications, setting off not just state versus federal showdowns over state laws barring biological males from competing in women’s sports, but also how college campuses handle sexual harassment charges and due process.
While these changes have been anticipated since Biden took office, last week the Washington Post reported the first look at a draft copy of the proposed language, which includes this key sentence:
Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity.
The Post also reported that Biden’s DOE plans to rewrite rules established by President Donald Trump’s DOE, under former Education Secretary Betsy DeVos, that required schools to recognize the presumption of innocence for those accused of sexual harassment or assault. Some of the DeVos era due process protections that may be targeted or revoked entirely include the right to cross-examination for both the accuser and the accused, as well as the right to full access to all evidence collected by schools in sexual harassment investigations and the opportunity to respond to that evidence.
Candice Jackson, who was Department of Education deputy general counsel during the Trump administration, told The Federalist that these two major changes, to both the definition of discrimination and the definition of what constitutes sexual harassment, will overlap in severely detrimental ways.
“It’s going to affect people’s ability on campus to talk about or debate about single-sex spaces on campus like women’s sports,” Jackson said. “All of a sudden, you’re in a position where even having a discussion or even trying to advocate for keeping women’s sports single-sex could get you called a harasser.”
Jackson said loosening the definition of sexual harassment moves beyond handling alleged rapes and into the realm of academic freedom.
“You’re now talking about the ability on campus to have important discussions on what gender identity discrimination means,” she said.
But as the rules are finalized, the return of campus kangaroo courts is likely to be overshadowed by the current culture war spotlight on women’s sports. With biological males winning national women’s titles, states that have recently passed laws protecting women from unfair male competition are likely to face the pressure of losing their Title IX funding. Jackson said she thinks this time will be different. She expects states to refuse to back down, as they have on other issues where the federal government wields its funding hammer.
“There is enough disagreement at a fundamental level about whether or not it is now ever OK to provide separate comparable services and activities for boys and girls and men and women that this is this is going to be a bit of a showdown, probably needing to be revisited by the Supreme Court,” she said.
Madeline Osburn is managing editor at The Federalist. Contact her at madeline@thefederalist.com or follow her on Twitter.
A sign outside a classroom taken in 2016. | REUTERS/Tami Chappell
Just a week after the U.S. Department of Education concluded that the protections of Title IX extend to LGBT students, the Biden administration has sent a letter to schools across the nation informing them of the policy change and providing examples of actions that now constitute as discrimination.
The “Dear Educator” letter was published Wednesday, the 49th anniversary of the implementation of Title IX, which was created to provide equal opportunities for women and girls in education. Written by Acting Assistant Secretary for Civil Rights at the Department of Education, Suzanne Goldberg, the letter informs educators about the recently issued public notice by the Department of Education, announcing that “Title IX’s protection against sex discrimination encompasses discrimination based on sexual orientation and gender identity.”
The department made that determination based on the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which found that “it is impossible to discriminate against a person” because of their sexual orientation or gender identity “without discriminating against that individual based on sex.” In addition to the Bostock decision, Goldberg cited “the particular vulnerability of LGBTQI+ students and the often overwhelming challenges these students face in education compared to their peers” as a rationale for the new interpretation of Title IX.
“The U.S. Department of Education’s Office for Civil Rights works to ensure that Title IX’s mandate protects students in all aspects of their education, including recruitment, admissions, and counseling; financial assistance; athletics; protections from sex-based harassment, (sic) which encompasses sexual assault and other forms of sexual violence; treatment of pregnant and parenting students; discipline; equal access to classes and activities; and treatment of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) students,” Goldberg wrote.
Goldberg vowed that the “OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the department.” Additionally, a fact sheet about “Confronting Anti-LGBTQI+ Discrimination in Schools” accompanied the Dear Educator letter. The fact sheet provided examples of discrimination on the basis of sexual orientation and gender identity that the OCR could investigate.
Under one such example, “a transgender high school girl is stopped by the principal” on the way to use the girls’ bathroom. “The principal tells the student to use the boys’ restroom or nurse’s office because her school records identify her as ‘male.’” In other words, according to President Joe Biden’s Department of Education, refusing to allow a biological male who identifies as a girl to enter the girls’ bathroom constitutes discrimination under Title IX.
In that same scenario, the trans-identified male “joins her friends to try out for the girls’ cheerleading team and the coach turns her away from the tryouts simply because she is transgender.” Based on the Department of Education’s understanding of Title IX, it is considered discriminatory to require student athletes to compete on sports teams that correspond to their biological sex as opposed to their chosen gender identity.
In another scenario, “an elementary school student with intersex traits dresses in a gender neutral way, identifies as nonbinary, and uses they/them pronouns.” In this particular example, “the teacher tells the class that there are only boys and girls and anyone who thinks otherwise has something wrong with them.”
The characterization of this scenario, as an example of discrimination, illustrates that the Department of Education sees it as discriminatory to acknowledge the biological fact that there are two genders.
Even before the federal government implemented its new interpretation of Title IX, a teacher in Loudoun County, Virginia, was placed on leave for stating that he would not “affirm that a biological boy can be a girl and vice versa.” He was ultimately reinstated to his position by a judge, and the school district is appealing that decision.
Conservative groups quickly panned the Department of Education’s Dear Educator letter, elaborating on the new interpretation of Title IX. “It’s an unhappy anniversary for Title IX,”said Meridian Baldacci, policy and communications strategist at the Family Policy Institute in response to the letter.
“Today, the Biden administration single-handedly turned Title IX on its head to say that women are discriminating against men when they have concerns about men being called ‘women,’ using their locker rooms, competing on their sports teams, or taking away their championships and scholarship opportunities. That the Department of Education is demanding this in the name of ‘protecting’ students and stopping ‘discrimination’ is stunning. This move is misguided and antithetical to the purpose of Title IX,” she added.
This is not the first time that the federal government has attempted to force schools to allow biological males who identify as females to use women’s bathrooms and locker rooms. Toward the end of the Obama administration, where Biden served as vice president, the Department of Education and the Department of Justice issued a joint letter requiring schools to allow trans-identified students to use restrooms and locker rooms that correspond with their gender identity as opposed to their biological sex.
President Joe Biden’s new policy redefining sex puts doctors at risk, American Principles Project President Terry Schilling told the Daily Caller News Foundation Monday. The Biden administration announced Monday that it would reinterpret “sex” in the context of healthcare anti-discrimination laws to include “sexual orientation”and “gender identity,” reversing a Trump administration policy that defined “sex” as gender assigned at birth.
“Make no mistake,” Schilling said. “The policy announced by HHS today is not about ‘fix[ing] a broken bone’ or ‘screen[ing] for cancer risk.’ No American was being denied access to these treatments for identifying as ‘LGBTQ.’ Rather, this policy is really about forcing hospitals and medical professionals to adhere to leftist ideology regarding sexuality and gender—and in particular to provide sex-change procedures to all comers, including children.”
The Office for Civil Rights (OCR) will interpret Section 1557 and Title IX prohibitions on discrimination based on sex to include discrimination on the basis of sexual orientation and on the basis of gender identity, the Department of Health and Human Services announced in a memo released Monday.
“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination,” HHS Secretary Xavier Becerra said in a Monday statement.
“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”
APP President: Policy May Force Doctors To Violate Consciences Or Get Sued
Assistant Secretary for Health Dr. Rachel Levine also said in a statement that HHS seeks to “enhance the health and well-being of all Americans.‘
“All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said. “No one should be discriminated against when seeking medical services because of who they are.”
APP President Schilling told the Daily Caller News Foundation Monday that though Levine and Becerra paint the HHS move as one “all about lifesaving care for transgender people,” the HHS announcement is merely “a way for the federal government to use its full weight and coercion to do the most controversial aspects of the gender identity stuff, which is gender transitions for minors.’
“There’s not some rash across the country where gay people are going in to get their broken arm fixed and the doctor is like ‘Oh sorry, you’re gay. I’m not helping you,’” Schilling said. “We would know about those cases immediately.”
CHARLOTTE, NC – SEPTEMBER 06: Democratic presidential candidate, U.S. President Barack Obama (R) and Democratic vice presidential candidate, U.S. Vice President Joe Biden wave after accepting the nomination during the final day of the Democratic National Convention at Time Warner Cable Arena on September 6, 2012 in Charlotte, North Carolina. (Photo by Tom Pennington/Getty Images)
Schilling presented the DCNF with a hypothetical scenario in which parents take a child diagnosed with gender dysphoria to a doctor that does mastectomies. The doctor finds out that the child doesn’t have breast cancer, that the child is a 15-year-old girl who is gender dysphoric, Schilling suggested. If that doctor doesn’t perform the surgery, the parents can sue the doctor on civil rights grounds, Schilling said. He also noted that this scenario could play out similarly for doctors who have an issue prescribing puberty blockers to kids who wish to begin transitioning.
“Those doctors are also at risk,” Schilling said. “It’s basically forcing doctors to do off-label treatment for gender dysphoria, and it’s a total nightmare.”
The new policy reverses a June 2020 Trump era rule that had defined “sex” as gender assigned at birth and clarified that sex discrimination does not include abortion when it comes to health care and coverage. Former President Barack Obama’s administration had redefined sex discrimination in 2016 to include abortion and gender identity — defined as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”
Under the Trump era policy, HHS returned to the government’s interpretation of sex discrimination “according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.”
“HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress,” Roger Severino, former director of OCR, said in June 2020. “We are unwavering in our commitment to enforcing civil rights in healthcare.”
The Biden administration’s new interpretation will guide OCR in conducting investigations and processing complaints, an HHS press release said, but will not “itself determine the outcome in any particular case or set of facts.” HHS also noted that “OCR will comply with the Religious Freedom Restoration Act.”
HHS did not immediately respond to a request for comment from the DCNF.
Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience.
A three-judge federal appeals court panel has ruled in favor of an evangelical professor who was punished by Shawnee State University in Ohio for refusing to address a transgender student by the preferred pronoun. Reversing a district court’s dismissal of his lawsuit against university officials, the U.S. 6th Circuit Court of Appeals ruled that the allegations made by philosophy professor Nicholas Meriwether suggest the university may have violated the professor’s First Amendment rights.
The case has been remanded back to the lower court for “further proceedings consistent with this opinion.”
The district court had dismissed Meriwether’s claims related to free speech and religious protections, ruling that his way of addressing the student was not protected under the First Amendment.
“Traditionally, American universities have been beacons of intellectual diversity and academic freedom,”the 6th Circuit opinion written by Trump appointee Judge Amul Thapar states.
“They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse.”
The ruling was celebrated by the Alliance Defending Freedom, a legal nonprofit devoted to cases on free speech and religious freedom that has won several Supreme Court cases in the last decade.
“This case forced us to defend what used to be a common belief — that nobody should be forced to contradict their core beliefs just to keep their job,” ADF Vice President of Appellate Advocacy and Senior Counsel John Bursch said in a statement.
“We are very pleased that the 6th Circuit affirmed the constitutional right of public university professors to speak and lead discussions, even on hotly contested issues. The freedoms of speech and religion must be vigorously protected if universities are to remain places where ideas can be debated and learning can take place.”
In his lawsuit, the professor contended that the university violated his free speech rights by dictating how he should refer to students in his political philosophy class in 2018 to avoid offending a trans-identified student.
The transgender student got belligerent and threatened to see to it that Meriwether, a member of the Presbyterian Church of America, was fired. Meriwether feels it would violate his religious beliefs if he referred to a transgender student by biologically inaccurate pronouns and titles.
After a complaint was raised with the school administration, a superior advised Meriwether to refer to all students by their last names and eliminate all sex-based references in class.
Meriwether objected to the superior’s proposal and proposed a solution in which he would only refer to the transgender student by their last name while continuing to refer to other students with their proper titles and last names. Initially, Meriwether’s superior agreed to that arrangement.
But later, Meriwether was told that the student didn’t like being the only one in the class called by only their last name with no title. The student threatened to file a Title IX lawsuit. It was then that Meriwether was told that he would violate the university’s nondiscrimination policy if he did not either begin calling the transgender student by the preferred title or simply refer to all students by their last names only.
Meriwether was told that he could face a suspension or possible dismissal if he did not change the way he addressed the transgender student in the class.
As the student continued to complain, Meriwether faced a university Title IX investigation. In the summer of 2018, Meriwether was given a formal warning and accused of creating a “hostile environment” for the student. The warning was reflected in Meriwether’s personnel file.
“For starters, the Title IX investigator interviewed just four witnesses, including Meriwether and Doe,” the 6th Circuit ruling states. “She did not interview a single non-transgender student in any of Meriwether’s classes, nor did she ask Meriwether to recommend any potential witnesses. Indeed, except for Meriwether and Doe, not a single witness testified about any interactions between the two. Even so, the Title IX officer concluded that Meriwether ‘created a hostile environment.’”
“Under the university’s policies, a hostile environment exists only when ‘there is harassing conduct that limits, interferes with or denies educational benefits or opportunities, from both a subjective (the complainant’s) and an objective (reasonable person’s) viewpoint,’”the ruling continues.
“But the Title IX report does not explain why declining to use a student’s preferred pronouns constitutes harassment.”
Days after corporate media outlets said Joe Biden is “rolling back the culture war,” the president continued his war on biological sex and due process on Monday with the introduction of two executive orders that seek to dismantle Trump-era protections in the name of “advancing gender equity and equality”and promoting it as “a matter of human rights, justice, and fairness.”
Biden’s first order mandates the creation of a gender policy council, disguising issues such as promoting access to abortions and pushing gender- and race-driven agendas as a way to “advance gender equity and equality, with sensitivity to the experiences of those who suffer discrimination based on multiple factors, including membership in an underserved community.”
“We are very inclusive in our definition of gender,” council co-chair Jennifer Klein said in a White House briefing Monday. “We intend to address all sorts of discrimination and fight for equal rights for people, whether that’s LGBTQ+ people, women, girls, men.”
In addition to a commitment to fight “systemic bias and discrimination, including sexual harassment,” the council also plans to address women in the workforce, economic disparities including wage gaps, and “the caregiving needs of American families,” specifically examining “policies to advance equity for Black, indigenous and Latina women and girls of color.”
“It is, therefore, the policy of my Administration to establish and pursue a comprehensive approach to ensure that the Federal Government is working to advance equal rights and opportunities, regardless of gender or gender identity, in advancing domestic and foreign policy — including by promoting workplace diversity, fairness, and inclusion across the Federal workforce and military,” the order states.
In his second order, Biden instructs the Department of Education to review the Trump administration and former education secretary Betsy DeVos’s due process expansions on college campuses, which gave students accused of sexual misconduct a chance to receive a fair trial, investigation, and evaluation. The president hopes to reinstate at least some Obama-era policies that overhaul Title IX and potentially withhold or cut funding from schools that don’t comply with broader sexual harassment definitions and lowered evidence standards for victims, as he previously promised on the campaign trail.
“It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” the order states.
ABOUT THE AUTHOR:
Jordan Davidson is a staff writer at The Federalist. She graduated from Baylor University where she majored in political science and minored in journalism.
Selina Soule at a press conference in February 2020. | Picture from the Alliance Defending Freedom
District Court judge Robert Chatigny has ordered attorneys representing three high school girls that they must refer to the trans athletes on the other side of the case as “female,” an action which has alarmed many as demonstrative of partiality.
The case in question is a suit filed in February 2020 by the Alliance Defending Freedom (ADF) on behalf of three female high school athletes: Selina Soule, Alanna Smith, and Chelsea Mitchell; against the Connecticut Interscholastic Athletic Conference (CIAC). The CIAC policy allows individuals to compete in sports on the basis of their gender identity, meaning male-to-female transgender athletes compete against biological women. Connecticut is one of 17 states which adheres so extremely to the transgender ideology.
Before the suit, the ADF also filed a complaint with the Department of Education in June 2019. The situation also led to a petition in support of the students sponsored by LifeSiteNews which currently has almost 190,000 signatures.
National Review has summarized the situation that led to the suit as follows:
“The case centers on the participation of two transgender sprinters, Terry Miller and Andraya Yearwood, who have combined to win 15 girls indoor and outdoor championship events since 2017. The year prior to Miller and Yearwood’s participation, those titles were held by ten different girls. The three plaintiffs have competed directly against Miller and Yearwood and have lost to them in nearly every case.”
All three girls have spoken out emotionally about the personal impact the situation has had on them and others, saying that they “feel defeated before a race begins,” and are just asking for “a fair chance” for “every young woman who dreams of competing, of having her chance, of being rewarded for doing her very best.”
Selina Soule described her situation at a press conference, saying:
“Like the other track athletes standing here today, I face an impossible situation… Now, when we line up in front of our blockers and the starter calls us to get into position, we all know how the race will end. We can’t win. We’ve lived it. We’ve watched it happen… We’ve missed out on medals, on opportunities to compete. But when we’ve asked questions, we’ve been told we’re allowed to compete, but we shouldn’t expect to win.”
In a later interview, she added that “it’s just really frustrating and heartbreaking, because we all train extremely hard to shave off just fractions of a second off of our time. And these athletes can do half the amount of work that we do, and it doesn’t matter. We have no chance of winning.”
The basis of the legal case is the allegation by the plaintiffs that the CIAC’s policy is in violation of Title IX, which prohibits discrimination on the basis of sex, because it disadvantages the biologically female athletes. However, according to a conference call transcript obtained by National Review, judge Robert Chatignyrecently forbade the ADF’s attorneys from referring to Miller and Yearwood as “male,” and ordered the ADF to call them “female,” even though that question lies at the heart of the case. Chatigny’s statement as per the transcript:
“What I’m saying is you must refer to them as “transgender females” rather than as “males.” Again, that’s the more accurate terminology, and I think that it fully protects your client’s legitimate interests. Referring to these individuals as “transgender females” is consistent with science, common practice and perhaps human decency. To refer to them as “males,” period, is not accurate, certainly not as accurate, and I think it’s needlessly provocative. I don’t think that you surrender any legitimate interest or position if you refer to them as transgender females. That is what the case is about. This isn’t a case involving males who have decided that they want to run in girls’ events. This is a case about girls who say that transgender girls should not be allowed to run in girls’ events. So going forward, we will not refer to the proposed intervenors as “males”; understood?”
The ADF’s lead attorney, Robert Brooks, responded to this by calling out the absurdity of the order in the context of the case:
“The entire focus of the case is the fact that the CIAC policy allows individuals who are physiologically, genetically male to compete in girls’ athletics. But if I use the term “females” to describe those individuals — and we’ve said in our opening brief, we’re happy to use their preferred names, because names are not the point to the case. Gender identity is not the point of this case. The point of this case is physiology of bodies driven by chromosomes and the documented athletic advantage that comes from a male body, male hormones, and male puberty in particular. So, Your Honor, I do have a concern that I am not adequately representing my client and I’m not accurately representing their position in this case as it has to be argued before Your Honor and all the way up if I refer to these individuals as “female,” because that’s simply, when we’re talking about physiology, that’s not accurate, at least in the belief of my clients.”
Later on in the conversation, Chatigny responded:
“So if you feel strongly that you and your clients have a right to refer to these individuals as “males” and that you therefore do not want to comply with my order, then that’s unfortunate. But I’ll give you some time to think about it and you can let me know if it’s a problem. If it is, gosh, maybe we’ll need to do something. I don’t want to bully you, but at the same time, I don’t want you to be bullying anybody else. Maybe you might need to take an application to the Court of Appeals. I don’t know. But I certainly don’t want to put civility at risk in this case.”
In response, on Saturday the ADF’s legal team filed a motion for Chatigny to recuse himself, calling his order “legally unprecedented” and stating that “a disinterested observer would reasonably believe that the Court’s order and comments have destroyed the appearance of impartiality.”
Under AG Bill Bar, the Trump Justice Department has taken an interest in the case, filing a statement of interest this March and stating that the CIAC is in violation of Title IX, as well as referring to the transgender athletes as “biologically male.”
Stories like this will only become increasingly common if conservatives do not effectively push back. Perhaps between the ADF’s able legal team and the Trump administration’s support, this will be one case that stems the tide.
A sign protesting a recent North Carolina law restricting transgender bathroom access is seen in the bathroom stalls at the 21C Museum Hotel in Durham, North Carolina May 3, 2016. REUTERS/Jonathan Drake
The U.S. Department of Justice has asked a federal appeals court to overturn a judge’s ruling that suspended enforcement of the administration’s order allowing transgender students and workers to use the bathroom of their choice. U.S. District Judge Reed O’Connor, a George W. Bush appointee, blocked enforcement of the order in August.
Lawyers for the administration asked the 5th U.S. Circuit Court of Appeals to throw out O’Connor’s ruling, arguing the courts do not have the power to review the government’s order. They also argue O’Connor’s ruling was too broad, as it applied to the entire country, instead of the states challenging the order.
The administration sent guidance to school districts across the country in May, advising them to allow trans students to use the bathroom consistent with their gender identity. “A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX,”the letter said, in reference to the federal law banning gender discrimination in education. (RELATED: With Just Days Left, Obama Admin. Asks SCOTUS To Defend Gun Control)
The agencies argued that the guidelines they issued only reflect their interpretation of Title IX, and are not orders bearing the full force of law. They further contend the guidelines were issued because of ambiguities in Title IX, since the law does not address how a school should accommodate a transgender student. As a consequence, they argued the court must defer to their interpretation of the law, since a court may not overturn an agency’s interpretation so long as it is “reasonable.”
A coalition of a dozen states, led by Texas, accused the agencies of playing a “regulatory shell game” by issuing the guidelines by means of regulatory “dark matter,”a deluge of agency directives, notices, memoranda, guidance documents, and even blog posts that effectively create new policy without congressional legislation or Administrative Procedure Act (APA) protocols.
The states claim that this strategy allows agencies to evade review by the courts and achieve their policy objectives — because the guidance stems from so-called “dark matter,” it technically lacks the force of law and therefore cannot be reviewed by the courts. Nonetheless, districts that do not abide by the guidance are targeted for punishment by the agencies, ensuring district compliance with the new agency “rules.”
CHARLOTTE, N.C. — A group of North Carolina parents are joining forces to fight the Obama administration over its policy that forces public schools to allow transgender students into restrooms, showers, and locker rooms that are opposite from their biological sex.
“It’s not safe for my daughter,” Tammy Covil, a mother from Wilmington, N.C. told The Daily Signal.
The parents, part of a nonprofit called North Carolinians for Privacy, allege in a lawsuit filed May 10 against the Department of Justice and the Department of Education that the federal government is forcing them to choose between their children’s privacy and educational future.
“This is tantamount to extortion,”said Donica Hudson, a mother of three from Charlotte, N.C., “to threaten to take away our public funding, for education no less, if we don’t allow them to come in and jeopardize the safety and privacy of our children.”
The lawsuit comes in response to the Justice Department threatening to revoke federal funding from North Carolina’s public school system if it does not comply with the Obama administration’s interpretation of Title IX, which bans discrimination on the basis of sex in any educational institution that receives government funding.
Watch the video to hear from two mothers, and read more about the lawsuit below;
The Obama Administration has done it again. In an effort to strip school children of their modesty and morals, Obama has issued new instructions governing use of rest rooms, locker rooms, and showers in every government-funded school in the country. And, in predictably lawless fashion, Obama has violated not one, but two federal laws. First, he took a 1972 law, Title IX, which was designed to prevent sex discrimination in education, and says that as of today, the word “sex” in the statute does not mean the “sex” you were born with. It means whatever “gender” you feel like on a given day. And, if that was not bad enough, the manner in which the Obama Administration acted was to legislate by letter, not just usurping legislative power, but Obama violating another federal law — the Administrative Procedures Act.
Purporting to act according to what are known as official “good guidance” practices, the Civil Rights Division of the U.S. Department of Justice and the Office of Civil Rights of the U.S. Department of Education issued a transgender “good guidance” letter, dated May 13, 2016. Such a “good guidance” letter can only be issued if it does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered agencies are complying with their legal obligations.
However, like a newly enacted statute or promulgation of a new regulation, the May 13 good guidance letter includes list of new terms, never previously adopted by Congress or the Administration. Not only that, but the letter contains rules governing the interpretationof those new legal terms. For example, the letter defines “gender identity” to be “an individual’s internal sense of gender,”but then forbids the use of any objective standard – such as “medical diagnosis or treatment” — to verify any individual claim. One’s gender identity is, thus, established solely by a person’s subjective claim. And that claim can change from day to day.
Additionally, the good guidance letter indicates that the rules governing “sex segregated activities and facilities” are not the same. As for restroom and locker use, “transgender students “must have access to such facilities consistent with their gender identity,” but with respect to “athletics,” gender identity is not the sole determinant of access. That is, for athletics, a boy who feels he should be a ‘transgender girl” could be excluded from the girl’s basketball team, but not put out of the girl’s locker room.
None of these examples merely “provides information and examples” of existing regulations — which is all that guidance letters may do lawfully. This letter presents brand new interpretations of the word “sex” and new applications of new terms. And, they are binding. The guidance letter reads: “The Departments treat a student’s gender identity as the student’s sex for the purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”
According to the federal government’s own rules for Agency Good Guidance Practices, guidance letters may not be used to establish “new policy positions that the agency treats as binding. Rather, the government agency must apply with the APA’s notice-and-comment requirements.” OMB Final Bulletin for Agency Good Guidance Practices at 3.
The U.S. Court of Appeals for the District of Columbia Circuit has observed that such guidance letters can be abusive, for under them: “Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.”Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000). That is not law — it is “fiat.”
Moreover, the DOJ and DOE guidance letter misleads. Masquerading as a “Dear Colleague” letter, the two departments act as if they are just co-workers with the nation’s college presidents and university provosts, school superintendants and principals — laboring together “to make educational programs and activities safe, and inclusive for all students.” In fact, however, this “dear colleague” letter represents a threat, not an invitation. If it were collegial, it would have been penned and signed only by the Assistant Secretary for Civil Rights in the Department of Education, the federal co-worker. Instead, the letter is also signed by the Principal Deputy Assistant Attorney for Civil Rights in the Department of Justice — the federal enforcer.
Both signers pretend that the newly hatched transgender student policy is not worthy of public debate and decision by the people’s elected representatives in Congress.Rather, it is a done deal. It is time for the people to call on their elected state officials and representatives to fight for their rights not to be governed by two leftist unelected bureaucrats. Now, the only question is whether the supposedly sovereign states will cave to federal threats, and whether the federal courts will look the other way, as they have done all too frequently in the past.
Just Tuesday, we filed an amicus brief in the Fourth Circuit case of G.G. v. County of Gloucester. This brief was filed for Public Advocate of the United States, the United States Justice Foundation, and Conservative Legal Defense and Education Fund. Our brief was in support of an effort to have the Fourth Circuit reconsider its decision upholding the Obama Administration’s order that the boys’ restrooms in Gloucester County, Virginia schools be opened to girls, and, by the logic of the decision, would open the girls’ restrooms to boys. One would have thought that the Obama gang would have awaited a decision from the Fourth Circuit, but it was not to be. The Obama Administration sees that with each turn of the calendar there are fewer and fewer days to remake America, as President Obama promised in his inaugural address. So much damage to be done, and so little time to do it.
ABOUT THE AUTHOR:
Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together they have filed over 85 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at wjo@mindspring.com or twitter.com/Olsonlaw.
The Fourth Circuit Court ruled today against a Virginia school district that sought to accommodate a transgender student while also protecting the privacy rights of other students. The federal court concluded that Title IX of the Education Amendments of 1972—which prohibits discrimination on the basis of sex—should be interpreted as prohibiting discrimination on the basis of gender identity, as a Department of Education letter suggested in 2015. The ruling allows a lawsuit brought by a transgender student to proceed.
The case involves a biological girl who identifies as a boy. The court’s majority explains it this way: “G.G.’s birth-assigned sex, or so-called ‘biological sex,’ is female, but G.G.’s gender identity is male.” Note the scare quotes around what the court calls “so-called ‘biological sex.’”Biological sex, in fact, is precisely what Congress protected in 1972.
In a stinging dissent, Judge Paul Niemeyer points out that “the majority’s opinion, for the first time ever, holds that a public high school may not provide separate restrooms and locker rooms on the basis of biological sex.”It’s hard to imagine that that’s what Congress was prohibiting when it enacted Title IX in 1972.
Indeed, the court’s ruling goes against human history, practice, and common sense. Niemeyer explains:
This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. … schools would no longer be able to protect physiological privacy as between students of the opposite biological sex.
This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.
Niemeyer even points out that students have privacy rights to not have students of the other biological sex in their locker rooms:
Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females. An individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind.
Nevertheless, G.G. sued the school district. Why? Because the district created a policy which says that bathroom and locker room access is primarily based on biology, while also creating accommodations for transgender students. Specifically, the policy is that only biological girls can use the girls’ room, only biological boys can use the boys’ room, and any student can use one of the three single-occupancy bathrooms, which the school created specifically to accommodate transgender students.
But even this accommodation wasn’t good enough. Hence the lawsuit and Tuesday’s ruling.
In a concurring opinion, Judge Andre Davis claims the student is at risk of “irreparable harm” if forced to use a single-occupancy bathroom. Davis says that to support the claim of “irreparable harm, G.G. submitted an affidavit to the district court describing the psychological distress he experiences when he is forced to use the single-stall restrooms.”
Davis adds that “G.G. experiences daily psychological harm that puts him at risk for long-term psychological harm, and his avoidance of the restroom as a result of the Board’s policy puts him at risk for developing a urinary tract infection as he has repeatedly in the past.”Davis concludes that for G.G. to use single-occupancy restrooms “is tantamount to humiliation and a continuing mark of difference.”
Niemeyer, however, points out that the majority relies not on the actual text, history, or legal implementation of Title IX, but on a 2015 letter from the Office for Civil Rights of the Department of Education: “The recent Office for Civil Rights letter, moreover, which isnot law but which is the only authority on which the majority relies, states more than the majority acknowledges.” Indeed, that letter suggested that schools “offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.”
At the end of the day, it’s hard to disagree with Niemeyer when he writes, “Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.”This is simply an unaccountable agency and an activist court rewriting Title IX and remaking bathroom policy across our nation.
Bathroom, locker room, and shower facility policies that protect privacy based on biology while also accommodating transgender students make good sense. And as Niemeyer explains, they comply with the law, too: “When the school board assigned restrooms and locker rooms on the basis of biological sex, it was clearly complying precisely with the unambiguous language of Title IX and its regulations.”
ABOUT THE AUTHOR:
Ryan T. Anderson, Ph.D., researches and writes about marriage and religious liberty as the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory. He’s the author of the just-released book, Truth Overruled: The Future of Marriage and Religious Liberty.” Read his research.
Now comes word that the U.S. Department of Education’s Office for Civil Rights has ordered a taxpayer-funded school district in Palatine, Ill., to allow a male transgender student who dresses like a girl and otherwise identifies as female to use the girls locker room and shower on school premises.
The Department of Education has given the school district one month to let the student use the girls locker room. If the district does not capitulate, it risks losing federal funding.
President Barack Obama’s Department of Education — which manifestly is not vested with judicial powers — has taken to applying Title IX, a comprehensive 1972 federal law that prohibits discrimination on the basis of sex, to transgender cases.
Megyn Kelly of Fox News Channel did an illuminating segment on this ruling, a video clip of which follows:
The school attempted to accommodate the student, setting up a separate dressing area for him that would allow girls the privacy they deserve, but the teen, backed by the ACLU, refused to accept “halfway measures.”
The Chicago Tribune.quotes John Knight, director of the LGBT and AIDS Project at ACLU of Illinois, as saying, “Showering in a different place is ‘blatant discrimination,’” adding:
It’s one thing to say to all the girls, ‘You can choose if you want some extra privacy,’ but it’s another thing to say, ‘You, and you alone, must use them.’ That sends a pretty strong signal to her that she’s not accepted and the district does not see her as girl.
On Monday, the Education Department’s Office for Civil Rights said it agreed with Knight’s assessment, writing in a letter:
Student A has not only received an unequal opportunity to benefit from the District’s educational program, but has also experienced an ongoing sense of isolation and ostracism throughout her high school enrollment at the school.
I can imagine that people who find this decision intrusive and appalling will raise hypothetical questions like “Would Obama be OK with his daughters showering next to biologically male teens?” Something tells me his answer would be yes. That doesn’t mean, of course, he should have the final say on whether it’s OK for other parents or their daughters.
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Speaker Pelosi held an event to celebrate women athletes to honor the 50th Anniversary of the passage of Title IX. (Anna Moneymaker/Getty Images)
Kevin Daley / Legal Affairs Reporter / 01/09/2017
When it rains it pours. This morning 
What Did You Say? 
The case involves a biological girl who identifies as a boy. The court’s majority explains it this way: “G.G.’s birth-assigned sex, or so-called ‘biological sex,’ is female, but G.G.’s gender identity is male.” Note the scare quotes around what the court calls “so-called ‘biological sex.’” Biological sex, in fact, is precisely what Congress protected in 1972.
In a stinging dissent, Judge Paul Niemeyer points out that “the majority’s opinion, for the first time ever, holds that a public high school may not provide separate restrooms and locker rooms on the basis of biological sex.” It’s hard to imagine that that’s what Congress was prohibiting when it enacted Title IX in 1972.
Indeed, the court’s ruling goes against human history, practice, and common sense. Niemeyer explains:
Niemeyer even points out that students have privacy rights to not have students of the other biological sex in their locker rooms:
Nevertheless, G.G. sued the school district. Why? Because the district created a policy which says that bathroom and locker room access is primarily based on biology, while also creating accommodations for transgender students. Specifically, the policy is that only biological girls can use the girls’ room, only biological boys can use the boys’ room, and any student can use one of the three single-occupancy bathrooms, which the school created specifically to accommodate transgender students.
But even this accommodation wasn’t good enough. Hence the lawsuit and Tuesday’s ruling.
In a concurring opinion, Judge Andre Davis claims the student is at risk of “irreparable harm” if forced to use a single-occupancy bathroom. Davis says that to support the claim of “irreparable harm, G.G. submitted an affidavit to the district court describing the psychological distress he experiences when he is forced to use the single-stall restrooms.”
Davis adds that “G.G. experiences daily psychological harm that puts him at risk for long-term psychological harm, and his avoidance of the restroom as a result of the Board’s policy puts him at risk for developing a urinary tract infection as he has repeatedly in the past.” Davis concludes that for G.G. to use single-occupancy restrooms “is tantamount to humiliation and a continuing mark of difference.”
Niemeyer, however, points out that the majority relies not on the actual text, history, or legal implementation of Title IX, but on a 2015 letter from the Office for Civil Rights of the Department of Education: “The recent Office for Civil Rights letter, moreover, which is not law but which is the only authority on which the majority relies, states more than the majority acknowledges.” Indeed, that letter suggested that schools “offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.”
At the end of the day, it’s hard to disagree with Niemeyer when he writes, “Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.” This is simply an unaccountable agency and an activist court rewriting Title IX and remaking bathroom policy across our nation.
Bathroom, locker room, and shower facility policies that protect privacy based on biology while also accommodating transgender students make good sense. And as Niemeyer explains, they comply with the law, too: “When the school board assigned restrooms and locker rooms on the basis of biological sex, it was clearly complying precisely with the unambiguous language of Title IX and its regulations.”
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