Biden’s Gender Fantasy Takes Another Hit

In April 2024, Joe Biden’s Department of Education, in response to an executive order by Biden, issued amended regulations implementing the Education Amendments Act of 1972, commonly known as Title IX, which prohibits discrimination on the basis of sex in educational programs.

These new regulations essentially incorporated the entire far-left “trans” ideology and imposed it as a matter of federal law. Among other things, the regulations force women to share locker rooms and bathrooms with men who claim to be women. They also force schools to allow men pretending to be women to compete against women. This gender-queer ideology is not just controversial, it is adhered to by only a small minority of Americans. Yet the Biden administration purported to find a mandate in a law passed in 1972, when none of these absurdities were dreamed of, to impose it on all of us, whether we like it or not.

Not surprisingly, the courts have been skeptical. Yesterday, federal judge Danny Reeves entered an order that enjoins the Biden administration from enforcing its rule. The case is titled State of Tennessee, et al., v. Miguel Cardona, in his Official Capacity as Secretary of Education, et al. In addition to Tennessee, the states of Kentucky, Ohio, Indiana, Virginia, and West Virginia were plaintiffs. You can tell Judge Reeves is on the right track from the first sentence of his opinion:

There are two sexes: male and female.

Amusingly, this sentence is footnoted. Judge Reeves notes that during oral argument, the lawyer for the Biden administration admitted that it is true. Given the language of Title IX, everything else follows from that admission. But Judge Reeves proceeds with a lengthy exposition of the history of Title IX and the women’s movement that gave rise to it. That was a long-forgotten era when you could have a women’s movement without a Supreme Court nominee saying that she can’t tell you what a woman is.

Judge Reeves’s 93-page opinion is a brick by brick deconstruction of the “trans” ideology that falls apart upon even a rudimentary review. He concludes:

Title IX of the Education Amendments of 1972 was intended to level the playing field between men and women in education. The statute tells us that no person shall be subjected to discrimination under any education program or activity receiving Federal financial assistance “on the basis of sex.” 20 U.S.C. § 1681. However, the Department of Education seeks to derail deeply rooted law with a Final Rule that is set to go into effect on August 1, 2024.

At bottom, the Department would turn Title IX on its head by redefining “sex” to include “gender identity.” But “sex” and “gender identity” do not mean the same thing. The Department’s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute. …

The Final Rule also has serious First Amendment implications. The rule includes a new definition of sexual harassment which may require educators to use pronouns consistent with a student’s purported gender identity rather than their biological sex. Based on the “pervasive” nature of pronoun usage in everyday life, educators likely would be required to use students’ preferred pronouns regardless of whether doing so conflicts with the educator’s religious or moral beliefs. A rule that compels speech and engages in such viewpoint discrimination is impermissible.

Additionally, the Department’s actions with respect to this rulemaking are arbitrary and capricious. The Department fails to provide a reasoned explanation for departing from its longstanding interpretations regarding the meaning of sex and provided virtually no answers to many of the difficult questions that arose during the public comment phase. Notably, the Department does not provide a sufficient explanation for leaving regulations in place that conflict with the new gender-identity mandate, nor does it meaningfully respond to commentors’ concerns regarding risks posed to student and faculty safety.

So Judge Reeves enjoined implementation of Biden’s new regulations. His injunction extends to the plaintiff states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. Judge Reeves’s order joins another, entered by a federal judge in Louisiana last week, that enjoins enforcement of the Biden regulations in Louisiana, Mississippi, Montana, and Idaho.

These cases are destined for the appellate courts, but a solid record is being created at the trial court level, and the Biden rules are so obviously out of bounds–not a liberal interpretation of Title IX, but rather a reversal of its core purpose–that they are destined to be repudiated. Recent bizarre proceedings in New York and Georgia courts have caused many to wonder whether our judicial system is hopeless, but these rulings indicate that all is not lost.

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