The Department of Education (DOE) under President Joe Biden announced that it would reverse the Trump administration policy on Title IX of the Education Amendments of 1972. The Biden DOE will effectively flip the meaning of “sex” on its head, determining that “discrimination on the basis of sex” includes discrimination on the basis of sexual orientation and gender identity. This means the DOE sanctions transgender invasions of women’s private spaces and women’s sports in schools, which arguably violate Title IX.
Education Secretary Miguel Cardona defended the new policy by referencing the Supreme Court case Bostock v. Clayton County (2020), in which the Court ruled that discrimination on the basis of “sex” in a 1964 civil rights law included discrimination on the basis of sexual orientation and gender identity. Justice Samuel Alito condemned this notion — which Congress and the president could not have even conceived in 1964 — as “preposterous.”
“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination – and our LGBTQ+ students have the same rights and deserve the same protections,” Cardona said in a statement on Wednesday. “I’m proud to have directed the Office for Civil Rights to enforce Title IX to protect all students from all forms of sex discrimination. Today, the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools that are free from discrimination.”
Contrary to Cardona’s rhetoric, however, extending this protection from alleged discrimination to transgender students does not come without a cost. The move merely shifts the burden away from one group and toward another.
Christiana Holcomb, legal counsel for Alliance Defending Freedom (ADF), the law firm that is representing three high school girls who sued Connecticut for violating Title IX by allowing biological males to defeat them in women’s sports, condemned the Biden DOE’s move.
“Today, the U.S. Department of Education took its next step in forcing radical gender identity ideology on everyday Americans. The Biden administration’s politically motivated change is inconsistent with Title IX, and the physical differences between males and females,” Holcomb argued. “It misconstrues U.S. Supreme Court precedent, and is yet another example of government overreach.”
“Title IX exists precisely to ensure that women and girls have equal opportunities in education, including in sports. Girls and women deserve better than having their opportunities stripped away in service of harmful ideology,” the ADF lawyer explained.
Yet Cardona’s new policy also echoes Biden’s day 1 executive order pushing LGBT activism in federal law. Biden issued an executive order banning “discrimination” on the basis of gender identity in many aspects of American society. This order requires schools to open girls’ restrooms, locker rooms, and sports leagues to biological boys. It requires health care plans to pay for experimental transgender “treatments” and requires doctors and hospitals to perform them.
Such a policy leaves women vulnerable to male perverts posing as transgender who may prey on them in restrooms and locker rooms. This policy destroys fair competition in women’s sports, since males have biological advantages over females that cannot be erased by simply identifying as female. Duke Law School professor Doriane Lambelet Coleman warned that if women’s sports must admit biological men, “the very best women in the world would lose to literally thousands of boys and men, including thousands who would be considered second-tier.”
As Justice Alito warned, transgender policies like this may also conflict with religious freedom and free speech, as the DOE would likely consider “misgendering” a transgender student to be a form of discrimination barred under Title IX.
It remains unclear how the DOE’s new policy would apply to transgender “medicine,” the controversial application of so-called “puberty blockers” and cross-sex hormones to children and adults. Even in the case of adults, there is no evidence that transgender surgery improves the mental health outcomes of gender dysphoric people. Men and women who formerly identified as transgender and underwent surgery have grown to reject transgender identity and lament the damage they did to their own bodies.
Last year, Britain’s High Court ruled that children under age 16 lack the ability to consent to “puberty-blocking” drugs and cross-sex hormones that have irreversible life-long effects. Children who undergo such “treatments” often persist in transgender identity and lose their ability to have children later in life, so some refer to cross-sex hormones and “puberty blockers” as “chemical castration.”
Even if this redefinition of “sex” did not pose serious threats to women, impose a controversial ideology on America’s schools, or endorse dangerous ideas about gender identity that will scar children, it would still be a gross abuse of language. “Sex” refers to a person’s biological designation as male or female, tracing back to DNA. While a few individuals tragically suffer disorders of sex development, transgenderism involves clearly male or female individuals who identify with the gender opposite their biological sex.
Discrimination on the basis of sex cannot mean discrimination on the basis of gender identity or discrimination on the basis of sexual orientation, which are very different concepts. When Congress passed the Education Amendments, lawmakers clearly intended to prevent discrimination against women, not discrimination against homosexuals or transgender people.
Congress is currently considering the Equality Act, which would explicitly outlaw discrimination on the basis of sexual orientation and gender identity. This fact also shows that current law does not mean what Bostock or Biden or Cardona say it does.
As the DOE under Trump concluded, Bostock v. Clayton County did not involve Title IX and “sex” did not include gender identity or sexual orientation when Title IX was enacted.
It sounds very noble to fight “discrimination,” but the Biden DOE’s new policy wreaks havoc on basic logic, the rule of law, the fairness of women’s sports, free speech, and many other issues.