We find ourselves once again a nation divided. This time, however, it is not by skin color. In fact, the nation has come to blows over something that is neither visible nor measurable: the notion of “being transgender.” Given the immutable binary design of our two human sexes, however, “being transgender” isn’t “being” at all. Instead, as the trans activists lecture us, “being transgender” indicates a “feeling” and a “sense” in a person’s mind. Thus, a national debate is now roiling over the rights of—and obligations owed to—this “innermost voice” that tells a person: “You were born in the wrong body. And if you merely believe in your heart that you truly are, in fact, the sex that you physically are not, then You. Are. That. Sex. And everyone else must accept this as true.”
The Biden Administration wishes to turn this innermost voice, which only a single human hears, into the law of the land, and has attempted to do so repeatedly. Its attempt in 2021 has just been blocked by the Sixth Circuit Court of Appeals. Here’s what happened on June 14, 2024 in Tennessee, et al. v. U.S. Department of Education.
BACKGROUND
Title VII (1964) was enacted as part of the 1964 Civil Rights Act to prohibit discrimination based on race, color, religion, sex, and national origin. For our purposes, let’s simplify it to state that this Act prevents discrimination in the workplace.
Title IX (1972) was enacted as part of the 1972 Education Amendments and prohibits schools that receive federal funds from discriminating based on “sex.” Let’s simplify this Act by stating that this Act prevents discrimination in sports.
In June 2020, our U.S. Supreme Court decided the case of Bostock v. Clayton County, 590 U.S. 644, which was actually a consolidation of three employment-discrimination cases from different federal circuits. Each case was brought for an employer’s violation of Title VII, specifically each employer having terminated each plaintiff employee shortly after learning that the employee was gay or “transgender.” SCOTUS ruled in favor of the fired employees, holding that under Title VII, an employer commits impermissible discrimination “based on sex” when it fires a person merely on the basis of that person’s “homosexuality or transgender status.” In Bostock, SCOTUS did not consider or even mention Title IX at all. (Personally, I along with many other attorneys wonder if the Supreme Court bemoans the elevation of an ethereal, fluid, mutable, transgender identity to be equal to the immutable, tangible category of “sex” even in the limited framework of employment—but that is for another day. That discussion requires a careful dissection, because even the most gender critical among us of course do not advocate that trans-identified people be denied gainful employment.)
The Biden administration can never let a ruling about employment of gay people lie; it must keep pushing further and further into the Trans-O-Sphere. In June 2021, Biden’s Department of Education (“Department”) used the Bostock decision as cover to issue three administrative documents which, for simplicity, will be called the “Guidance Documents.”
The new administration took one inartfully written sentence and re-characterized the entire case of Bostock to expand the meaning of sex to the absurd. On June 22, 2021, the Department published its interpretation of Title IX in the Federal Register entitled Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination. Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County. The Department noted that Office of Civil Rights “at times has stated that Title IX’s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity.” However, given Bostock and Title IX’s similarities to Title VII, the Department will now “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.” Like that, the giant leap was made.
A “Dear Educator” letter followed. The letter told Title IX recipients about the Notice of Interpretation and reiterated that the Department “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity.”
The letter also attached a “Fact Sheet” entitled Confronting Anti-LGBTQI+ Harassment in Schools: A Resource for Students and Families. The Fact Sheet asserts that “discrimination against students based on their sexual orientation or gender identity is a form of sex discrimination prohibited by federal law.” The Fact Sheet also provides examples of what types of claims the Department may investigate. To name a few, these claims include preventing a “‘transgender high school girl’ from using the ‘girls’ restroom,’” “preventing a ‘transgender high school girl’ from ‘trying out for the girls’ cheerleading team,’” and “failing to use a transgender student’s preferred name or pronouns.”
The Fact Sheet adds that Title IX’s financial recipients “have a responsibility to investigate and address sex discrimination, including sexual harassment, against students because of their perceived or actual sexual orientation or gender identity.” The Department graciously offered to assist schools in meeting their legal obligations.
On August 30, 2021, twenty states sued, challenging the legality of these Guidance Documents that purported to expand Title IX as including the prohibition of discrimination based on gender identity–a term not used in Title IX. The Guidance Documents warned that schools who provided sex-segregated spaces and teams would now lose their federal funding for refusing to allow “transgender” students into spaces traditionally segregated by biological sex. The guidance, despite not being law, schools across the country in all 50 states invited males into female spaces.
In August 2021, the attorney general of Tennessee and 19 other state attorneys general sued the Department to block the government’s enforcement of this new, unilateral expansion of Title IX. Upon filing the lawsuit, the 20 states asked for a preliminary injunction to block enforcement of the provisions contained in the Guidance Documents. A preliminary injunction seeks to temporarily stop the wrongful conduct while the underlying litigation proceeds to a final ruling, and is only granted when a court concludes that the party seeking the injunction has a “likelihood of success on the merits,” i.e., a very good chance of winning at trial. This tactic can expedite a case while leaving the status quo in place.
The lawsuit is narrow in nature. In effect, the states alleged: “You did it wrong. You can’t just expand Title IX like that.” It was an attack on the methodology employed to take a ruling related to a Title VII case and make it effective to Title IX, a different Act with a different purpose. This is why this Tennessee case will not adjudicate whether males should be allowed in females’ sports and spaces. The attorneys general of the 20 states objected to the Guidance Documents on procedure alone: the Documents were issued improperly, and thus they are “procedurally and substantively unlawful under the Administrative Procedure Act, Title IX, and the U.S. Constitution.”
We are a nation of laws, and those laws direct how we enact and enforce laws, regulations, and even “guidance.” The Biden Administration ignored the rules of administrative procedure and thus ignored the law.
In September 2021, a district court agreed, and granted the preliminary injunction to the plaintiff states, which blocked any enforcement of the Guidance Documents and preserved the ability of those states to continue sex-segregated sports and spaces while their lawsuit continued. The Biden Department filed an appeal of that ruling.
Nearly three years later, on June 14, 2024, the Sixth Circuit Court of Appeals has upheld the lower court’s block of the Biden Administration’s purported expansion of Title IX through those 2021 Guidance Documents (and thus has blocked the Department’s ability to follow through with its threat to withhold funding from schools in states that continue sex-segregated sports and spaces). This ruling protects only the 20 states who sued, and has no binding effect on the other 30 states in the nation.
Again, because the preliminary injunction has been upheld, the Sixth Circuit court found that the twenty states are likely to be victorious in their challenge to the legality of the Department’s process in issuing the Guidance Documents and that the Guidance Documents must be rescinded. The Sixth Circuit’s affirmance of the lower court is another nail in the coffin for the Biden Department’s attempt to transmogrify SCOTUS’s holding in Bostock related to Title VII, into applicability to Title IX, which involves very different factual and legal inquiries.
As attorney Matt Bowman, an attorney for Alliance Defending Freedom representing the twenty states, stated to the Epoch Times, the appellate ruling in the Tennessee v. Department of Education case filed in 2021 will have no bearing on the Biden Administration’s recent overhaul of Title IX in April 2024.
But have no fear. ADF is already on it and other Attorneys General, with now ten states having won preliminary injunctions blocking the “illegal attempt to rewrite Title IX.” This is like whack-a-mole litigation, and ADF is racking up those Chuck E. Cheese tickets like crazy!
In the meantime, on sports fields and in locker rooms all across America, males continue to compete as females in sports and enter their private spaces.
If I were to venture a guess, we are going to be a country divided by states that do not believe, sex is a binary, and states that do not, until SCOTUS itself decides the hierarchy of sex and gender identity, while the mass migration of families relocating to conservative enclaves continues. A United States divided is untenable. Our very union is at risk.