The Biden administration suffered a well-deserved defeat, albeit only an interim one, in its effort to make federal law favor transgender ideology ahead of the rights of biological women.
The Western District of Louisiana on June 13 served the causes of common sense, good law, and women’s health by issuing a preliminary injunction against Biden’s new regulations under Title IX, which bans discrimination in educational programs and activities on the basis of “sex.” Without any actual change in a federal statute, Biden’s Department of Education issued a rule claiming that “sex” includes “gender identity” but without even fully defining the latter term.
As a result of the new rule, the Defense of Freedom Institute explains, “sex-separated intimate facilities, such as restrooms, showers, and locker rooms, and even athletics fields are now prohibited — a violent deviation from Title IX and years of agency interpretation and enforcement practice.”
DFI, representing the states of Louisiana, Mississippi, Montana, and Idaho, had filed suit to block the new rule. The court’s injunction bars the rule from being implemented in those four states. Similar suits are sure to see at least interim success in other states, and the controversy is almost certain to wind its way to the Supreme Court before long.
The brief filed by DFI and the four states is strongly worded. Appropriately so. They write that the rule’s “consequences will be shocking and severe. Boys and girls will be forced to share bathrooms, locker rooms, and perhaps even lodging on overnight field trips with members of the opposite sex. Adding insult to injury, they will be forced to use ‘preferred pronouns’ or else face punishment, which raises distinct Free Speech and Free Exercise [of religion] problems.”
The rule also could be used to bolster the practice of schools hiding from parents the fact that their minor children are receiving “gender-affirming” counseling.
Legally, the rule extends regulatory powers beyond all propriety. Nowhere did Congress pass and a president sign a law that said “gender identity” is protected. Biden’s bureaucrats essentially added those new words to the law and, in doing so, completely upended the entire purpose of Title IX. The point of Title IX was to recognize distinctions between the sexes and to provide protections to girls and women based on those distinctions. Instead, the new rule erases all those distinctions at the whim of gender transitioners or of school officials who encourage them, at the direct disadvantage and loss of privacy of the biological women and girls it is meant to protect.
Indeed, Title IX’s actual language notes that “nothing contained herein shall be construed to prohibit” educational institutions “from maintaining separate living facilities for the different sexes.” Biden’s rule instead does the exact opposite, meaning institutions will be punished if they do try to keep separate living facilities that exclude gender-bending, biological men from women’s quarters. The Biden rule runs directly counter to congressional intent: When passing Title IX, Sen. Birch Bayh (D-IN) specifically said it “permit[s] differential treatment by sex … in sports facilities or other instances where personal privacy must be preserved.”
For all these reasons and more, the Biden administration is legally so far in the wrong as to be outrageous. It will almost surely lose if the issue reaches the Supreme Court.
From a medical standpoint, too, Biden is wrong. While this is of less legal importance than scientific, the American College of Pediatricians earlier this month issued a “declaration” rejecting the idea that “gender identity” and “sex” are at all the same thing and blasting the practice of encouraging gender transitions. Joined by numerous other medical groups and leading physicians, the declaration said that recognition of the “innate differences” between the two sexes “is critical to the practice of good medicine and to the development of sound public policy.”
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Official policy in the United Kingdom, Sweden, Finland, Norway, and France now follows this growing medical consensus that gender transitions for children are, in most cases, not appropriate.
In sum, the Biden administration is wrong legally, medically, and ethically. Its Thursday loss in a Louisiana case ought to be the first of many such defeats until it withdraws the unwarranted and flat-out dangerous rule.
