The U.S. Department of Education in June published a “Notice of Interpretation” essentially redefining the word “sex” in Title IX of the Educational Amendments to include sexual orientation and “gender identity” in light of the “conservative” U.S. Supreme Court’s decision in Bostock v. Clayton County.
Six of the nine justices said the Civil Rights Act of 1964 bars discrimination based on sexual orientation and “gender identity.” The Trump-appointed Justice Neil Gorsuch wrote the majority opinion.
A coalition of 20 states, led by Tennessee, filed a lawsuit challenging the Biden administration’s interpretation of federal law and for “flouting procedural requirements.” The plaintiffs contend (PDF) that Title IX “expressly permits sex separation on the basis of biological sex,” and that Bostock “expressly disclaimed any intent to interpret other federal or state laws that prohibit sex discrimination.”
The states also said Bostock was a narrow decision — that the high court held only that firing an employee “simply for being homosexual or transgender” is discrimination based on “basis of sex” under Title VII, as opposed to requiring employers to give men access to women’s private facilities.
The coalition alleges that the government compounded their erroneous interpretation by issuing “fact” sheets warning schools that they face a federal investigation if they prevent boys from using girls’ private restrooms and locker rooms, for example, or if other students refuse to refer to boys as “she” and vice versa.
Under the Biden administration’s misinterpretation of the law, schools would be required to allow males pretending to be females to participate on female athletic teams, use female-designated showers and locker rooms, and share dorm rooms.
Alliance Defending Freedom (ADF) announced that its clients, the Association of Christian Schools International and three female athletes from Arkansas, have asked to intervene in the coalition’s lawsuit.
“The Biden administration’s radical push to redefine sex in federal law has widespread impact and specifically threatens female athletes,” ADF Senior Counsel Ryan Bangert said. “This undermines one of the driving purposes of Title IX to promote equality for women in athletics, and it jeopardizes the safety of female athletes by allowing physically stronger, faster, and larger males to compete on women’s teams. Our Constitution protects against this gross overreach of executive power, and the athletes and the Association of Christian Schools International that Alliance Defending Freedom represent are committed to protecting safe and fair opportunities for female athletes.”
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