Man-made positive laws should follow the laws of nature. This once seemed like common sense. For example, construction codes follow the law of gravity. Home builders must build walls that can withstand the weight of the floor or roof above. Load-bearing walls protect a home’s inhabitants by preventing rooms from collapsing under the force of gravity. Similarly, education policies should follow the laws of biology. Legislators and administrators must ensure that males and females are kept separate in certain spaces and activities. Sex-specific policies protect a school’s students by preventing safety, privacy, and order from collapsing under the force of biology.
The Biden–Harris administration’s unlawful attempt to redefine sex as “gender identity” in its Title IX rule defies the nature of the human person. The U.S. Department of Education rule took effect on August 1 in twenty-four states. However, courts have enjoined the rule in the twenty-six states that sued the administration. The U.S. Supreme Court recently denied the administration’s emergency requests to narrow two preliminary injunctions. The Fifth and Sixth Circuit Courts of Appeals will now have the opportunity to rule on the full merits of the appeals, which could then possibly return to the Supreme Court.
For the time being, those twenty-six states have successfully resisted the unlawful erasure of women and girls. If the cases return to the U.S. Supreme Court, the justices should ensure that all schools funded by the federal government can respect biological reality as Congress did when enacting the Title IX statute.
This man-made law elevates psychology over biology, and its defiance of reality could harm many. A house built without load-bearing walls would crumble room by room. Similarly, safety, privacy, and freedom in a school without sex-specific policies will also collapse in stages. The victims of state and local transgender policies have already seen this in bathrooms, locker rooms, classrooms, and athletic competitions.
Long before this administration’s unlawful attempt to erase women and girls through regulations, Congress sought to create equal opportunities for female students. The statute, Title IX of the 1972 Educational Amendments, prohibited discrimination “on the basis of sex” by any federally-funded education program. It gave female students new opportunities to enter academic fields and sports competitions from which they had been excluded. The statute did this, in part, by recognizing the differences between males and females. The statute itself allowed for “separate living facilities for the different sexes.” Then, in 1975, the Ford administration enacted regulations that permitted schools to maintain “separate locker rooms, toilets and showers . . . comparable to those provided to members of the other sex.”
Now, the Biden–Harris administration’s rule adds “gender identity” to the phrase “on the basis of sex.” Gender identity is defined as “an individual’s sense of their gender, which may or may not be different from their sex assigned at birth.” This formulation allows a male student’s subjective belief that he is female or “nonbinary” to overrule the objective reality of his body.
The redefinition of sex attempts to overrule the reality of nature, the text of Title IX, and the Ford administration’s regulation. And it overrides the will of the American people as expressed by both the Democrats and Republicans who enacted Title IX.
Bathrooms and Locker Rooms
The new rule prohibits schools and universities from providing separate restrooms and locker rooms for the different sexes. A male claiming a female gender identity could not be forbidden even from using the girls’ showers, as that would constitute discrimination against him. This will make bathrooms, locker rooms, and showers unsafe for female students and destroy privacy for all.
No student—including one who is distressed by his or her body—should face discrimination. But maintaining sex-specific spaces is not discrimination. As the late Justice Ruth Bader Ginsburg recognized, “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” She recognized that there was no conflict between respect for the individual’s right to privacy and equality between the sexes.
And there are better ways to accommodate students who experience gender confusion or even gender dysphoria—a recognized mental health condition that is often fostered by social contagion. Schools have offered to provide these students with their own private spaces. At a Virginia school, a female student who identified as a male, Gavin Grimm, sued to use the male bathroom instead of an individual restroom. She claimed that the school’s policy was stigmatizing and inconvenient. As a result of the lawsuit, the school was forced to open all bathrooms to students on the basis of their own beliefs, not their biological sex.
At least eleven states have adopted laws that require schools to provide separate bathrooms according to sex, just as the Title IX regulations did for five decades. Under the Biden administration’s new rule, these states will have to stop enforcing their laws or risk losing federal education funds. The states that tried to stop the rule from going into effect argued that it overrides their authority to regulate education. One court described the Title IX rule as “arbitrary in the truest sense of the word,” noting that the Department of Education didn’t account for serious safety concerns raised by the public. And several federal courts have held that the agency violated a federal law, the Administrative Procedures Act, by acting beyond its authority.
Athletic Competition
Meanwhile, the injustice and danger of denying biological reality is patently clear in athletics. Stellar female athletes are being defeated by average male competitors on the field and then forced to undress with them in the locker room.
One of the parties in a lawsuit against the Biden administration is Adaleia Cross, a fifteen-year-old track-and-field athlete. When a male schoolmate nearly two years her junior began to identify as a girl, his physical advantage quickly enabled him to dominate female competitors. The boost of testosterone during puberty enabled him to throw a shot and discus farther than Adaleia could, even though she had previously been the superior athlete in both events.
Adaleia wasn’t the only one the male schoolmate knocked out of competition. In two years, he displaced almost 300 different female athletes more than 600 times. And after defeating her on the field, the boy threatened Adaleia with sexual assault, using graphic terms to describe his body and hers. As a result, Adaleia considered quitting sports entirely.
The new rule reverses the progress that Title IX enabled female athletes to make over the last five decades. Depriving today’s female athletes of their own teams and locker rooms makes competition grossly unfair and dangerous and puts them at greater risk of sexual harassment and assault.
In a savvy political move, the Biden–Harris administration stated that it will not publish a Title IX rule on sports until after the election. But the logic of the current rule makes it clear that schools will have to ignore biology. As experts have documented, testosterone gives male athletes an undeniable physical advantage in athletic performance. Denying that will make the world of athletics unbearably hostile and hazardous for women and girls.
The Classroom
The new rule also threatens freedom of speech in the classroom. In addition to defining sex subjectively, the rule lowers the standard for “hostile environment sex-based harassment.”
The existing standard for sexual harassment based on the 2020 Title IX rule requires a finding of “conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.” The Biden-Harris rule lowers the threshold of proof by requiring only that the conduct be “severe or pervasive” and states that it’s enough to merely “limit” someone’s ability to participate in school.
The lowered threshold and the subjective understanding of sex open the door to charges of sex discrimination based on pronouns. For instance, a student who identifies as the opposite sex could claim offense when a student or teacher uses a biologically accurate pronoun. Inevitably, the rule will lead to more violations of the First Amendment. Courts have held that compelling teachers to use pronouns according to a student’s gender identity imposes government orthodoxy and is unconstitutional.
Physicians’ Offices
A parallel rule being promulgated by the Biden-Harris Department of Health and Human Services will defy biological reality in the doctor’s office. Incorporating Title IX’s unlawful addition of gender identity into the Affordable Care Act’s nondiscrimination provision means that healthcare workers could be forced to fast-track youth who identify as the opposite sex toward experimental and dangerous medical procedures.
The radical redefinition of sex in health care will force doctors to violate their consciences. Some do not want to treat emotionally and mentally distressed youth with experimental and dangerous hormones and sterilizing surgeries. They are following the evidence to reach the same conclusions as European health authorities. After reviewing the best evidence, England, Sweden, Norway, and Finland found that interfering with the body’s sexual development does irreversible harm to children and youth who would be better served by exploring the underlying reasons for their psychological distress. In fact, a high court in the United Kingdom has now upheld a ban on puberty blockers to treat gender dysphoria.
In light of these findings, U.S. doctors are suing to stop the Biden–Harris administration from forcing them to harm their patients. Together with states, female athletes, and parents, they are trying to prevent these unlawful rule changes from having a brutal impact Americans. Fortunately, five courts have put the new healthcare rule on hold, blocking it from enforcement.
The Limits of Government
But the concerns raised by redefining sex run even deeper than harming individuals and erasing women’s rights. The Biden administration is seeking to impose its point of view on a matter that goes far beyond the competence and authority of any government. As one group of scholars explains, transgender claims raise an ancient metaphysical debate about the nature of reality itself. After all, transgender ideology asserts that a person’s feelings or thoughts are more grounded in reality than a person’s objective physical anatomy.
Transgender claims—like the ones in the Title IX rule—exceed the normal scope of discrimination claims. The scholars warn that these claims don’t just seek equality between different categories of people; they challenge “the truth and reality of one of those very categories itself.” The “archetypal redefinition of man and woman” is “indeed the abolition of man and woman.” These scholars caution courts against adopting the premise of gender identity—that a person’s sex is determined in their psyche. “[T]his prejudges the basic framework of a case,” “undercutting . . . metaphysical neutrality” and putting a thumb on the scale for one side.
The Biden administration claims that the Supreme Court’s holding in the Title VII employment case Bostock v. Clayton County justifies its redefinition of sex in the Title IX rule. However, the court expressly stated in Bostock, “we do not purport to address bathrooms, locker rooms, or any law or policy beyond Title VII.”
Clearly, neither the courts nor the federal government have the competence or authority to decide the nature of reality. A student may experience genuine distress over his body, and the government can seek to accommodate him. But what the government must not do is impose a political answer to a question that is fundamentally metaphysical and normative.
No human law can change reality. But by seeking to defy reality, the Biden–Harris administration is putting politics ahead of the well-being of 50 million students by jeopardizing their safety, privacy, and freedoms of speech and conscience. If the cases challenging the Title IX rule return to the U.S. Supreme Court, the justices should take care to ensure that students and educators can continue to learn and work according to reality.
Man-made positive laws should follow the laws of nature. Americans cannot bear the load of the government’s latest attempt to defy reality. And the courts should ensure that we won’t have to.
Image by merly69 and licensed via Adobe Stock.
