Biden’s Title IX Changes Are a War on Both Genders: Josh Filler

In August, the Department of Education under the Biden administration will implement its 1,500-page rule on sex discrimination in education. The rule will apply differently to any institution, from kindergarten to graduate school, that accepts federal funding. At the heart of the new rule is the Biden administration’s redefinition of “sex discrimination” and “sex-based harassment” to include “gender identity.” The new rule is a triumph of the administrative state over the democratic process and an attack on our federal system, freedom of speech, freedom of religion, due process, parental rights and equal opportunity.

The Biden administration’s new rule overrides former Trump Education Secretary Betsy DeVos’ 2020 Title IX rule, which did not include gender identity as part of sex discrimination or harassment, and ensured those accused of sexual misconduct received due process . Any covered institution that violates the Biden Rule could be investigated and punished, putting their federal funding at risk, creating a powerful incentive to comply and enforce the regulations against the respective students, faculty, and staff.

The rule is administrative lawlessness that violates the plain text of Title IX and two federal court opinions, both^e and the 11^e circuits, which rejected the idea that the statute covers gender identity. In short, in the name of enforcing Title IX, the government is guilty of a blatant violation of its express terms. In doing so, it circumvents the will of Congress, which has rejected numerous attempts over the past decade to redefine sex and codify gender identity into law.

The new rule unlawfully takes away the role of the states by attempting to override the laws in at least 21 of these states, and by threatening to withhold federal funds if the states do not comply. This includes avoiding state laws regarding sexual harassment, use of public restrooms, sports, and parents’ right to know about a child’s desire to “gender transition” at school. Such federal coercion of the states violates the Tenth Amendment.

The Biden regulation denies due process to anyone accused of violating its provisions by reviving and further strengthening Obama-era kangaroo campus courts. This includes, among other things, revoking a suspect’s right to a live hearing, the right to legal advice or an advisor, the right to cross-examine the prosecutor or other witnesses, the right to bring in experts and certain factual witnesses law, the right to fair access to all evidence, protection against a school’s use of one person to investigate, fact-find and adjudicate a case, and the right to have investigations commence with a written accusation.

These unconstitutional due process violations have been and will be most often used against boys and men accused of sex-based harassment, especially as the Biden administration has expanded its definition to include a wide range of behaviors, some of which can be rude or unpleasant are. but nevertheless well within the legal limits of the law and the Supreme Court.

The Trump administration had defined sex-based harassment under Title IX, in accordance with Supreme Court precedent, as “(u)nwelcome conduct that is determined by a reasonable person to be so severe, pervasive, and objectively offensive as to make a person effectively equal denies access to the recipient’s rights. educational program or activity.” The Biden administration is rejecting the Supreme Court’s ruling and instead broadening the definition to require that the conduct be serious or pervasive, not both. Instead of denying equal access, it is only allowed limitation such access.

The new rule violates the First Amendment by requiring students, teachers, and administrators to use the preferred pronouns of other students, even those who are “nonbinary,” meaning their pronouns change by the day or even by the day. hours can shift. Such coercive speech by the government has long been considered unconstitutional by the Supreme Court. Moreover, the rule will silence students and teachers when it comes to discussing and debating controversial issues such as gender ideology, same-sex marriage, religious freedom, etc. Few will want to risk offending other students and then face the Soviet-style show trials required under the new rule.

The late Justice Ruth Bader Ginsburg once wrote that when it comes to men and women, “separate places for undressing, sleeping, and performing personal bodily functions are permitted, and in some situations required, with due regard for individual privacy.” Individual safety could be added to that list, especially for women. The new Biden Title IX rule ignores this fundamental truth by requiring academic institutions to allow men who identify as women onto female sports teams and into female locker rooms and bathrooms. Ironically, the ordinance will make it easier to falsely accuse innocent young men of sexual misconduct, while simultaneously opening the doors for actual predatory men to attack girls and women in women’s locker rooms and restrooms.

Pitching boys and men against girls and women in sports deprives those girls and women of the opportunity to compete, by denying them a place on the team roster, and the opportunity to succeed, by denying them the opportunity to stand on the winners podium. . In other words, the driving force of equal opportunity for girls and women behind the passage of Title IX is being sacrificed on the altar of gender ideology to give boys and men the opportunity to compete on their behalf. If carried to an illogical conclusion, Biden’s policies could result in a girls basketball team made up entirely of boys who identify as girls.

There is little doubt that a hostile legal environment awaits the Biden administration’s Title IX rule, especially now that the Supreme Court is poised to strike down the deference courts that the Supreme Court’s Chevron Doctrine requires to grant regulatory relief or change. Even with such deference in mind, however, agencies are never authorized to rewrite a statute, as the Biden Education Department has done here. While the Supreme Court will ultimately determine the validity of the Title IX regulation, it will be up to the lower federal courts to prevent this administrative monstrosity from ever seeing the light of enforcement.