In April 2024, the U.S. Department of Education released a finalized version of the regulations to be followed in ensuring Title IX non-discrimination protections in education, to go into effect at the beginning of August. Major provisions include clarifying that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. And from the reactions in some quarters, you'd think the world was ending.
Such accusations are nothing new. In May 2016, for instance, various schools and parents were seeking information from the federal government on policy regarding transgender students, so the Departments of Education and Justice responded with guidance reiterating their existing stance that schools receiving federal funds may not discriminate. All quite simple, straightforward, and unremarkable. Or, at least, it should have been.
But that's not how some took the news. At least one commenter (who was neither transgender nor a student) objected by characterizing this as Obama (who wasn't directly involved) making it his "prime priority" (by responding to a frequent question) to "direct us which bathroom to use" (by advising against kicking people out of bathrooms). It's remarkable how glaring the levels of hyperbole and dishonesty surrounding the issue often are.
This time around, a variety of anti-equality government officials, hate groups, and theocratic movements (but I repeat myself) are taking preemptive action against the department's rule clarifications before they even go into effect, suing for injunctions to allow arbitrary discrimination in defiance of the rules. Many are publicly calling this a matter of women's rights and safety.
Which is curious if you take their arguments at face value, given that in other contexts, these same people and groups have been at best indifferent to, but more often actively opposed to, women's rights and safety. Not to mention that actual women's rights groups disagree.
Regardless, these efforts have found traction with several powerful conservative judges, and their rulings have already banned enforcement in at least 11 states, starting with Texas. Largely relying on faulty understandings of both biology and sociology, these judges have made of habit of claiming that the administration is capriciously "redefining sex" or committing an "abuse of power", and one went so far as to groundlessly call the clarifications "arbitrary in the truest sense of the word" (which is ironic given that, although meanings have of course shifted over the centuries, the original sense of an "arbitrary" decision is one decided by an arbiter, that is, a judge).
You have to wonder where they got their qualifications from and whether they pay any attention to other cases, because that's all a load of nonsense. The basis for these rule clarifications comes straight from the Supreme Court itself. The Roberts Court, in a 6-3 decision, penned by originalist, textualist, conservative, Trump-appointed Neil Gorsuch, no less.
In Bostock v. Clayton County, Georgia, originally three separate cases that were rolled into one, the court faced the question in June 2020 of whether it is legal under Title VII of the Civil Rights Act of 1964 to fire employees for being homosexual or transgender. As codified at 42 U.S.C. § 2000e-2(a)(1), it is an unlawful employment practice to discriminate against someone "because of such individual's race, color, religion, sex, or national origin". The employers argued that this law did not apply, since it makes no direct mention of sexuality or gender.
All but the three most controversial (and, at least in this writer's opinion, least qualified and most corrupt) members of the Court at the time saw things differently. "If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred."
Several examples later, the majority opinion states bluntly that the answer to whether unlawful discrimination occurred "is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."
As Title IX of the Education Amendments of 1972 uses much the same language when forbidding discrimination because of sex, the same logic necessarily applies here, as well: "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." There is no legal or rational basis for concluding otherwise.
Bostock not only justifies but effectively mandates the updated regulations.
Discrimination because of sexual orientation or gender identity is inherently and unavoidably discrimination because of sex, making it a violation of the law as written, regardless of what the Department of Education says or does. The only real change is that the administration has formally acknowledged this and announced its intent to carry out the law accordingly. As is the very purpose of the executive branch.
Turns out the "party of law and order" has a remarkable tendency to hate attempts to fairly enforce what the law actually says instead of selectively enforcing what they want it to say. As their unwavering support for the incoherent serial liar, adjudicated rapist, and convicted felon they inexplicably look to for leadership keeps loudly demonstrating.
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