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Opinion

Title IX rules: tyrannical fiat

When Washington bureaucrats shove their views on us by imposing new rules and new laws, blame Congress for giving the unelected wonks so much power.


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Article I, Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article II, Section 1: The executive Power shall be vested in a President of the United States of America. Section 3: … he shall take Care that the Laws be faithfully executed …

U.S. Constitution


By now, it goes without saying — but we’re going to say it anyway — anything Sarasota County School Board member Bridget Ziegler proposes is going to be vilified, tarred, spat upon. Just her name brings convulsions to her opposition. 

But if you can be open-minded for several minutes, try to put aside the person who proposed what became a controversial resolution at the May 7 Sarasota County School Board meeting. 

The resolution was titled: “A resolution … to commit that no policy or procedural changes shall take place or be considered in response to the April 19 Title IX rules changes.” The accompanying box spells out the specifics of that resolution.

This resolution came in response to the U.S. Department of Education issuing a 1,577-page amendment (essentially, new rules and regulations) to the Title IX law that Congress adopted and the president signed in 1972. That law, most of us know, says:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

That’s the law that essentially required all schools receiving federal funds to offer classes and sports in equal levels to boys and girls and men and women.

But as of April 19, the policy bureaucrats in Joe Biden’s Department of Education decided to change the law. 

Did you get that? Bureaucrats decided they would make law. Congress did not.

Now, before we get into the farce behind this rule change, the fact unelected Department of Education bureaucrats decided to make new law should make your blood boil. That is one of the most annoying aspects of Washington politics — how the unelected political, bureaucrat class floods us every day with wealth-sapping, liberty-killing rules and regulations. 

Who do they think they are?

Take special note above, for instance, of the first sentence in Article I of the U.S. Constitution: “All legislative Powers herein granted shall be vested in a Congress … ”

Nowhere in the Constitution is there one letter giving law-making authority to the hired help.

But alas, Congress is the guilty one. It has been and is indeed stupid enough and lazy enough to abdicate the details of new legislation to the unelected political class.

For more than 100 years, this is how it has worked. Our elected representatives have voted for thousands of supposedly magnanimous laws intended to improve our lives (Ha!) and then told their staffs to make the rules and enforce them. 

The devil indeed is in the details.

There it is: “20 U.S. Code, 1682 — Federal administrative enforcement.” That federal code “empowers” and “authorizes” “each federal department and agency” “to effectuate” (enact) Title IX “by issuing, rules, regulations or orders of general applicability … ” And whatever rules the D.C. wonks want, all they need is presidential approval. Congress’ approval is not required.

This is tyrannical fiat.

This is letting 3-year-olds run loose in a candy store. Every day is a play day — another day to suck up millions of Americans’ tax dollars, spending hours and weeks writing 1,577 pages of new rules and law to alter the social construct of this nation to reflect their view of the world. In this case, it means declaring that the word “sex” in the 1972 Title IX law does not mean biological sex. For them, a person’s biological sex now encompasses sexual orientation and gender identity. 

It means, frankly, Biden’s Department of Education wonks have declared it is legally acceptable for men who think they are women to participate in women’s sports and shower in women’s locker rooms. 

And it means so much more. The devil is indeed in the details.


A 15-year campaign

In a lawsuit attempting to stop implementation of the new rules, 15 attorneys general, including Florida’s Ashley Moody, have illuminated how the move to upend 40 years of accepted legal and social norms came about. It didn’t start with Biden. It started with Barack Obama’s promise to transform America.

This has been a relentless, 15-year campaign. 

Starting in 2009, shortly after Obama’s inauguration, “Through guidance and aggressive investigations, that administration tried to expand Title IX to include gender identity, broaden the scope of actionable sexual harassment and relax procedural protections for the accused,” the AGs’ lawsuit states.

One of the administration’s legislative attempts occurred in 2013. A bill to extend Title IX’s sex-based provisions to gender identity came before the House of Representatives. The attorneys general lawsuit reports: “According to the ‘findings’ section of that proposed law, congressional action was necessary because ‘federal statutory protections expressly address discrimination on the basis of race, color, sex, religion, disability and national origin’ but ‘do not expressly include sexual orientation or gender identity.’” The bill failed.

A year later, the Department of Education’s civil rights division attempted a work-around toward its goal, proclaiming in a “guidance” document that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity and sexual orientation.”

The next year, in 2015, another bill came before Congress attempting to make official law what the civil rights division declared. “The bill was nearly identical to the one that failed in 2013,” the attorneys general lawsuit states. But “once again, Congress did not pass the legislation.”

Not once, but twice, Congress presumably expressed the will of the people: No.

Nevertheless, according to the AG lawsuit, “As the failed attempts to amend Title IX piled up, so did the pressure from outside groups demanding that the government change Title IX through unilateral executive action.”

 In May 2016, nearing the end of the Obama administration, the Department of Education issued a “Dear Colleague” letter to schools taking federal funds. The letter said the department would “trea(t) a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” 

It told school administrators “because a student who asserts a female gender identity must be treated identically to a biologically female student under Title IX, any attempt to restrict shower, bathroom or locker-room use according to biological sex would be unlawful. It also warned schools that failing to ‘use pronouns and names consistent with a student’s gender identity’ constituted unlawful harassment under Title IX.”

Once again, new law by presidential and bureaucrat fiat.

Thirteen states sued, alleging that the 2016 letter was unlawful under the Administrative Procedure Act. A Texas court agreed and issued a temporary injunction.

In their current lawsuit, the attorneys general cite nine other lawsuits where the courts repeatedly have affirmed that the word “sex” in Title IX “was widely understood to refer to immutable, biological differences between males and females.” 

As far back as 1982, an Arizona court warned, “(D)ue to average physiological differences, males (will) displace females to a substantial extent if they (are) allowed to compete” in women’s sports, and “athletic opportunities for women (will) be diminished.”

Three years after the adoption of Title IX, even the late liberal Supreme Court Justice Ruth Bader Ginsburg, then a college professor, wrote an op-ed in the Washington Post “advocating for constitutional guarantees of the privacy rights recognized by Title IX,” the AG lawsuit says. Ginsburg: “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” 

Two years after that, the U.S. Commission on Civil Rights concluded “the personal privacy principle permits maintenance of separate sleeping and bathroom facilities” for males and females under Title IX.

And in a 2023 lawsuit challenging the Biden administration’s interpretation of Title IX, the court ruled: “(T)he government has repeatedly issued guidance to the public at odds with the interpretation it now asks us to adopt. And surely that counts as one more reason yet to question whether its current position represents the best view of the law.”

The sum of all these rulings is the courts have sided with the original view of Title IX — that sex discrimination is about biological sexes, males and females, and not gender identity.

The Trump administration held to that view as well. In May 2020, it rejected a request “to treat gender identity the same as biological sex and to subject students to formal discipline for failing to use a classmate’s preferred pronouns.”


Ignoring Congress

But after Biden started in 2021, the efforts that started with Obama revved up again — this time more aggressively and ignoring Congress.

In June 2021, the Department of Justice Civil Rights Division and the Department of Education issued a fact sheet that declared it discriminatory under Title IX for schools to exclude transgender students (particularly transgender girls) from participating in school sports or excluding them from school bathrooms in line with their gender identities; and also said failure to use transgender students’ names and pronouns is discriminatory.

The fact sheet went even further. It removed innocent-until-proven-guilty protections for the accused in sexual harassment cases — the right to present witnesses; to inspect the evidence against them; and to a live hearing.

Once again, Republican state attorneys general sued, with the judge in the case eventually granting the AGs a temporary injunction against enforcement.

The Biden administration appealed; that suit is still ongoing. 

But at the same time that “fact sheet” lawsuit was underway, the Department of Education was proceeding to write its new rules, including once again that sex discrimination encompasses gender identity and sexual orientation.

As per law, these new rules required a period for public comments. The public had a lot to say. 

According to the AG lawsuit, the Department received more than 240,000 comments — “the vast majority of which were negative.” “(S)ignificant opposition (came) from concerned observers spanning both sides of the aisle, numerous major faith groups and generations old and new,” the AG suit says.

Despite the preponderance of court cases rejecting the department’s views and despite public opposition, on April 29, the Department of Education issued its “final rule” and declared the new regulations will go into effect Aug. 1. Any school that violates the rules will be subject to losing its federal funding. Clearly, billions of dollars are at stake around the country.

Meanwhile, the attorneys general lawsuit to stop the new rules is awaiting a July 1 hearing in U.S. District Court in Northern Alabama.


Shakedown organization

Everyone would agree discrimination of any sort is wrong. What’s more, common sense would tell us it’s not right or wise as a society to make a law requiring men wanting to be women be granted legal right to use female bathrooms and locker room showers. 

It’s worse, however, when unelected Washington bureaucrats make such a law — and equally bad that Congress is letting this unconstitutional activity occur.

All of which leads to what should be obvious: This Title IX dispute demonstrates the too-often overreach of the federal government. 

Just what good does the Department of Education actually do?

If you think it through, the department is just an interventionist, wealth-transferring, shakedown organization that takes $80 billion a year from U.S. taxpayers; siphons about $2 billion a year in salaries for 4,400 employees (whose average salaries, by the way, are $112,725 a year); and then redistributes billions of dollars back to the states and congressional members’ and presidents’ special-interest schools and groups. 

But there is a catch: To get the money, you have to follow the Department of Education’s rules — rules that cause taxpayers to waste more millions in legal bills for our governments to fight each other.

None of this horrible waste — not to mention, local school board resolutions — would occur if our elected representatives had the courage to do what they did in 1868 — eliminate the Department of Education.

Education should be the sole domain of the private sector. Government intervention at every level of education, demonstrably, has produced the rotten fruit that has splattered across our country today.

Go ahead, dismiss the Sarasota School Board’s Title IX resolution as political grandstanding. But more people need to speak out against tyrannical fiat.  

 

author

Matt Walsh

Matt Walsh is the CEO and founder of Observer Media Group.

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