Bad Sport: After Losing in Congress, Biden Rigs the Game

April 12, 2022

The Biden administration appears to be auditioning for a guest appearance on "Whose Line Is It Anyway," the game show where everything is made up, and the points don't matter. The Department of Education has proposed a new rule to effectively rewrite Title IX, transforming it from an instrument to protect women into a cudgel for unchivalrous males to beat them with.

The Biden administration's proposed rule would "expand the definition of 'sex,'" explained former Education Secretary Betsy DeVos, until it is "basically unfettered, untethered." Pretty little birds -- the inevitable, anonymous leakers -- informed the Washington Post the proposed regulation redefined "sex" to include "sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity." In other words, it will mean everything and nothing.

It's not as if the law is unclear. Title IX states, "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." No sex-based discrimination in education. "All have understood [it] to mean biological sex since Title IX was passed in 1972," DeVos remarked. Title IX exists to protect women.

But now, suddenly, approximately half of the Washington political class seems to have undergone a collective memory wipe that erased all comprehension of the word "woman." Not senators, not executive agencies, not our newest Supreme Court Justice -- specifically chosen because she was a "black woman" -- can (or will) perform a task simple enough for any 8th grader with a dictionary -- defining the word "woman." "I'm not a biologist," was the excuse, but that's a wretched reason to reject biology. "The only science they really are following is the political science," said DeVos.

Another term seemingly lost in a haze is "legislative powers," which are the exclusive preserve of Congress, constitutionally speaking. Anything Congress could pass into law, if it wanted to, belongs to legislative powers. In bills like the wrongly named "Equality Act," Congress regularly considers (and has, so far, always declined to codify) civil rights law revisions to include special privileges for sexual orientation and gender identity. In other words, if Congress wanted to create special privileges in civil rights laws (like Title IX), they could. But they haven't. Yet the Biden administration is pretending the law has contained such provisions for fifty years.

It is, admittedly, quite frustrating for a tenured bureaucrat with "a pen and a phone" to respect quaint, benighted notions like "separation of powers," "checks and balances," or those ever-pesky "elections" that constrain him from inflicting his experimental whims upon the compliant masses. On this point, the Biden administration, in particular, suffers from a sluggish memory, which the Supreme Court's repeated knuckle raps (on the eviction moratorium and vaccine mandate) have done nothing to jog. But forgetfulness is no excuse for getting the wrong answer.

Not only does the Biden administration's proposed rule nationalize education policy in a way Congress never imagined, it also distorts that policy into a shape odious to most parents. For instance, the proposed rule would nationalize the Loudoun County bathroom policy that enabled sexual assault.

The proposed rule's most hated outcome is that "it would effectively kill women's sports," as DeVos, herself a former competitive swimmer, warned. Title IX offers female athletes a level playing field -- against other females. If they were forced to compete against males, who are, on average, bigger, taller, stronger, and faster, few women would choose to compete. More than a dozen state legislatures have passed or advanced bills to protect women's sports from male encroachment -- including bills this month in Tennessee and Kansas -- which the Biden administration likely seeks to nullify with its executive action. But the administration cannot simultaneously say "all women should have equal opportunity" and "an individual who is a biological male can decide to compete as a woman," argued DeVos. "That Venn diagram doesn't intersect."

Alas, everything appears to intersect once you fall down the postmodern rabbit hole that founds identity and reality in fickle feelings. Once there, "truth" and "law" mean no more than the term "woman."