True to form, the Biden Department of Education has overstepped the bounds of law and common sense with its Notice of Interpretation issued this week. As promised in one of the very first Executive Orders signed by President Biden, girls will lose protections to biological boys presenting as girls in public schools if schools abide by this “guidance” from Washington.
FRC warned in our testimony regarding Title IX last week that “[t]o interrupt the bond between parents and children, to insert oneself between a custodial parent and his or her child for any reason, is unnatural and unacceptable.” The Biden Administration, through the actions of Education Secretary Miguel Cardona and Acting Assistant Secretary for Civil Rights Suzanne B. Goldberg have proudly and shamelessly crossed that line.
The action was characterized to me this way by a former Trump administration official: “The Department of Education is attempting to circumvent the rulemaking process by issuing a notice to redefine sex for purposes of Title IX instead of going through public notice and comment on this issue.” In other words, why bother to follow the rules of good governance when you can just issue an edict?
The notice relies heavily on tortured interpretations of Bostock v Clayton County that attempt to apply Title VII to Title IX. The radicals in charge at the Department of Education believe that “on the basis of sex” means that the definition of “sex” includes sexual orientation and gender identity. This is in spite of wording from Justice Gorsuch in Bostock that reads, “We proceed on the assumption that ‘sex’ signified … biological distinctions between male and female.”
During the last days of the Trump administration, guidance issued by the Office for Civil Rights at the Department of Education had indicated that generous interpretations of Bostock should not lead to expanding Title IX to include gender identity. But even that effort was not enough to prevent the endless problems the Bostock decision and the transgender movement created rather than solved.
Biological sex is central to the protections guaranteed by Title IX for women and girls. By ignoring biological sex, girls will now be forced to share intimate spaces with boys who “identify” as girls; forced to compete on sports teams with boys who are in many cases faster and stronger; forced to share living quarters with males who identity as female. All that is bad enough, but the silencing of voices who protest such situations is even worse. Girls who protest being seen changing for gym class by a boy (who identifies as a girl) will be disciplined for not accepting the identity of the transgender student. Rather than be protected, girls will be told their instincts are wrong.
The same of course is true for boys. They too will have to deal with opposite sex students in their locker rooms. And then there are parents. What does this mean for parents whose children go to public school?
For parents, the need to know what’s happening at your local school, whether public or private, has never been greater. Administrators can now feel free to keep duplicate records for transgender identifying students, one for the “affirming” school officials, and another set for the “prying eyes of parents” who do not agree with gender identity. It will be up to parents to make sure that their school board does not take this Notice of Interpretation as carte blanche to remake your community’s schools.
Pray about this. Talk to your friends and neighbors. Be active in your school and in your children’s education. Maybe you need to run for school board or be an active support for good folks who do. Get to know your school board member and superintendent. They work for you, not the bureaucrats issuing this Notice of Interpretation. Schools still belong to state and local governments. Do what you can to make sure yours is free from this dangerous nonsense and safe for all.