In June 2020, the Supreme Court issued its opinion in Bostock v. Clayton County, erasing women (and men) from American employment law. Written by Justice Neil Gorsuch, the Bostock majority found that the legal meaning of the word “sex” in Title VII of the 1964 Civil Rights Act incorporates, at the very least, “sexual orientation” and “gender identity” as well. Anything peculiar to a woman, including biological anatomy, may now be peculiar to a man and vice versa, blending the two human sexes into one from a legal standpoint. While the naïfs of 1964 hardly realized it, their law transformed the question “What is a woman?” into a Zen koan.
Now comes the Biden administration to accomplish the same in American education. Last week, the Department of Education issued its finalized rule change on Title IX of the 1964 act, applying the same expansive definition of “sex” to every postsecondary, secondary, and elementary school in the country that receives federal funding. The fingerprints of Gorsuch are everywhere. The rule change cites Bostock nearly 70 times and insists that the DOE is merely “applying the reasoning” of the ruling to other aspects of American civil-rights law.
In one sense, Biden’s new Title IX rules are simply a return to those of the Obama administration. In May 2016, the Department of Justice and Department of Education issued a joint “Dear Colleague” letter that first legally defined “sex” as inclusive of “gender identity.” This took place at nearly the same moment the same DOJ sued the state of North Carolina over its so-called bathroom bill with Vanita Gupta, then head of the civil-rights division, proclaiming: “Here are the facts. Transgender men are men.… Transgender women are women.”
In another sense, however, there is something quite new in the Biden administration’s rule. For the first time, a de minimis harm standard will be applied to any recognition of sex differences in American education. Under this standard, only those sex-segregating practices explicitly allowed by Title IX, such as separate male and female living quarters, bathrooms, and athletic teams, and considered to inflict only trivial harms will be permitted. The DOE is careful to state that “stigmatic injuries” are prima facie violations of the de minimis standard, and that “adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity” is a harm well above the threshold. Such will be considered a violation of Title IX.
President Biden is often described as a moderate, but his administration’s approach to sex and gender has been anything but. One need only look at the language used by members of his administration—“egg producers” (Assistant Secretary of Health and Human Services Rachel Levine), “birthing people” (White House 2022 fiscal year budget), “chestfeeding” (Centers for Disease Control and Prevention), and “gender X” (State Department)—to see that Biden’s administrative employees are opposed to a biological understanding of sex. These views aren’t confined to bureaucratic functionaries, but are shared by the president himself. Despite the Scranton Joe “no malarkey” persona cultivated over a lifetime, Biden has long been a transgenderism revolutionary. As far back as 2012, nearly a year before the New York Times editorial board declared transgenderism “the next civil rights frontier,” then-Vice President Biden declared it “the civil-rights issue of our time.” Since that time, he has used this phrase often. Speaking of transgenderism during the 2020 election campaign, he insisted, “There is no room for compromise when it comes to basic human rights.” The new Title IX rules show Biden to be true to his word.
This isn’t simply a matter of ideology, however. One would be naïve to ignore electoral interests here. Biden needs young female voters this November, and despite the American right’s description of these rules as a “war on women,” women are America’s primary supporters of gender ideology. A January 2024 YouGov poll showed that the plurality position of American women (38 percent) is that American society “has not gone far enough in accepting people who are transgender.” The plurality position of men (41 percent) is precisely the opposite: namely, that American society “has gone too far in accepting people who are transgender.” While a plurality of women (39 percent) believe that “gender reassignment surgery” is “not a moral issue,” a plurality of men (44 percent) find the practice “morally wrong.” If one’s child professes to be was transgender, a plurality of women (43 percent) said they would be “very supportive,” while a plurality of men (32 percent) said they would be “very unsupportive.” A plurality of women (39 percent) even support “allowing transgender women to use women’s refuges for victims of sexual assault and domestic violence.”
Yet the same poll found that even women oppose core elements of Biden’s Title IX rules. An outright majority of them (53 percent) oppose “allowing transgender athletes to play on sports teams that match their gender identity.” A strong plurality (48 percent) oppose “allowing transgender people to use bathrooms that match their gender identity.” A weak plurality (41 percent) even oppose “allowing public schools to accommodate students’ requests to go by pronouns that match their gender identity.”
“The Biden administration is out of step with international opinion on transgenderism.”
The Biden administration is out of step with international opinion on transgenderism. As the US Department Health and Human Services leans into “gender-affirming care,” five countries in Western Europe now ban puberty blockers for minors. England’s National Health Service is set this week to purge its communications and policies of language like “chestfeeding” and “people with ovaries” indicative of gender ideology. The political maelstrom unleashed by Scotland’s 2022 gender self-identification bill has already forced the resignation of two heads of government and may bring down the entire Scottish government itself.
At least four US states, including Florida and Oklahoma, have announced they won’t abide by the Biden administration’s Title IX rule regarding gender identity, or have instructed their schools to follow state law over federal rules. But the more significant resistance is coming from American girls. This year, students in New York, Nebraska, and Virginia held walk-out demonstrations protesting their schools’ policies allowing female-identifying male students into girls’ bathrooms. In February, a girls’ basketball coach in Massachusetts forfeited a game at halftime after a female-identifying male athlete injured three of his own players. In April, at least five girls in West Virginia publicly refused to compete against a female-identifying male athlete in their county track-and-field championship.
Can the resistance of children, parents, and coaches overcome the power of billions of dollars of federal funds and the reasoning of Bostock? To John Maynard Keynes is attributed the maxim that “the market can remain irrational longer than you can remain solvent.” While reality always triumphs over the hubris of man, reality does so in its own time and in its own manner. A Biden victory in November will test the solvency of many a believer in the reality of human biology.