Now that the public comment period for President Joe Biden’s Title IX revisions has ended, schools can expect the administration to begin enforcing its sweeping and radical redefinition of the statute after the Education Department has read and possibly responded to the comments submitted. In the meantime, the states can and must make it clear that they will resist any such enforcement on the grounds that the guidance is an unconstitutional abuse of executive authority.
Biden’s Title IX guidance would be disastrous for the education system. It would force school administrations to incorporate gender ideology into their policies and affirm students’ chosen “gender identity” regardless of the consequences — the most obvious being the invasion of girls’ sex-exclusive spaces, such as restrooms and sports teams. It would also undermine students’ right to free speech and due process and deputize school officials to override parental prerogatives.
These are reasons enough for states to stand up to what the administration is trying to do. But state leaders also have the Constitution on their side: Biden’s Education Department simply does not have the authority to rewrite a legal statute via administrative fiat. If the president wants to make these kinds of sweeping changes, then he needs to go to the only branch of government with the power to make them happen: Congress.
The Education Department tried to claim that it was within its rights to redefine Title IX because of the Supreme Court’s Bostock decision, which held that an employer who fires an employee for being transgender has committed sex discrimination in violation of Title VII of the Civil Rights Act. But the court neither reinterpreted sex to include “gender identity” nor established “gender identity” as a protected class, as Biden’s Title IX guidance does. Moreover, the court made it clear in Bostock that its decision should not “sweep beyond Title VII to other federal or state laws that prohibit sex discrimination” — Title IX included.
Many state leaders recognize the illegality of Biden’s regulation and are gearing up to oppose it. The attorneys general of Texas, Montana, and Indiana have written to the Education Department to warn Biden that there will be legal challenges to the rule if he tries to enforce it. The Ohio State Board of Education is considering a proposal that would empower local schools to defy the guidance. Florida Education Commissioner Manny Diaz Jr. told superintendents and school boards throughout the state that they are under “no obligation” to adhere to the guidance. And Louisiana Superintendent Cade Brumley told his education officials much the same, informing schools and athletic associations in a letter that Biden’s rules are not “binding” nor “enforceable.”
“Therefore, school systems should not alter their local policies or procedures based solely on these overreaching guidance documents,” he wrote.
This is an excellent start, but what we really need is a full-blown mutiny. The president cannot be allowed to abuse his authority and force a radical ideology on to the public just because he wants to. The executive branch’s power is checked for a reason. If Biden will not respect the boundaries of his authority, then the states must remind him that he has no choice.
Kaylee McGhee White is the deputy editor of Restoring America for the Washington Examiner and a visiting fellow at the Independent Women’s Forum.
