“There are Two Sexes, Male and Female” – Federal Judges Block Biden’s Radical Title IX Rewrite

“There are Two Sexes, Male and Female.”

With those seven simple yet profound words, a federal judge in Kentucky has at least temporarily blocked the Biden Administration’s radical executive rewrite of the landmark 1972 Title IX legislation that was rightly passed by Congress to prevent sex discrimination against women and girls in education and sports. He is the third federal judge so far to halt Biden’s brazen intent to ramrod the leftist gender ideology of the Democratic Party throughout every level of our education system and beyond.

You may recall I wrote to you on April 24th of this year, (and also discussed this in an op-ed for the Magnolia Tribune) detailing how the new executive rewrite essentially erased equal rights and opportunity for women under Title IX by re-defining “sex” to include “gender identity.”

The new guidelines put the rights of males who identify as transgender or non-binary ahead of women and girls. Among other things, girls and women would be forced to undress in front of men and boys in what were formerly their private spaces, males would be allowed to undress in front of females, and men and boys would be able to play on girls’ and women’s sports teams—and that’s just the beginning of the insanity.

The first thing you need to know is this: the Biden administration’s radical rewrite is a clear violation of the foundational Separation of Powers doctrine derived from the clear meaning and text of the Constitution.

As we all learned in grade school or from the childhood Saturday morning cartoon, “I’m Just a Bill,” the Constitution divides the federal government into three separate branches with clearly-defined and separate duties: the legislative branch (Congress) makes the country’s laws, the executive branch (President) enforces the laws (and may promulgate rules to enforce the law), and the judicial branch (courts) interprets the laws. This doctrine of “separation of powers” distributed the power among these three branches and built a system of checks and balances to ensure that no one branch could become too powerful.

However, with the Biden Administration’s ever-increasing attempts to overreach in its administrative rule-making authority, such as in this case, the executive branch has repeatedly crossed the line into making our nation’s laws, not merely enforcing them.

Fortunately, the courts are increasingly recognizing and addressing this almost tyrannical power-grab.

• On June 17th, Chief Judge Danny Reeves of Kentucky issued a temporary injunction that halted the Biden policy in six states: Kentucky, Indiana, Ohio, Tennessee, Virginia, and West Virginia. In a 93-page opinion, Judge Reeves agreed with Plaintiffs that “the new rule contravenes the plain text of Title IX by redefining ‘sex’ to include gender identity, violates government employees First Amendment rights, and is the result of arbitrary and capricious rulemaking”—he referred to the radical regulation as “arbitrary in the truest sense of the word.”
• On June 13th, another U.S. District Judge, Judge Terry Doughty of Louisiana, issued a temporary injunction that blocks the Title IX re-write from taking effect Aug.1st in four states: Idaho, Louisiana, Mississippi and Montana. Judge Doughty stated in his opinion that, “This case demonstrates the abuse of power by executive federal agencies in the rulemaking process. The separation of powers and system of checks and balances exist in this country for a reason.
• ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.’ Montesquieu, The Spirit of the Laws (1748).” 
• On June 11th, a Texas federal judge, Judge Reed O’Connor, strongly stated in his opinion that the Biden administration lacked the authority to rewrite the definition of “sex” in Title IX and accused it of pushing “an agenda wholly divorced from the text, structure, and contemporary context of Title IX.” In other words, the executive branch is not authorized to legislate—that is solely the job of Congress, and the definition of “sex” must be interpreted to mean what the drafters of the 1964 Civil Rights Act would have intended at that time and in 1972 when the Title IX Amendment was added.
• No serious or honest person would propose that lawmakers in 1964 or 1972 intended “sex” to include “gender identity.” In fact, until five minutes ago, everyone in every culture in all of human history understood that “there are two sexes, male and female.” Judge O’Connor further stated, “Thus, to allow Defendants’ unlawful action to stand would be to functionally rewrite Title IX in a way that shockingly transforms American education and usurps a major question from Congress. That is not how our democratic system functions.”

A total of seven lawsuits to date have been filed across the country contesting the Title IX rewrite by a total of 26 states. (The other states include: AL, FL, GA, SC, AR, MO, IO, NE, ND, SD, KS, AK, UT, WY, and OK; no decision has been made in the suits brought by these states.)

The three decisions discussed herein will likely be appealed to their respective circuit courts, setting up the strong possibility that this issue will eventually make it before the Supreme Court. Until then, the new Title IX rewrite will not be enacted or enforced in these plaintiff states.

Thank you to our conservative Mississippi lawmakers who passed (1) the Fairness Act in 2021 preventing males from competing in female sports, and (2) the SAFER Act this past session, both of which give Mississippi an even stronger basis to push back on this radical agenda.

We will keep you posted. In the meantime, please reach out if you have any questions. Thanks for reading and for your support! We are grateful.

– Lesley