DOJ: SCOTUS Transgender Ruling Will Not Affect Women’s Sports, Bathrooms Unless Congress Rewrites Title IX

Vanderbilt players relax with a game of charades in the team locker room before practice for a second-round game in the women's NCAA college basketball tournament in in Storrs, Conn., Sunday, March 24, 2013. Vanderbilt will play Connecticut on Monday. (AP Photo/Jessica Hill)
AP Photo/Jessica Hill

Mainstream activists are cheering a justice department memo that says the Supreme Court’s pro-transgender decision in 2020 does not apply to single-sex sports, education practices, and sexual privacy.

“The Department’s regulations recognizing the male/female biological binary [in athletics] carry extra weight and interpretative authority because they were the product of uniquely robust and direct Congressional review,” says the January 8 memo, titled “Memorandum for Kimberly M. Richey.”

“[B]ased on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term ‘sex’ in Title IX to mean biological sex, male or female,” says the memo, which was signed by Reed Rubinstein, the department’s principal deputy general counsel. “Congress has the authority to rewrite Title IX and redefine its terms at any time [and] To date, however, Congress has chosen not to do so, ” said the memo, which was sent to Kimberley Richey, the acting assistant secretary for civil rights.

Federal law “permits schools to provide separate bathrooms, locker rooms, and showers ‘on the basis of sex,’ as long as the school provides comparable facilities for ‘each sex,'” the memo says. “Therefore, we believe the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing ‘separate toilet, locker room, and shower facilities on the basis of sex’ to regulate access based on biological sex,'” says the memo.

The memo is a response to Judge Neil Gorsuch’s June 2020 vote in the June 2020 Bostock v. Clayton County court decision. Gorsuch joined with the bloc of progressive justices to declare that Congress’s 1964 law against workplace sexual discrimination also endorsed the recent claim that each person’s “gender identity” should be more legally important than their biological sex.

The memo will help Americans block the efforts by pro-transgender activist groups to remove government recognition of the two sexes. For example, these groups have persuaded Democrats in Congress to adopt sex-less “gender” terminology in place of traditional terms such as “father” and “mother.”

“We are grateful that there is further clarity into what Title IX [sex discrimination law] means and what it does not,” said a statement from Save Women’s Sports.

“Allowing males to compete in female sports is not progressive; it is abusive,” the group, run by female powerlifter Beth Stelzer, asserted.

Single-sex sports “are essential,” the organization continued. “Sports should not be the platform for political ideologies that would destroy the definition of female sports… The Save Women’s Sports team will continue to fight for fair sports and safe locker rooms for females. “

The department’s memo was denounced by groups that deny the importance of the two sexes’ different biologies. For example, the Human Rights Campaign issued a January 11 statement saying:

The new guidance categorically denies that Bostock applies to Title IX despite the clear words of the majority opinion that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

During the 2020 campaign, President-elect Joe Biden embraced the radical “transgender’ claim that the government should treat each person’s biological sex as subordinate to their claimed “transgender” cross-sex status.

In practice, the transgender claim eliminates single-sex institutions — such as female-only jails for women, female-only sports leagues, female-only changing rooms, and showers — because it says any man can claim a female legal identity without even undergoing surgery or dressing in stereotypical female appearance.

If that view is adopted by the court or Congress, men will be able to call the FBI to force women to accept their claim of female identity.

Biden has repeatedly said he will support men’s claim to female identity and women’s claim to male identity.

“I will flat out just change the law — I will eliminate those Executive Orders,” Biden said October 15, during a televised town hall meeting when he was questioned by the mother of a woman who said her young child is transgender.

Biden is expected to use his regulatory powers in government agencies to enforce that view. For example, he has said that men should be allowed to stay in women-only prisons if they claim to have a female “gender identity.”

He has also announced his opposition to Trump’s Pentagon rules. Trump’s rule does not bar people who claim to be transgender but do require each service member’s recorded “gender market” to match the “bright line’ of their biology. A 2018 Pentagon report set the policy, saying:

Low rates of full sex reassignment surgery and the otherwise wide variation of transition-related treatment, with all the challenges that entails for privacy, fairness, and safety, weigh in favor of maintaining a bright line based on biological [male or female] sex — not gender identity … After all, a person’s biological sex is generally ascertainable through objective means.

But Biden’s opposition will allow men to registers themselves as women in the military’s records as women. Once that change is made, female service members would have to submit to the men’s demands to be addressed as women in accommodations, promotion, fitness requirements, and the showers.

Transgender people comprise far less than 1 percent of the population, and very few men — and servicemembers — who declare they are transgender undergo genital surgery.

Currently, few GOP legislators publicly support the popular view that laws should recognize the inherent distinctions between men and women or girls and boys.


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