Nearly two dozen Republican attorneys general are demanding Joe Biden’s Education Secretary Miguel Cardona not destroy women’s sports by mandating the trans agenda, insisting instead that Title IX protects biological females in school.
As part of Biden’s LGBT agenda, Cardona issued a notice of proposed rulemaking (NPRM) – the first step in the federal regulatory process – to interpret Title IX of the Civil Rights Act to say that schools must allow students to join the athletic teams of whatever gender they claim to identify with. The nation has seen how that policy plays out in the states and localities where it has been implemented.
Republican AGs sent five letters, one each from Kris Kobach (KS), Lynn Fitch (MS), Tim Griffin (AR), Todd Rokita (IN), and Jonathan Skrmetti (TN) as part of the rulemaking process, opposing Biden’s proposed regulation. These letters read like court briefs, and each makes different points, effectively coordinating legal and policy arguments against the Biden administration’s push toward mandating that biological males can compete against biological females in women’s sports. This push from Biden’s far-left base has resulted in young women who are college and high school athletes who were poised for championships – and for many of them, college scholarships – instead finishing behind young men who had greater physical size, strength, or lung capacity.
A dozen additional GOP AGs signed each of these letters, while each of the authors also signed onto each of the others.
About 18 states in the union have banned transgenders in women’s sports or have begun initiatives to ban transgenders in women’s sports. https://t.co/Z8zdJ7JiNL
— Breitbart News (@BreitbartNews) May 9, 2023
These letters become an important part of the official record for the inevitable legal challenges to Biden’s forthcoming Title IX rule. The new regulation will be challenged under the Administrative Procedure Act (APA), in addition to other federal laws. Among other things, a rule can be challenged under the APA if the rule is contrary to law or is arbitrary and capricious. Agencies are required to respond as part of the its record to all significant comments the agency receives.
These letters will force the Education Department on the record on these issues, all of which must be considered by the federal courts who will hear and review the upcoming challenges. A failure to respond on the record is legal grounds for a court to hold that the rule is arbitrary and capricious, requiring the court to strike down the regulation.
“Biological men and women have genetic differences – that’s just a scientific fact,” said Virginia Attorney General Jason Miyares, one of the AGs who signed these letters. “Many of those biological differences often lead to men being taller, stronger, and faster – therefore putting them at an athletic advantage.”
“That’s exactly why we have women’s sports, and why Title IX exists – to create an environment where our female athletes can thrive, be competitive, and be celebrated,” Miyares added. “The federal government is once again overstepping Congress and the individual states by forcing every public school to allow biological boys to play on the girls’ teams, threatening the future of women’s sports and disregarding the privacy and safety of teenage girls.”
A Washington Post-KFF poll found that the vast majority of Americans oppose the idea of allowing males to compete in women's sports. https://t.co/D4UOdNkXGN
— Breitbart News (@BreitbartNews) May 7, 2023
This legal challenge would likely end up in the Supreme Court, due to the court’s controversial Bostock decision, which held that Title VII’s prohibition on sex discrimination in the workplace includes transgender individuals within the term “sex” in the statute. Bostock included vigorous dissents of from conservatives like Justice Samuel Alito.
Title IX likewise uses the word “sex.” Conservative judges are expected to explain why “sex” has a different meaning in the context of teenage and college sports, and related settings like school locker rooms and shower facilities, while liberal judges are expected to say that Bostock’s Title VII definition must extend to Title IX as well. This would create what is called a “circuit split” that would require Supreme Court action to resolve nationwide.
Such a challenge could easily land on the Supreme Court’s calendar in late 2024 in the middle of the presidential election.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.
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