An executive order on LGBT rights signed by President Joe Biden on Wednesday signals the start of a bitter cultural clash that will loom large over his presidency.
Biden’s directive broaches almost every aspect of domestic policy, from housing to refugee resettlement to transgender student athletes. The order requires every federal agency to make clear that civil rights laws banning sex discrimination also ban discrimination based on sexual orientation or gender identity, citing the Supreme Court’s landmark gay rights ruling in June 2020.
Many changes resulting from Biden’s order, like a ban on anti-gay discrimination in renting, are unlikely to cause controversy. Other mandates will accelerate long-simmering cultural disputes, like those allowing trans students to participate in women’s sports or use the bathrooms and locker rooms of their choice. While Biden says his focus is fixed on the coronavirus pandemic and economic stimulus, cultural conflict is poised to play a defining role in the coming years of his presidency.
The Supreme Court decision in Bostock v. Clayton County is the basis for Biden’s directive. Title VII of the Civil Rights Act bans discrimination “because of sex” in employment. The question for the justices was whether that sex discrimination ban also covers sexual orientation and gender identity. A six-justice majority led by Justice Neil Gorsuch said it does. Gorsuch wrote that it is “impossible” to discriminate against LGBT workers without discriminating in some way “because of sex.”
Biden’s order says the logic of Bostock—that discrimination against LGBT people is necessarily discrimination “because of sex”—should apply to every other federal law and regulation that bans sex-based discrimination. The order thus requires any agency that enforces statutes banning sex discrimination to likewise prohibit bias against LGBT people.
For example, the Department of Housing and Urban Development administers a sex non-discrimination law called the Fair Housing Act. Under Biden’s order, HUD will enforce that law to ban LGBT bias when selling homes or renting apartments. The Immigration and Nationality Act likewise promises assistance to refugees regardless of sex, meaning Biden’s order also guarantees protections for gay and transgender migrants.
All told, the list of forthcoming changes is a long one.
“Biden’s executive order is the most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president,” said Alphonso David, president of the Human Rights Campaign. “By fully implementing the Supreme Court’s historic ruling in Bostock, the federal government will enforce federal law to protect LGBTQ people from discrimination in employment, health care, housing, and education, and other key areas of life.”
While many new policies will likely enjoy broad support, some may inflame the hottest cultural disputes. Biden’s Education Department will be a flashpoint.
The Education Department administers Title IX, which bans sex discrimination in federally-funded schools. The department, consistent with Biden’s order, will make rules requiring any school that takes federal dollars to allow trans students access to their preferred bathrooms and locker rooms. Another rule granting trans-women access to women’s sports will almost certainly be promulgated. The order expressly contemplates those steps.
“Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” the order reads.
Critics say those moves are tantamount to repealing Title IX, which was passed to put women on equal-footing with men in athletics.
“This isn’t equality, and it isn’t progress. President Biden’s call for ‘unity’ falls flat when he seeks to hold those receiving federal funds hostage if they don’t do tremendous damage to the rights, opportunities, and dignity of women and girls,” said Alliance Defending Freedom lawyer Christiana Holcomb.
The Trump administration took the same view, arguing Bostock shouldn’t apply to Title IX because Title IX serves a different and unique purpose—protecting girls and ensuring equal athletic opportunities for women. Forcing women’s athletic leagues to accept transgender competitors would defeat the law’s purpose, the Trump Education Department argued in a 2020 memorandum.
In the months following Bostock, two federal appeals courts sided with transgender students challenging bathroom access policies, an early indication that many courts are ready to apply the case to education.
Implementing Biden’s order will take time. In the short term, agencies will issue advisory notices to forewarn employees or industry leaders about the new enforcement practices. That will give schools, banks, and employers time to implement changes on their own without formal government action.
Agencies will then move to enshrine the new policy in an official rule. Crafting rules is time-consuming. Agencies must give adequate notice of a change and allow a public comment period. Settling the finer points is likewise slow work, often involving officials from different parts of the government. For example, former education secretary Betsy DeVos rescinded an Obama-era “Dear Colleague” letter on campus sexual assault in 2017, but a long-promised rule setting due-process requirements for campus tribunals wasn’t finalized until 2020.
And whatever changes are achieved may be stymied in court. Advocacy groups and Republican attorneys general are sure to file legal challenges to the new rules. It’s not clear if they’ll ask judges to halt Biden’s policies on a national basis. Conservatives castigated so-called nationwide injunctions during the Trump administration, though with Biden in the White House they may be back in style.
Justice Samuel Alito foresaw a long slog in his wide-ranging 54-page dissent in Bostock.
“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” Alito wrote. “The entire federal judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
The U.S. Department of Education's Office of Civil Rights 'will investigate whether the University expresses an unlawful preference for women in its employment and hiring practices.'
The U.S. Department of Education recently opened an unusual Title IX inquiry against Georgetown University: The DOE’s Office of Civil Rights “will investigate whether the University expresses an unlawful preference for women in its employment and hiring practices.”
In today’s America, diversity bureaucrats control academia (even though they are anything but diverse in politics and sex). Millennial, antinomian hate against the legacy of “dead white men” in the Western canon has become the norm. The political monoculture of American academia is a synthesis of communism and feminism, taught across the nation in temples of nihilism called Women’s Studies.
Women make up the majority of undergraduate students, graduate students, and the college-educated labor force today. Women also constitute the majority of STEM students, medical students, and law students. Yet rampant discrimination against the male minority was the norm under the Obama administration. According to research published at the James G. Martin Center for Academic Renewal, the Department of Education was 2,400 percent more likely to side with female parties than male parties in adversarial proceedings (2011-19).
Elite colleges such as Cornell offer numerous support and advocacy programs for women but nothing equivalent for men, who are the minority. The lack of due process in college sexual harassment tribunals has received widespread and bipartisan criticism over the years from legal and academic experts. Critics include The Federalist Society, Heritage Foundation, Edmund Jr. Brown, NCHERM, Justice Ruth Bader Ginsburg, American College of Trial Lawyers, and the Reason Foundation.
Advocates have been struggling against this problem for years, often citing the very law that caused it: Title IX. Seminal rulings include an opinion from the 2nd Circuit Court of Appeals, which prohibits discrimination against men even in the absence of malice and even for a short time; an opinion from the 6th Circuit Court of Appeals, which mandates cross-examination in sexual harassment disputes; an opinion from the 7th Circuit Court of Appeals, which says Title IX tribunals fall short of what “even a high school must provide to a student facing a days-long suspension” in terms of due process; and an opinion from the 8th Circuit Court of Appeals, which dismisses the idea that past discrimination against women can justify discrimination against the male minority in today’s America.
There has also been progress in administrative precedent. The Department of Education accepted a class-action complaint on behalf of males during 2016. The department also published a widely quoted decision against Wesley College, which affirmed due process rights for the accused under Title IX. Likewise, a Title IX precedent against the University of Southern California (which challenged female-only scholarships) triggered many similar complaints across the nation.
A different precedent against Tulane University declared the illegality of various female-only programs. And now comes a new ruling that expands the purview of these civil rights investigations: a Title IX inquiry against Georgetown University. (Disclosure: The investigation was opened in response to a complaint I submitted.)
The Georgetown precedent is a significant milestone. The Department of Education has declared its intent to outlaw employment and recruitment preferences which favor the female majority. This means STEM departments which favor hiring women will be in legal trouble, for example.
The ruling also declares that women’s centers are legally suspect, since no institution to date has ever offered anything equivalent for the unfair sex. (Women’s centers are political advocacy units, funded at the expense of taxpayers. They should not be mistaken for programs that offer vital health services to women.) The Trump administration deserves credit for this ruling, a significant accomplishment in terms of curbing Title IX and restoring the law unto its original simplicity. Yet the USDOE Georgetown letter includes two main problems.
The ruling exempts Women’s Studies from Title IX based on the argument that “curricular materials” are exempt from civil rights inquiry. This argument is weak, inconsistent, and incorrect. The argument is weak because it relies upon a single subclause of Title IX in the legislative text: 34 C.F.R. §106.42. Other subclauses of Title IX, such as 34 CFR §106.36(c), prohibit “appraisal and counseling materials” that cause disproportionate enrollment. Women’s Studies programs overwhelmingly employ female professors for the benefit of overwhelmingly female students.
The argument is also inconsistent because the Department of Education is monitoring curricular materials under Title VI (a similar civil rights law) while refusing to do so under Title IX. This capricious distinction is against legislative intent, since Congress made little meaningful distinction between sexual discrimination and racial discrimination in qualifying the Civil Rights Act of 1964 (117 CONG. Rec. 30,156 (1971).
Last but not least, the argument is incorrect. The department has used Title IX to micromanage curricular and training materials before. Indeed, even Obama appointees once issued a resolution letter, dissolving female-only STEM programs for using language that excluded male students.
There is another problem with the ruling. I wrote the complaint in part as a response to the statements of Christine Fair, a Georgetown professor who received nationwide condemnation for her irrational vitriol. Fair’s statements called for violence and desecration against a class of human beings routinely demonized in American academia: men of Caucasian descent. “Castrate their corpses and feed them to pigs” is the kind of hate we have come to expect from hyperpartisan professors.
Negative generalizations against any other class of people warrant swift retribution in American academe, even when they are much more temperate in tone. The Department of Education once opined that the phrase “angry black woman” is adequate to constitute a racially hostile environment (2016). The department is also expanding the scope of Title VI to apply a novel and broad definition of antisemitism, a move which the Foundation for Individual Rights in Education has criticized. Yet the letter notifying of the Georgetown investigation is silent about Fair.
The Supreme Court has condemned discrimination against men and people of Caucasian descent before. This is common sense, consistent with the spirit of the Equal Protection Clause. The Department of Education’s unfortunate record raises some interesting questions: Can we now conclude this federal agency is violating Title IX and Title VI? No reasonable person can argue that “angry black woman” is more offensive than “castrate their corpses and feed them to pigs.” Why should the former statement constitute a racial and sexual offense, while the latter remains unpunished? This is an unlawful paradox with no simple explanation.
Plato maintained simplicity is the best evidence of eternity. St. Augustine classified simplicity as an attribute of God. Laws must be consistent, rational, and as simple as possible, lest they fail to inspire fealty and suasion. There is now an originalist and textualist majority in the Supreme Court of the United States, and we can only wonder what they will think about the paradoxes of the Georgetown letter.
By David French • National Review
The proposed Title IX rules highlight how bad things have become on campus.
The Department of Education has issued its long-awaited proposed regulations reforming sexual-assault adjudications on college campus. Not only will these rules restore basic due process and fairness to college tribunals, but they also — given how basic the changes are — highlight just how ridiculous university kangaroo courts have become.
First and perhaps most important, the rules will not only require colleges to permit cross-examination of witnesses (including the accuser), but will also prohibit universities from relying on the statements of any witness who refuses to submit to cross-examination.
Cross-examination is so fundamental to adversary proceedings that it’s is simply incredible that some universities have been prosecuting and expelling students without permitting the accused’s representative to question his accuser. Continue reading