In a letter obtained by The Star News Network, four members of the U.S. Commission on Civil Rights (USCCR) are calling upon House Speaker Kevin McCarthy (R-CA) to hold hearings on the Biden administration’s “radical and legally unsupported proposals to change Title IX” to require that its prohibition on sex discrimination be interpreted to bar discrimination on the basis of sexual orientation or gender identity.
The letter, signed by USCCR Commissioners labor attorney Peter Kirsanow, University of San Diego law professor Gail Heriot, Public Interest Legal Foundation President J. Christian Adams, and South Carolina African American Chamber of Commerce CEO Stephen Gilchrist, asserts to McCarthy that the Biden Education Department’s Office for Civil Rights (OCR) has erred in its claim that the Supreme Court’s decision in Bostock v. Clayton County “requires that Title IX’s prohibition on sex discrimination be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity.”
In June 2021, the U.S. Education Department’s Office for Civil Rights issued a Notice of Interpretation stating that it will enforce Title IX’s ban on discrimination on the basis of sex including sexual orientation and gender identity.
According to a press release, the department linked its interpretation of sex to include sexual orientation and gender identity to the U.S. Supreme Court’s decision in Bostock v. Clayton County, issued in 2020, a case that addressed employment in civil rights law.
“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination – and our LGBTQ+ students have the same rights and deserve the same protections,” Education Secretary Miguel Cardona said in a statement.
The civil rights commissioners wrote, however:
As Bostock v. Clayton County makes clear, Title VII of the Civil Rights Act of 1964 is about sex discrimination. By extension, the same is true for Title IX. Bostock did not hold that when Title VII says “sex,” it really means “sex or sexual orientation or gender identity.” It held Title VII is about sex discrimination. It reasoned thusly: Plaintiff Stephens is an anatomical and chromosomal man who prefers to be treated as a female and to adopt the clothing and mannerisms generally associated with being female. Ste[ph]ens was fired. If Plaintiff Stephens had been an actual female who preferred to be treated as a female and adopted the clothing and mannerisms generally associated with being female, she would not have been fired. That’s sex discrimination!
“And so it is,” the commissioners asserted. “Since there was nothing in Title VII that creates an exception that would be applicable to Plaintiff Stephens’ situation, the Court held that Title VII had been violated.”
They noted that applying the reasoning of the Bostock decision – which is in the realm of employment – “to bathrooms, locker rooms, and showers yields a different result from that in Bostock itself”:
It is also worth noting that the Supreme Court explicitly did not extend its interpretation of Title VII’s prohibition on sex discrimination to Title IX or to bathroom access. Justice Gorsuch wrote:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.
“The Office for Civil Rights has gone far beyond Bostock’s requirements,” the four commissioners asserted, also noting that in Adams v. School Board of St. John’s County, the Eleventh Circuit recently held:
Title IX prohibits discrimination on the basis of sex, but it expressly permits separating the sexes when it comes to bathrooms and other living facilities. When we read “sex” in Title IX to mean “biological sex,” as we must, the statutory claim … resolves itself. Title IX’s implementing regulations explicitly allow schools to “provide separate toilet . . . facilities on the basis of [biological] sex.”
Sex discrimination that derives from separating the biological sexes in such private spaces, the commissioners said, then, is “not a violation of Title IX.”
If it is sex discrimination to exclude a “transgender girl,” i.e., a biological boy who claims to identify as a girl, from the girls’ facilities, “then it’s sex discrimination to exclude any boy from the girls’ facilities, whether transgender or not,” they observed. “If it’s sex discrimination for one, then it’s sex discrimination for all.”
Though a “transgender girl” may claim “discrimination” because he believes himself to be a “girl,” that argument is “misguided,” the commissioners explained.
“That may be discrimination (given that every time a person is treated differently from another person, for good reason or bad, that literally fits the definition of discrimination),” they wrote. “But it isn’t sex discrimination. Treating these two different kinds of girls differently is discrimination based on gender identity, not sex. Title IX is about sex discrimination.”
The four commissioners also noted that Title IX “does not mandate separate facilities for males and females.”
“It simply permits them,” they explained. “If an individual school decides it prefer[s] to separate bathrooms, locker rooms, and showers on some other basis, it certainly can. For example, there may be no reason for a school to want to divide students into groups based on their surname’s first letter, but no law forbids alphabetical discrimination. Consequently, no regulation would be necessary to authorize separate facilities on that basis.”
The commissioners summarized their concerns to McCarthy:
We therefore urge you to hold hearings on Title IX and sex separation in sports teams and intimate living facilities. Although we do not believe it is necessary, it might be useful for Congress to pass an amendment to Title IX specifying that schools may separate athletic teams and intimate living facilities by biological sex and prohibiting any federal agency from issuing regulations to the contrary.
“We strongly believe that transgender students, like all students, should be treated with dignity and respect,” they wrote. “But we do not believe that schools subject to Title IX are required to ignore the needs of other students. It is our sincere hope that this brief summary encourages further discussion on how we can stop the Biden Administration’s radical and legally unsupported proposals to change Title IX.”
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