Dem
51
GOP
49
Another hot legal item came out Friday, although not from the Supreme Court. Rest assured though, it will get there in the fullness of time. And this time it didn't even involve Judge Matthew Kacsmaryk, who thinks he can rule the country from Amarillo, TX. The ruling was from U.S. District Judge Terry Doughty of the Western District of Louisiana. This case also hangs on a definition, this time not "machine gun," but "sex." Title IX is a 50-year-old law that bans discrimination in schools based on sex. What Congress had in mind, among other things, was schools saying "We have a boys' basketball team but no girls' basketball team because girls are too short." This is forbidden by Title IX.
But the Biden Education Dept. has reinterpreted the law to mean that transgender students must be allowed to use the bathroom corresponding to their preferred sex and be on sports teams of their preferred sex, and perhaps most controversial of all, change for gym and take showers in locker rooms that correspond to their preferred sex. Also, teachers must use the students' preferred pronouns. Pronoungate, anyone? Or showergate?
As you might imagine, there are people who don't buy the idea of allowing boys into the girls' locker room and showers because they identify as girls (and may not look like girls when undressed). The attorneys general of four states—Louisiana, Mississippi, Montana, and Idaho—sued to have the reinterpretation of the law rescinded. Doughty agreed and ordered schools in those four states not to follow the new rules until the dust has settled (which almost certainly means until the Supreme Court has ruled on the case). The ruling does not apply to other states, although similar cases are in progress in many of them. This was simply the first ruling.
Doughty wrote that protecting "biological males" as if they were females subverts the whole purpose of Title IX and represents an abuse of power by the Biden administration. He is somewhat correct, in that Title IX was indeed passed much more to protect girls than it was to protect boys. We can imagine that some girls will not feel protected if they see a biological boy in their locker room or showers after gym class. The actual wording of Title IX doesn't really help here. It just bans discrimination based on sex and there is little doubt that when the law was passed, Congress wasn't thinking in trans terms.
The Title IX Legal Manual states: "Congress enacted Title IX with two principal objectives in mind: to avoid the use of federal resources to support discriminatory practices in education programs, and to provide individual citizens effective protection against those practices. See Cannon v. University of Chicago, 441 U.S. 677, 704 (1979)." Title IX began when Sen. Birch Bayh (D-IN) introduced an amendment to a bill stating that its purpose was to combat "the continuation of corrosive and unjustified discrimination against women in the American educational system." He didn't define "women" (or "girls"). He thought that was pretty obvious and the wording in the text makes it clear that "sex," in the mind of 1970s members of Congress, refers to "males" and "females."
Title IX does not contain any text to the effect "see Appendix B for the legal definition of 'girl.'" Clearly at some point the Supreme Court is going to have to write Appendix B. Is an announcement from a student enough? A doctor's note? Hormone treatments? Surgery? Given that this issue is going to come up in every state, the Supreme Court is going to have to deal with this (unless Congress gets there first, which seems unlikely since Democrats and Republicans are generally not on the same page here). We're going to go way out on a limb here and predict that ultimately Doughty's decision will be upheld by the Supreme Court by 6-3 along party lines. But that is years away. (V)