By John Banzhaf, Professor of Public Interest Law, George Washington University Law School
A federal judge in Oklahoma has become the latest judge to put a hold on enforcement of a new federal rule which would have permitted any male claiming to the female to use restrooms, showers, and locker rooms where students undress reserved for females, and grant them various privileges and protections designed to benefit girls and women. It would also prospectively allow them to compete against, and possible injure, girls and women in sports events.
U.S. District Judge Jodi Dishman of the Western District of Oklahoma blocked the rule from going into effect, concluding that the Biden administration’s rule “elevates gender identity and its accompanying protections above that of biological sex — i.e., women.”
With the decision, the department is now prevented from enforcing the rules in 26 states following an appellate court decision to grant Alabama, Florida, Georgia and South Carolina an injunction, overturning a lower court’s contrary ruling.
Enforcement of new Title IX rules covering transgender students, which would have permitted males with a penis and even a beard to use restrooms, showers, and locker rooms reserved for girls and women, and to have access to advantages reserved solely for females (including everything from special programs and scholarships to breast feeding classes), has been almost uniformly blocked due to the Supreme Court’s recent decision doing away with the Chevron Doctrine.
These institutions include everything from Abilene Christian University to Yuba College, and include top institutions of higher education including Columbia University, Cornell University, Dartmouth College, Georgetown University, Harvard University, Massachusetts Institute of Technology, Princeton University, and Yale University.
This is one of the first major results of a recent Supreme Court decision which finally killed off the Chevron Doctrine. Now courts are permitted to use common sense in interpreting language in statutes which govern agencies, rather than having to accept even the most fanciful interpretation offered by the agencies themselves, who explained things this way.
When the Supreme Court recently tossed out the 40-year-old Chevron Doctrine which required courts to adopt whatever definition agencies decided to give to words in its statute which might arguably seem to be ambiguous, many bemoaned that agencies would no longer be able to protect the public, and that judges with no scientific training would begin making scientific and medical judgments.
For example, here’s how a popular legal website, “Above the Law,” reported it: “John Roberts Says Judges Should Decide How Much Rat Poison Is Too Much For Your Hot Dogs”
But an earlier judicial ruling blocking the administration from putting into effect new rules based upon an agency determination that when Congress banned discrimination based upon “sex,” it meant to protect men who think they are really female to compete against girls and women in sports events (delayed until after the election); to use locker rooms, rest rooms, and even showers reserved for girls and women; to have access to programs reserved for women (e.g. scholarships, breast feeding, etc.) and feminine hygiene products; and perhaps even to pap exams (in the UK it’s the law), and enjoy other privileges was based upon the demise of this much criticized doctrine which finally permitted judges to use common sense and historical context in interpreting statutory language.
In 1972, at a time when the words “gender identity” had hardly ever been heard except perhaps in an obscure journal, Congress passed Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, et. seq., which prohibited discrimination based upon “sex” as that word was universally understood.
It limited laws and practices, which might unreasonably treat females (i.e., except in very rare cases those born with a vagina and XX chromosomes) differently from males (i.e., born with a penis and XY chromosomes).
But it expressly permitted common and virtually universally accepted situations in which the genders would be treated differently (e.g., in sports, and where sexual and bodily privacy had to be maintained). The legislative history is very clear that it was primarily designed to benefit and protect girls and women from discrimination against them because of their gender.
Yet a federal agency, perhaps eager to update this language to be more in accord with thinking on some elite college campuses decided, without input from Congress, to expand the word Congress used in 1972 (“sex”) to mean “sexual identity”) – what a person says or thinks they really are, even if clearly contrary to all appearances.
So, in extreme situations, men with beards, but claiming to be female, were offered pap smears, and allowed to compete against girls and women and severely injure them in sports where strength and size are major factors, who helped add “sexual identity” to the protected categories at his own university.
M2F transgender students were also permitted to exhibit their male genitalia to females, and to view the naked bodies of girls and women, while in female showers, locker rooms, and restrooms. Ironically, girls who objected to this requirement were then discriminated against by being punished and/or required to change clothing in toilet stalls.
Many engaging in sports have been severely injured by M2F transgender athletes they were forced to compete against, including men who looked exactly like men
A Bearded 6 Feet Tall Player Injures 3 Girl Athletes, Again *** M2F Transgender Are Athletes Disabling Females in Many Different Sports
This occurs even though those seeking these extra protections or privileges need not offer any proof that they really believe themselves to be female. Indeed, they can demand the opportunity to shower with girls and women even when sporting a beard, and making no effect to dress or otherwise appear female.
In stark contrast, those who seek special privileges or protection (e.g. extra time to complete exams) by claiming to have a learning disability (in contrast to gender dysphoria) must provide substantial proof, and sometimes undergo additional testing, to be entitled to special privileges because of their condition.
Fortunately, at least in this situation, federal judge John Broomes was able to rely upon the Supreme Court’s very recent decision burying the Chevron Doctrine which made it possible for him to apply common sense to the situation and to this common word:
“The Supreme Court recently held that the court ‘need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.’ [] The court must exercise its ‘independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.’ . . . At issue here is Title IX’s command that an individual not be discriminated against ‘on the basis of sex.’ Therefore, the court must determine the ordinary meaning of this command. [] After review, the court finds that the unambiguous plain language of the statutory provisions and the legislative history make clear that the term ‘sex’ means the traditional concept of biological sex in which there are only two sexes, male and female.” [emphasis added]”
Thus, while it certainly may require expert scientific and medical judgment as to how best to deal with a child who claims to be of a sex different from that determined by anatomy, it did not – and certainly should not – require special scientific or medical expertise for judges to determine that Congress in 1972 meant the word “sex” in the commonly understood biological sense.
It’s also logical that, if such an important change or expansion in the law, with such far reaching consequences, is to be made, it should be made through legislation by the people’s elected representatives in Congress, and not by un-elected and frequently exchanged bureaucrats, noting that this is also now required by the new legal Major Questions Doctrine.
