Published September 3, 2021
The Biden administration is facing two new lawsuits challenging its reinterpretation of federal antidiscrimination statutes to include “sexual orientation and gender identity.”
The new federal guidance, issued by the Department of Education and the Department of Health and Human Services (HHS) in the early months of Joe Biden’s presidency, provides that Title IX’s prohibition on sex discrimination also prohibits discrimination — or so-called discrimination — on the basis of sexual orientation or gender identity. It marks a return to the final days of Barack Obama’s presidency, when the Education Department issued a “Dear Colleague” letter adding “sexual orientation” and “gender identity” to the definition of sex discrimination under Title IX.
Under Biden, both the Education Department and HHS have reversed the Trump administration’s efforts to walk back the Obama guidance. To justify those efforts, Biden officials argue that they are merely interpreting the Supreme Court’s decision in Bostock v. Clayton County to mean that “sex discrimination” under Title IX’s antidiscrimination provisions now includes sexual orientation and gender identity.
This is a poor reading of an already flawed Court ruling. In Bostock, the Court held that Title VII’s prohibition on sex discrimination in the context of employment also forbade employment discrimination on the basis of sexual orientation or gender identity — but the majority was silent on whether that holding applied to other nondiscrimination laws. Applying Bostock to Title IX, then, isn’t an effort to conform to a Court ruling but rather an effort to use that ruling to justify an egregious act of executive overreach. Far from being required by Bostock, these policies wield federal power to impose the Left’s controversial and unscientific view of gender on the entire country.
Now the administration is facing legal action. Late last week a coalition of 20 states sued a number of federal officials and agencies — including the Department of Education, the Equal Employment Opportunity Commission, and the Department of Justice — to stop the guidance’s implementation. The suit argues that the administration’s “interpretations” of Bostock are “far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit.” It goes on to assert that:
The guidance purports to resolve highly controversial and localized issues such as whether employers and schools may maintain sex-separated showers and locker rooms, whether schools must allow biological males to compete on female athletic teams, and whether individuals may be compelled to use another person’s preferred pronouns. But the agencies have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation.
In a second legal challenge, the American College of Pediatricians, the Catholic Medical Association, and medical doctor Jeanie Dassow have filed a suit against the Department of Health and Human Services, HHS Secretary Xavier Becerra, and the HHS Office for Civil Rights. The medical groups represent about 3,000 doctors and health-care workers in the U.S., and their suit targets the HHS antidiscrimination guidance on the basis that it would require physicians to conform their practice to the federal government’s view of gender ideology rather than their best medical judgment.
Under the guidance, the suit alleges, the federal government is attempting to “make medical doctors perform gender-transition surgeries, prescribe gender-transition drugs, and speak and write about patients according to gender identity, rather than biological reality — regardless of doctors’ medical judgment or conscientious objections.” The suit further argues that, because the Biden administration’s guidance is unsupported by federal statutes, it “violates the Administrative Procedure Act, and is also a violation of the Religious Freedom Restoration Act, the First Amendment’s Free Speech and Free Exercise of Religion Clauses, and other constitutional doctrines.”
In addition to violating conscience rights, the Biden administration’s new policies flout the legislative process and arrogate power to unelected bureaucrats for the sake of advancing a flawed view of gender and human sexuality. So these lawsuits are just the beginning of what promises to be a protracted legal battle with enormous stakes.
Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.