President Biden and His Admiral Have Boarded a Sinking Ship

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Third, the American College of Pediatricians has concluded: “Ethics alone demands an end to the use of pubertal suppression with GnRH agonists, cross-sex hormones, and sex reassignment surgeries in children and adolescents.  The American College of Pediatricians recommends an immediate cessation of these interventions, as well as an end to promoting gender ideology via school curricula and legislative policies.”

So much for Levine’s nonsense about “no argument.”  Such assertions can be only explained as willful attempts to persuade uninformed vulnerable children and their parents. 

In the same vein, President Biden has climbed on board with the admiral by announcing his social transition proposal that K–12 schools must allow males who claim to be females to access female private spaces, such as showers, bathrooms, and sleeping areas.  In addition, schools must require staff to use false and confusing pronouns when referring to so-called transgender people and must allow male staff to dress as women while on the job.  Specifically claiming reliance upon reasoning of the Supreme Court in the Bostock Title VII employment case, Biden proposes to accomplish his goals by applying Title IX prohibitions of sex discrimination in education also to sexual orientation and gender identity discrimination.

It appears that Biden did not read the Court’s wise warning in the Bostock opinion.  The Court warned that it did not purport to address issues such as use of “sex-segregated bathrooms, locker rooms, and dress codes or anything else of the kind,” whether under Title VII or any other law.  Nonetheless, Biden has cavalierly declared that the reasoning in Bostock applies to the world of K–12 education under Title IX.

Biden’s proposal (“Proposal”) was issued not only in spite of the Court’s warning, but also in spite of the fact that the DOJ in a January 2021 Memorandum for the Civil Rights Division (Memorandum) determined that reasoning to be defective.  Below is an explanation of just four of the DOJ’s determinations:

1. In Title IX (unlike in Title VII), Congress expressly provided that “notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.”  The DOJ determined (as to separate bathrooms and locker rooms, etc.): “This provision supports the conclusion that Title IX’s prohibition on sex discrimination does not prohibit different treatment of the sexes where the physiological differences of the sexes are relevant” (Memorandum, p. 15).
2. The interpretation of a statute in Bostock has no bearing on the proper interpretation of the Constitution, including whether classifications based on sexual orientation or transgender status should be treated as sex-based classifications (or otherwise trigger heightened scrutiny) (Memorandum, p. 22).
3. “The Civil Rights Division will not lightly assume that Title IX should be interpreted in a way that “would frustrate the purposes” of that law, Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285 (1998). It would frustrate Title IX’s purpose to read its text as prohibiting the single-sex teams that have ensured women equal opportunity in athletics for nearly 50 years. It would likewise frustrate those purposes to read Title IX to prohibit sex-specific facilities that allow men and women privacy from the other sex, particularly given that many boys and girls will be undergoing physiological changes associated with their biological sex at the same time that they are participating in, or attempting to participate in, education programs and activities” (Memorandum, p. 17).
4. “At a bare minimum, no statute should be read to require or permit giving transgender individuals special — as opposed to equal — treatment. … Bostock does not prevent recipients from adopting sex-specific policies and facilities when the physiological differences of the sexes are relevant, including with respect to living assignments, bathrooms, locker rooms, and competitive sports teams. … Thus, for example, a women’s volleyball team, ice hockey team, weightlifting team, or rugby team may not allow men who identify as women to play on the team if other men are not allowed to, because doing so would discriminate against non-transgender men and in favor of transgender men based on sex, which is unlawful under Bostock” (Memorandum, p. 17).

Parents, children, legislators, judges, and medical professionals are all becoming aware of the material risks and consequences (including irreversibility) of medical interventions such as puberty-blockers, cross-sex hormones, and “sex reassignment” surgery.  Such awareness has caused states (like Arkansas) and medical authorities in sovereign nations (Sweden and Finland) to prohibit or recommend against administration of such treatments for most minors.  Other states (like South Dakota) have enacted prohibitions on participation by males in opposite-sex sports to protect constitutional rights of fairness and other rights.  A teacher sued his school board for compelling him to affirm opposite-sex pronouns in violation of state and federal constitutional and statutory protections.