More gender confusion, anyone?

By Deacon Mike Manno 

Well, it seems that our friends on the Progressive Left are at it again. They are seemingly trying to erase any lines between the sexes; you are what you think you are, is the new mantra.

The idea goes back to the days, not that long ago, when the concept of gender identity was beginning to break ground in the American conscience. It was a time when some argued beyond the traditional viewpoint that there were men, women, and some few who felt attracted to persons of the same sex, homosexuals or lesbians, who suffered from gender dysphoria, which was widely recognized as a mental illness.

The idea that dysphoria was a mental condition was roundly attacked by the progressives until 1973 when it was removed from the category of mental disorder and reclassified as a sexual orientation disturbance by the American Psychiatric Association. The story of how the “mental disorder” was upgraded to an issue of sexual orientation is told in Robert R. Reilly’s 2014 book, Making Gay Okay: How Rationalizing Homosexual Behavior is Changing Everything.

From there some segments of society began the push to redefine the concept of sex from one of biological reality to self-identification. Ironically at about this time, 1972, Congress adopted Title IX to provide equal access for women in the academy. This was right at the high point of the Women’s Movement and was intended to increase opportunities for girls and women in sports and other facets of their lives.

It did not take long for the left to pick up on the concept of “orientation disturbance” to gain a foothold and the effort began to change the definition of “sex” in federal law to include “sexual identity,” but reluctant lawmakers never approved the change. Defeated, but not surrendering, the liberals resorted to other measures to achieve their desired ends without a direct congressional imprimatur. This included resorting to the courts as well as administrative agencies.

Fast forward to the last years of the Obama administration when the civil rights divisions of the Justice Department and the Education Department sent a “dear colleague” letter to school administrators across the nation suggesting to them that the administration’s interpretation of the word sex in Title IX would include gender identity and encouraged them to govern themselves accordingly. That was immediately withdrawn by the Trump administration.

But now the Biden administration is not only reformulating Obama’s earlier definitions, but it is putting them into the closest thing to a law they can pass: an administrative regulation finding that sex means orientation in all academic activities — showers, lodging, athletic activities including teams, and the like. Under the proposed regulation no activity or facility can segregate by sex; sexual orientation will be respected in everything without regard to privacy rights, moral objections, or even the potential loss of girls’ and women’s opportunities.

And the rule applies to any school that takes any direct or indirect federal aid, religious or not. Thus if a local Catholic school has as much as a school lunch program that involves federal funds, that school must follow the Biden guidelines. So when your little girl goes off to band camp, guess who she might be forced to bunk with? She’ll not only be forced to compete against biological men at basketball, but would have to shower with them as well. She will be in a position to lose not only her innocence but athletic scholarships to “trans” girls, biological males who identify as women.

Nice little kettle of fish our devout Catholic president has cooked up for all you parents out there.

So where does this stand right now? Administrative rules must follow a specific path before they can be adopted, in this case the legal requirement is that the proposed rule be published and the public given time to submit comments, after which the agency — which is entirely controlled by the president — will review all the comments and either adopt the regulation, modify and adopt the regulation, or reject the regulation. If it is adopted, it will have the force of federal law.

This proposed rule will be open for comment until September 12 and the comments can be sent to U.S. Department of Education, 400 Maryland Ave. S.W., Washington, DC 20204.

Now, after other attempts for a congressional change from biology to identity failed, you might wonder how the Biden administration can square this rule with the law as currently written. It offers as a rationale the Supreme Court’s 2020 decision in Bostock v. Clayton County. In that case involving employment law, the court held that Title VII’s prohibition against workplace discrimination on the basis of sex included sexual orientation as well.

While the bare-bones ruling would give some support to Biden’s interpretation for Title IX purposes, it should be noted that both laws were passed at different times, for different purposes, have different legislative histories, and most noteworthy, the court in Bostock specifically stated that its ruling only applied to employment law.

Additionally, in the court’s June opinion in West Virginia v. EPA, it rolled back the Environmental Protection Agency’s power to regulate gas emissions from power plants as beyond its congressionally delegated authority. It also put in jeopardy the continued viability of the Chevron Doctrine which gave great deference to the decisions by administrative agencies.

And in another recent case a federal district court in Tennessee blocked another Biden policy from taking effect. That policy, similar to the proposed rule as above, and challenged by 20 state attorneys general, would have enforced an EEOC rule that prohibited discrimination on the basis of gender identity. Enforcement of that rule is now on hold until that matter can be heard in court.

It’s probably fair to say that the current court is not friendly to the unlimited and arbitrary expansion of agency powers without specific legislative authority from Congress. If true that could be a Godsend for those fighting for a smaller and more limited federal government.

And for those who might wish to opine further, you might say that the Biden administration has brought this on itself.

(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday morning at 9:30 CT on Faith On Trial on IowaCatholicRadio.)