Flouting Congressional Will, the Biden Administration Rescinds Women’s Rights

For the first time in history, the women’s NCAA basketball final drew more television viewers than did the men’s. And not by a small margin. Nearly 28% more. Would that happen if the women’s teams had men on them? If the Biden administration has its way, we’ll find out.

The enactment of Title IX of the Education Amendments in 1972 marked a turning point in the lives of girls and women in schools and colleges throughout the United States. For the first time, this federal statute prohibited discrimination on the basis of sex in educational programs that receive federal financial assistance, which can be as minor as school lunch programs or tuition assistance. Thanks to this law, more than ten times as many women and girls now participate in athletic activities in K-12 schools and in institutions of higher education than did fifty years ago.

On April 19, 2024, the Biden administration finalized regulations it proposed in July 2022. Likely to avoid backlash at the polls this November, the administration recently indicated it is postponing finalizing the proposed sports-related Title IX regulations it published in April 2023. In each case, the regulations do something that not only the Executive Branch does not have authority to do but also what Congress has specifically declined to do.

They declare that “sex” in Title IX actually means sex, sexual orientation, and gender identity.

The Executive Branch has no authority to make such a radical change in the meaning of a statute. But this is no ordinary Executive Branch. This is the one whose chief executive recently boasted that although the Supreme Court ruled that he does not have the authority to forgive student loans, he is doing it anyway,[ii][ii]1 requiring truckers and plumbers to absorb the cost of strangers’ ineffectual college degrees. And although the President is required to administer and enforce the laws Congress has passed, this President has steadfastly refused to enforce our nation’s immigration laws.

Without the Consent of the Governed

Our government of, by, and for the people has bit by bit become a government of forced mandates to which we do not consent. Mandatory school, business, and church closures during 2020, along with required COVID-19 shots, were but the most visible recent manifestation of this trend.

The Development, Relief, and Education for Alien Minors Act, commonly known as the DREAM Act, was first introduced in Congress in 2001 and reintroduced numerous times thereafter. Each time, members of Congress, mindful of the opposition of their constituents, refused to pass it. Nonetheless, in 2012, without even relying on his phone and his pen as he had threatened, but merely with a memorandum from the head of his Department of Homeland Security, President Obama implemented DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of Americans), a similar program for their parents, in effect implementing provisions of the law—the DREAM Act—which Congress repeatedly refused to pass.

As DACA and DAPA were contrary to law and had been implemented in violation of the Administrative Procedure Act (APA)—that is, without advance notice and opportunity for public comment—President Trump rescinded them in 2017. The usual suspects brought suit to challenge the rescission. Astonishingly, the Supreme Court ruled that the Obama-era policy—implemented in violation of relevant statutes and the APA—could not be rescinded except in compliance with the APA! So DACA and DAPA persist to this day.

Similarly, U.S. lawmakers have been introducing versions of a proposed Equality Act in Congress for decades. The most recent was introduced in 2021. In each case, the purpose of the proposed legislation is to expand the 1964 Civil Rights Act’s definition of sex to include sexual orientation and gender identity (SOGI). Each time, members of Congress, mindful of the potentially devastating consequences and of the opposition of their constituents, refused to pass it. Nevertheless, President Obama implemented its provisions, and Biden is now following suit.

Trans Is a Top Priority

The very afternoon of his inauguration, Joe Biden signed an Executive Order entitled “Preventing and Combating Discrimination on the Basis of Sexual Orientation and Gender Identity.”2 It requires each federal agency to take action and to report regularly to the White House on its actions in this regard. Biden also created a White House Gender Policy Council,3 on a par with the National Economic Council, Domestic Policy Council, and others, to “drive a strategic, whole-of-government approach to advance gender equality and gender equity, as part of the implementation of the first-ever National Strategy on Gender Equity and Equality in the U.S.”

As commanded, agencies throughout the federal government announced actions of all sorts to promote “gender equity and equality.” In each case, the agency asserts that the new requirements are required by the Supreme Court’s June 2020 decision in Bostock v. Clayton County.

Two facts reveal the falsity of that assertion:

  1. The Bostock decision explicitly and emphatically limited its application exclusively to issues of employment discrimination under Title VII of the Civil Rights Act of 1964.
  2. Many years before the Bostock decision, the Obama administration had routinely advised that for purposes of Title IX and other federal statutes, “sex” included “gender identity.” 4

In the Bostock decision, Justice Gorsuch merely adopted the policies and rationale the Obama administration used in 2012 when it required battered women’s and homeless shelters accepting HUD financial assistance to accept the representations of men who claim to identify as women and permit them to be housed with them. In 2014 and earlier, the Department of Education told teachers who inquired that they must permit boys who claim to identify as girls to use the girls’ bathrooms and locker rooms. There are other examples.

Where Are the Women’s Advocates?

It is laughable to suggest that in 1972, when Congress passed and President Nixon signed Title IX, they meant for “sex” to actually mean sex, sexual orientation, and gender identity. If they did, then girls and women do not now and never did have spaces or activities to call their own, and Title IX is not worth the paper on which it was written.

Alabama’s Sen. Tuberville and others have introduced legislation to save girls’ and women’s sports by excluding from them athletes who are not girls and women. Tuberville asks: Where are the activists who got Title IX enacted? The answer: They’ve gone to the other side.

The National Organization for Women, for example, argues that it is unlawful sex discrimination to exclude boys and men from the activities and private spaces reserved exclusively for girls and women.5

Other organizations established for women are capitulating to the radical transgender agenda as well, for example:

  • Kappa Kappa Gamma is a women’s fraternity founded in 1870, before the word sorority was even coined. Its leadership bullied University of Wyoming co-eds to tolerate as a “sorority sister” a man who claims to identify as a woman.6 That leadership is now engaged in litigation with those coeds to crush their opposition to the man’s leering and voyeuristic intrusion into their private spaces.
  • The Daughters of the American Revolution was founded in 1890, the year after the founding of the Sons of the American Revolution, which would not admit women to membership.7 It has decided it will accept men who claim to identify as women. Unlike most other groups taking this path, though, it at least requires that the man produce documentation identifying him as female. Unfortunately, on the mere say-so of the applicant, many states issue retroactively falsified birth certificates that do not indicate that they are not the original.

Around the world, men who claim to identify as women are being appointed to organizations and commissions dedicated to the welfare of women. To name just two:

  • the U.K. is sending a man who claims to identify as a woman as its delegate to the United Nations Commission on the Status of Women;8
  • a U.K. charity focusing on endometriosis—a disease of the female reproductive system—has named a man who claims to identify as a woman as its CEO.9

Planting Seeds of Confusion

The philosophy represented by these proposed Title IX regulations has seeped into every aspect of life and is especially insidious in the education of young, impressionable children and vulnerable adolescents.

Science teachers’ associations have prepared and are promoting curricula teaching that there are more than two “genders” and planting the seed of thought in elementary school and earlier that, notwithstanding physical attributes and parents’ guidance, the student might not actually be the sex he or she was “assigned at birth.”10,11,12 Some jurisdictions forbid teachers and school administrators from advising parents when their school children express dissatisfaction with or confusion about their sex. They call it “outing.” Other states have passed laws prohibiting schools and teachers from encouraging students to “transition” and from hiding a student’s “transition” from his or her parents. They do it anyway. State and local governments are taking children from parents who decline to “affirm” their belief that they are the opposite sex.13,14,15 In divorce custody battles, the parent who “affirms” the delusions of the confused child is favored over the parent counseling the child to accept his or her body and endure adolescence the way humans have for all time.

The President Does Not Have This Authority

President Obama implemented the principal provisions of the DREAM Act, notwithstanding that Congress refused to pass it. He also implemented provisions of the Equality Act that Congress refuses to pass, and Biden is following suit with these Title IX regulations and other government mandates.

Inasmuch as Biden’s Title IX regulations have been published in proposed form with opportunity for public comment, they comply with the Administrative Procedure Act. But because they completely pervert the intended purpose of the law they purport to implement, they would be unlawful and, if promulgated, must be struck down, either by Congress using the Congressional Review Act or by courts on an expedited basis. The harm the policies they represent have already caused is incalculable.

If Congress wishes to surrender the American people to the current rage of radical gender ideology, it must amend the law to do so. Our elected representatives must hold hearings, invite public debate, and go on record opposing girls’ and women’s rights to their own activities and facilities. But do members of Congress have the backbone to do this? Or will they once again just roll over and, through their inaction, let the Executive Branch impose mandates Congress has refused to enact?

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About Eileen J. O'Connor

Eileen J. O’Connor is an attorney in private practice specializing in federal administrative and tax law. For nearly 30 years, she was a national tax consultant with the IRS and major accounting firms. She served as assistant attorney general in the Justice Department’s Tax Division for six years during the George W. Bush Administration and was a member of President Donald Trump’s Treasury Department transition team.

Photo: WASHINGTON, DC - JUNE 23: Demonstrators listen to the speaking program during an "Our Bodies, Our Sports" rally for the 50th anniversary of Title IX at Freedom Plaza on June 23, 2022 in Washington, DC. The rally, organized by multiple athletic women's groups was held to call on U.S. President Joe Biden to put restrictions on transgender females and "advocate to keep women's sports female."(Photo by Anna Moneymaker/Getty Images)