The rule which was implemented under President Joe Biden’s administration would effectively reinterpret the Title IX ban on “sex” discrimination so that it would also include a ban on “gender identity” discrimination -- this even though the phrase “gender identity” is absent from the 1972 law. The judge, Judge Danny C. Reeves of the District Court of the Eastern District of Kentucky, ruled that the department had “exceeded its statutory authority” in implementing this rule but also found that the rule itself violated the US Constitution, both quelling the discussion of gender ideology and because it was “vague and overbroad.” This challenge against the Biden administration’s Title IX rule change was brought by attorneys general of six states: West Virginia, Kentucky, Tennessee, Indiana, Ohio, and Virginia. Their concern, among others, was this had the effect of overriding applicable state laws that provided for separate athletics, bathrooms, locker rooms, and dormitories on the basis of biological sex.
Those most affected by the Biden administration’s Title IX effective end to the sex-based protections for biological women in all aspects of education were the women for whom Title IX had been implemented and whose progress so far would have made a retreat. The judge noted that the Title IX prohibition on sex discrimination is “abundantly clear” that it refers to discrimination “on the basis of being male or female” and “there is nothing in the text or statutory design of Title IX to suggest that discrimination ‘on the basis of sex’ means anything other than it has since Title IX’s inception.”
Therein lies the problem. The role of progressive and liberal government is always to expand beyond the written language of statute and law in pursuit of a goal of a nanny state which replaces individual freedoms and responsibility with a governmental mandate to control and manage nearly every aspect of our lives as individuals and as a nation. The stereotype is that those opposed to such controls are trying to micromanage the lives of the citizens and their institutions but the reality is just the opposite. In preserving both the liberty and responsibility of the people and the institutions they form to serve them, the cause of those for a smaller governmental reach is to keep the government out of their lives and not impose rules that are both costly financially and incidental to the real and established purpose of those institutions the people establish. Finally, I wonder when the women who have enjoyed the Title IX rules will awaken to the dilution of their own position under those rules by those intent upon expanding the reach of government to manage statutes which were never intended to reach that far.
In Article One, Section Eight are enumerated the proper objects of congressional legislation. Congress can:
- borrow money, coin money, regulate its value, and punish counterfeiters
- regulate commerce with foreign nations, among the states, and with Indian tribes
- establish rules for naturalization and bankruptcy
- establish Post Offices and Post Roads
- issue patents and copyrights
- establish courts inferior to the Supreme Court
- punish pirates
- suppress insurrections, repel invasions, declare war, raise an army, maintain a navy, and make rules for the army and navy
- organize the Militia (leaving to the states the appointment of officers and the authority of training the Militias).
There you have it. This was the intended scope of congressional authority and the government's reach. Compare that to what we have today. Americans had a constitutionally limited federal government and what Justice Louis Brandeis famously called “laboratories of democracy” in the states. The limitation of the authority of the federal government was so that the lion’s share of governance would be closer to the people and lie in state hands. Each state may and would govern somewhat differently. This was not, in the beginning an impediment to democracy but its exercise.
In 1942, the Supreme Court decided a case, Wickard v. Filburn, in which farmer Roscoe Filburn ran afoul of a federal law that limited how much wheat he was allowed to grow. The Agricultural Adjustment Act of 1938 placed an upper limit on how much wheat farmers were allowed to grow in order to maintain higher prices and profits by limiting supply. Poor old Roscoe Filburn grew 12 more acres of wheat than he was allowed by law. Though he not sell the wheat at all but fed it to his cattle, the SCOTUS used the most impressive mental gymnastics possible to insist that he was, indeed, engaging in commerce and interstate commerce at that. The government was so intent upon preserving its authority that it gave to words meanings not ever intended in order to impose regulation upon something that clearly did not fall under those statutes. In so doing, they drove a truck through the Constitution and left a hole that every liberal and progressive government has tried to expand and every conservative one has tried to close. So, in some respects, it is remarkable when the courts actually find that what was intended by clear language under statute is actually what was meant. In the meantime, we are still left with the gaping hole -- only this small pickup has been barred from going through it.
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