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The Undoing of Title IX

Title IX of the 1972 Education Amendments was passed to ensure equal opportunities in education for biological females. It has been applied in numerous contexts, from increased allocation of funds to women’s athletics to allowing women to have housing and dormitories that are comparable in quality to those provided to male students. Title IX addressed an important need: the unequal treatment of biological female students in relation to the treatment of biological male students.

However, the entire purpose and effect of Title IX may have just been nullified by a recent federal court decision that held the definition of “sex” is “susceptible to more than one plausible reading.” The court declared the relevant statute, which says schools “may provide separate toilet, locker room, and shower facilities on the basis of sex,” is “ambiguous” and could be read to encompass biological males who identify as females.

Following the logic of the Fourth Circuit Court, Title IX can now be considered to ensure equal opportunities in education for girls and boys who identify as girls. The Obama administration did so in recent guidelines it sent to all public school districts on the subject. Yet in statutory construction, words have singular meaning throughout, so if the word “sex” is changed in the section related to bathrooms, it is changed for the entire statute.

The dissent picked up on this glaring problem, and wrote that such a reinterpretation of the term “sex” as applied to the whole of the statute would “render Title IX and its regulations nonsensical.” The majority even partly conceded that point, saying, “We agree that ‘sex’ should be construed uniformly throughout Title IX and its implementing regulations.”

This is an implicit acknowledgment that they have altered the entire statutory scheme of Title IX. Thus, if “sex” now means gender identity and not biological sex, then there is no real, functional purpose left for Title IX. An anti-discrimination law that affords special protection for women but also allows men to garner the same protection under the same law is absurd and illogical.

If the legal status of protected classes like race and sex are now based on an identity and not one’s actual race or sex, then it is reasonable to question the need or efficacy of all anti-discrimination laws. Any connection between law and reality has been severed. If a male can legally become a female by mere identification, what is to prevent someone from becoming a different race or age if he or she identifies as such?

We are now entering an era in which reality has become subjective, not in the Platonic sense, but as actual legal status having the force of law. The legal system is at a tipping point: is it going to address objective realities or be subject to the vagaries of judges deciding if someone’s identity trumps another’s anatomy? The age-old maxim of “justice is blind” is now a relic, as Lady Justice no longer wears a blindfold and judges are now actively picking and choosing whose liberties they value more by mandating compliance of the many to the will of a few.

This decision is yet another in a string of cases in which judges place their personal policy concerns over legal reasoning, statutory language, and, incredibly, students’ rights to bodily privacy. Results-oriented jurisprudence causes chaotic results in a precedent-based system because there is no legal rhyme or reason for how the judge reached a conclusion. This leaves states to sort out the collateral damage that comes with implementing a judicial decision without a coherent legal framework. In this case, two judges redefined “sex” under Title IX to get the result they wanted without addressing the ramifications of changing what it means to be a woman and the new effect that now has on Title IX.

The same justice system that provided liberty to millions with landmark anti-discrimination laws is now undermining those very laws by investing legal status in one’s psychology at the expense of his or her biology. The practical result is that vital anti-discrimination laws like Title IX may be rendered useless by the ironic efforts of those preaching “inclusion” and “tolerance.”


Zack Pruitt holds a J.D. from Saint Louis University School of Law and is director of public policy at the Family Action Council of Tennessee.

This article was printed by TheFederalist.com.

It’s Not Business as Usual, Governor, and Never Really Was

President Obama’s “guidance letter” asserting the U.S. Department of Education’s view that the word “sex” in Title IX includes gender identity has caused a firestorm in Tennessee. Gov. Haslam issued a rather tepid statement on Monday to which some legislators responded with the idea of a special session. The Governor’s response to that idea was, “Just exactly what are we trying to do, because currently no one is being sued?” Well, that’s not necessarily true anymore. So what’s next?

The Governor’s statement is not necessarily true anymore, because yesterday the Obama administration’s non-governmental enforcement arm, the ACLU, filed a complaint with the U.S. Department of Education asking it to investigate Sumner County’s school system for violations of Title IX. Why? Because it does not allow a boy who identifies as a girl to use the girl’s bathroom. And what does the ACLU cite as grounds for this Title IX violation? The Obama “guidance letter,” of course.

The Governor had previously said that “there’s nothing new” in the “guidance letter” and that schools should just keep on doing what they were doing. Well, obviously, the ACLU had a different interpretation of the Obama “guidance letter,” as did most legislators who were asking him to make it clear that the state would back up the local schools if they were sued.

Well, the Governor grossly miscalculated—not just because of the complaint filed yesterday, but because there has, indeed, been “something new” since the day the Obama letter was issued.

The “something new” that the Governor overlooked is that, as of last Friday, school districts had another factor to add into their locker room shower policy deliberations: “What do we make of the Obama ‘guidance letter’? Might an enforcement action follow? Will the ACLU use the ‘guidance letter’ as leverage in the threat of a lawsuit if we don’t let boys in the girl’s locker room shower?”

The reference in the “guidance letter” to the “condition” upon which schools take Title IX money was a shot across the bow of every school system in the state. The potential of losing perhaps hundreds of thousands of dollars cannot be ignored by local schools as easily as the Governor seemed to think.

School boards needed to know if the state was going to “have their back” if they continued to designate bathrooms and locker room showers based on biology rather than psychology and the feds or the ACLU came after them. The Governor did not ever say that, and that is why some legislators started talking about a special session.

Legislators, naturally protective of their local school systems, wondered what would happen if the feds began an enforcement action against their school. Would the state step in and defend them? Sure didn’t sound like it based on what was coming out of the Governor’s office and the office of the Attorney General.

Legislators knew that if the state was not willing to take on the federal government, then local school districts would be sitting ducks. And yesterday the ACLU, as should have been expected, fired a shot at the “duck” swimming in Sumner County.

That complaint, though, was why a growing number of legislators were talking about a special session prior to yesterday—to provide the kind of leadership that had been missing, to let their local school boards know they can keep doing what they are doing with the confidence that the state “has their back” if they do and they won’t fight alone.

Of course, that was the thinking before yesterday. Now, with the complaint going before the Obama administration and not an “independent” federal judge, can anyone really doubt that the Department of Education will not find a violation of federal law? For goodness sakes, they just sued North Carolina for the same thing Sumner County is doing!

Real leadership would put a stop to a foregone conclusion type of investigation by finding a way to sue the Department of Education. And if we were smart, we’d sue in the more friendly confines of the federal district court in East Tennessee.

If that means we need a new law to ensure such a suit can be brought, then so be it. It’s time for some real leadership and maybe the Legislature can provide it.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Making America Great Again

Eight years ago the theme “change we can believe in” helped usher Barack Obama into the White House. Will “making American great again” help usher Donald Trump into the White House? Perhaps so. But in my opinion, neither of the two major parties nor their presumptive presidential nominees have the recipe for making America great again.

Of course, some folks think America is still great, but, according to polls about American satisfaction, I think very few feel that way, particularly when it comes to where we’re heading as a nation. Escalating violence and racial strife, overrun borders, terrorism, political correctness, a victimhood mentality, rampant drug use, sexual craziness, dictatorial federal judges, a tyrannical President, and an inept and distrusted Congress are just a few things that bother so many of us.

To be honest, Donald Trump has touched on much of this in his politically incorrect way. In fact, his political incorrectness, I think, has been part of his appeal.

But identifying problems and pointing them out in ways that give voice to the unspoken frustrations many Americans have is not going to make America great again. To get well we must collectively diagnose the underlying condition that is causing our problems.

What, then, is our underlying illness? I think it is the same as that which Jeremiah said of Judah:

Has a nation changed its gods,
Which are not gods?
But My people have changed their Glory
For what does not profit.

For My people have committed two evils:
They have forsaken Me, the fountain of living waters,
And hewn themselves cisterns—broken cisterns that can hold no water
(Jeremiah 2:11,13 NKJV).

Like Judah, America has changed gods. Collectively we have forsaken as our societal foundation the God of the Bible and decided we can hew out a national future for ourselves without God. And we’re finding that the cistern we’ve hewn out and into which we’ve placed our hopes for the future is broken. Hope seems to be leaking out.

I know there are those who will disagree with my interpretation of our national beginning, but let’s be politically incorrect enough to say they are just flat wrong.

The Great Awakenings clearly led to our national independence. The common law, which was rooted in customs grounded in Christian principles, was our primary source of law. If you don’t believe my characterization of the common law, then read the introduction to William Blackstone’s Commentaries on the Laws of England, the lawyers “Bible” during our founding period. And while we didn’t get everything right at the beginning and often acted contrary to our great charter’s premise that nations are subject to the “law of nature and nature’s God” and that our rights came from God, the point is that such was the premise upon which we were founded.

Try bringing those thoughts into a political campaign, college classroom, or major corporate boardroom today and see how well you’re received. Not well, to put it mildly.

For America to be great again, we will have to collectively rediscover that it is God who holds everything, including nations, together, and things hold together when they operate according to the laws He has woven into His universe. But how is that rediscovery going to happen?

As indicated previously, America became a nation and began its trek to unparalleled greatness when the pulpits of the colonies became aflame. But they were aflame with preaching that tied God’s Word to the socio-political circumstances then existing. It was not the self-help, “be-your-best-person-now” psychobabble pabulum that infects so many (but, thankfully, not all) pulpits today.

If America is to become great again, what we need is a change in our pulpits, not just a change in the White House. Maybe Franklin Graham’s tour of the states is a start in the right direction.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Donald Trump, Conservatives, and the Obama Effect

Many in the Republican Party leadership are trying to understand the phenomenon of Donald Trump. And the question on the minds of many of them is what is his appeal to conservatives, particularly the social conservative, religious-right Republicans? I admit that I have no scientific polls and no Trump-voter psychological profiles upon which to base my thoughts, but here are five things I’ve observed.

The first is nothing really surprising. Many conservative Republicans are extremely angry with the Republican Party. I understand that. Even though many and perhaps a majority of those in that camp are supporting Carson, Cruz, or Rubio, the fact is that a significant enough percentage of them support Trump—and that is making a difference.

A second, related factor is that a number of conservatives simply don’t want anyone connected at all with Congress or Washington politics. Period. They no longer trust anyone associated with Washington. I think that’s the baby-and-the-bathwater thinking, but I understand it.

Third, I think some social conservatives have despaired of “values candidates” actually doing anything in support of their values. They have not lost their concern for the social values that drove them in the past to reluctantly support the Doles, McCain, and Romneys, and the do-nothing-but-make-excuses-for-inaction social conservatives who have been elected to Congress, but they have decided that supporting such conservatives isn’t going to result in those values being reflected in public policy.

So, at this point, I think some social conservatives see no reason to continue supporting candidates who run on those values simply because they espouse those values. They believe history has shown them it won’t matter, so they are voting for someone who talks tough on the other issues they care about. I don’t agree that social values don’t matter, but I understand how some have reached that conclusion.

What we see in the foregoing points is that the moderate, entrenched Republican leadership has driven a number of conservatives to Mr. Trump, which leads to my fourth observation—some conservative Trump supporters are sending a message.

Conservative Republicans have often spoken of not supporting a moderate Republican, supporting a moderate Republican presidential nominee, or voting for another party’s candidate, like the Constitution Party. But perhaps some of the conservatives supporting Trump won’t send the “message” they want to send to the moderate Republican leadership. After all, if they leave the party or vote for a third- party candidate, then the moderate wing of the Party will get its candidate and, perhaps for moderates, that is more important than actually winning the presidency. So, perhaps conservatives supporting Trump are making sure the moderate Republican leadership doesn’t get the nominee it wants and, for them, that message is a stronger message than if they left the party.

A fifth thing driving some of the conservative Republicans to Trump is what I call the “Obama phenomenon.” In 2008 Americans in large numbers knew things were wrong in America and looked at the fact that we were led by a Republican president. Consequently, they were looking for someone to give them hope that things could change.

Similarly, I think the support of some for Trump is reactionary in nature, fed by anger and frustration with Congress and the moderate Republican Party leadership. And, like Obama was for many fearful, angry Americans in 2008, Trump represents hope for change for these Republicans.

In conclusion, my concern in this election, as with any election, is that emotions not drive our decisions, particularly anger. I know from personal experience that anger rarely produces good results.

But beyond personal experience, I also know that the “anger of man does not achieve the righteousness of God” (James 1:20). While we usually apply that verse only to our personal lives, the principle is not so limited. God desires righteousness in civil government, and decisions in the governmental realm propelled by anger will not achieve that righteousness.

As we head to election day, my prayer is that fear, frustration, and blind hope for change will not prevent voters  from examining the values, policies, and character of all those who seek our support and then casting a vote that aligns with those things.


Photo Credit:
Mr. Donald Trump New Hampshire Town Hall on August 19th, 2015 at Pinkerton Academy in Derry, NH by Michael Vadon on Flickr. CC BY


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Resisting Syrian Refugees and the Road from Nashville to Nineveh

I did not want to write this commentary, yet I dared not write it. We need to make sure as a state and nation that we’re not driving down the road from Nashville to Nineveh.

Last Sunday afternoon, I was drawn to the short, oft-ignored book of Nahum in the Bible, and as I read, the Islamic terrorist attacks in Paris were in the back of my mind. Then came this week’s standoff between the President, Congress, and the governors of the states over the influx of Syrian refuges and the fear that some may be Islamic terrorists. At that point, I saw what I thought was a clear parallel between Nineveh and Nashville, not just Nashville as our capital city, but as a symbolic focal point of civil governments across our country.

Nineveh was a great city of the ancient world near modern-day Mosul, Iraq. It was once the largest city in the world, unmatched in its splendor, and apparently unassailable because of its high and impregnable walls. It is well known among Christians because it is the city whose residents repented and turned to God upon hearing Jonah’s prophesy of coming judgment.

However, the repentance of the Ninevites was relatively short-lived, and 100 years later Nahum prophesied that God was again going to judge the city and destroy it. This time there was no repentance and the city was destroyed so thoroughly that, until archeological digs in the 19th Century, it had almost passed from memory.

Nineveh was not destroyed because it was weak and had poor defenses. It was destroyed because, in God’s eyes, they were a “bloody city,” “full of lies and plunder.”

What does that have to do with Paris and Syrian refugees? Perhaps nothing. But for those of us who believe that God is the same today as He has forever been and forever will be, perhaps we should ponder the parallel.

I believe American Christians are biblically unwise to believe that if we can just close off our borders enough and keep terrorists from breaching our “walls” that we are impervious to destruction and defeat. If God has chosen to use Muslim terrorists to bring about His judgment, then those efforts of men will provide no more security for us than did Nineveh’s high and wide walls.

I’m not saying God has so decided, but only that, if so, we will not be “saved” by those things. Rather, we will be saved by the only thing that staved off God’s original intended judgment of Nineveh—repentance “from the greatest of them to the least of them” (Jonah 3:5) and a repentance that goes beyond being “sorry” to one that leads to action that resists and seeks to turn back personally and corporately from our ways that are evil in God’s sight.

In regard to our corporate evil, Nineveh reminds us that God, who does not change in His holiness and in the justice His holiness requires, will not forever tolerate a nation that does not resist and replace leaders who say that the murder of innocent children and homosexual “marriage” are constitutional rights.

Of course, there are other evils in our country and there are other ways in which we devalue life and wink at sexual immorality and denigrations of marriage. But when Christians continue to sit by and allow, without all the resistance they can muster, the image of God reflected in life and marriage to be defaced, then God’s judgment by some means at some point is assured.

This is where Nashville comes in. Our state leaders in Nashville (and in other states) are resisting President Obama on the matter of Syrian refugees. They are getting up the gumption to tell the federal government to “take a hike” when it comes to this issue. But that’s an easy issue on which to be bold, because Syrian refugees and their supporters are not a strong Republican voting block in Tennessee.

The real question is whether those in Nashville will be as bold when it comes to telling that branch of the federal government known as the Supreme Court to take a hike when it comes to its attempt to mandate to a sovereign state that it must pass a law condoning homosexual “marriage.”

If they won’t do that, then I can’t help but wonder if we’ll find Nineveh at the end of the road we seem to be traveling.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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