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.