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.

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Will Gender Identity Go the Way of Sexual Orientation?

I have to hand it to liberals and sexual libertines—they come up with great words, and when those words develop certain connotations that may not be helpful to their cause, they change the definition. And if their word “gender identity” takes the same course as “sexual orientation,” then we’re headed for chaos.

You may recall, if you’re old enough, that those who engaged in sex with a person of the same sex were once called sodomites, not pleasant imagery in a culture familiar with Sodom and Gomorrah.

Then the word “homosexual” came along. That word, too, carried a negative connotation. Having sex with a person of the same sex, which is what the word meant, just seemed unnatural to most people. In fact, some state’s referred to such sex as “crimes against nature.”

Then came the word “sexual orientation.” As memory serves me, at first it simply was a nicer sounding word for homosexual behavior. In fact, for many of us, “sexual orientation” was really synonymous with “homosexual.”

Consequently, LGBT advocates came up with the brilliant strategy of rebranding the word “sexual orientation” and joining it at the hip with the evil word “discrimination.” The word “sexual orientation” morphed so that it no longer applied only to homosexuals, but to all persons; everyone, it was now said, had a sexual orientation and none was more “natural” than any other. This meant the laws prohibiting discrimination based on sexual orientation now ostensibly protected everyone.

The question is whether the word “gender identity” will someday soon morph, too? Perhaps it must if the gender wars are to be “won.”

Today, “gender identity” seems to carry the connotation of “transgender,” a person with a biological and/or anatomical structure reflecting one sex but who wants to be identified by the sex they think of themselves as being in their head. Even as the word “sexual orientation” was once synonymous with the word homosexual, “gender identity” is currently synonymous with transgendered persons.

The problem sexual libertines have is that most people are not confused about their sex and most people still want their privacy in those intimate settings in which persons of the opposite sex may be present. What has created the firestorm of opposition is the fact that a very small percentage of the population wants everyone else to adapt to them.

How can the gender identity crowd convince the overwhelming majority that laws against gender identity discrimination are good for them, too? What if the word “gender identity” sheds its narrow connotation and, as happened with sexual orientation, becomes something that everyone has? Now a law prohibiting discrimination based on gender identity ostensibly protects everyone! But there are two problems with that.

First, such a view of gender identity means no one is protected and Title IX’s protections against discrimination become meaningless. If, as a man, I can identify as a man or a woman (or something in-between), then the prohibition on gender identity discrimination means a state or business can no longer have a shower limited to women and to men who think they are women. Such a law would ban me from showering with the ladies simply because I “identify” consistent with my biology.

Such a law would simultaneously discriminate in favor of those who identify contrary to their biology, letting them use the women’s shower, and discriminate against those who identify consistent with their biology, not letting them use the same shower. Ironically, such a law essentially says I have to identify a certain way in order to do certain things, and that’s discrimination based on identity!

If we all have an “identity” and you can’t discriminate based on identity, then all you guys who can’t make the UT men’s basketball teams, don’t let the Lady Vols discriminate against you just because you “identify” consistent with your biology! You don’t even have to fake thinking you’re a woman anymore. Title IX is gone.

But the second problem is all binary distinctions between the sexes are gone, not just Title IX. C.S. Lewis ominously spoke of this day years ago in his book The Abolition of Man. Here is what he said regarding man’s “conquest of Nature”:

The final stage will come when Man, by eugenics, prenatal conditioning, and by an education and propaganda based on a perfect applied psychology, has obtained full control over himself. Human nature will be the last part of nature to surrender to Man. The battle will then be one. We shall have “taken the thread of life out of the hand of Clotho1” and be henceforth free to make our species whatever we wish to be. The battle will indeed be won. But who, precisely, will have won it?

The plan has all come together. Eugenics, with artificial reproduction, selective abortions, and gene manipulation virtually unrestrained, is now fully in place. Obama’s “guidance letter” is making sure the educational program is in place. Pop psychology today is providing the necessary assistance and, of course, the propaganda from the mainstream media has been in place for years.

Good point, Mr. Lewis. I wish we’d all read your book sooner, because we’re all about to lose.


  1. Clotho, in ancient Greek mythology, was responsible for “spinning the thread of human life.” She also made major decisions, such as when a person was born, thus, in effect controlling people’s lives.

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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The Tipping Point

In 1996 Malcolm Gladwell wrote an article called “The Tipping Point” (later a book), an analysis of how social behaviors reach a certain point and then “take off.” America is coming to a legal “tipping point” that will either restore the rule of law and the Constitution or destroy them both.

Last month I wrote about the first shot fired in the new “Civil War” when Gov. Cuomo banned all non-essential travel to North Carolina because it chose to designate multi-occupancy public bathrooms according to biological sex rather than gender identity. In the last ten days, the volleys in this new war kept coming.

Last week fifty-one families sued the Chicago public school system for its gender-bending bathroom policy, arguing that it violated their children’s constitutional right to bodily privacy that previous courts have found in the Constitution.

Fast-forward to this week. On Monday the state of North Carolina sued the United States and its Department of Justice on the grounds that the department has no authority to assert that the prohibition in the 1964 Civil Rights law against discrimination based on biological sex now means “gender identity,” the sex you think you are in your head. The Department of Justice immediately sued the state back.

The next day North Carolinians for Privacy, an unincorporated non-profit association, sued the U.S. Department of Justice and the U.S. Department of Education for, among other things, asserting as a “rule” its sex-means-gender-identity philosophy is unconstitutional because that “rule” was never lawfully adopted as a real rule in accordance with the administrative procedures act.

And while not widely discussed or appreciated, the lawsuit our organization has filed has added to this legal conflict. It asks our state courts whether the Supreme Court’s Obergefell decision on same-sex “marriage” invalidated our state’s marriage license statute or amended it, statutory amendments being something a court clearly has no constitutional authority to do. The Supreme Court had to do one of the other, because certainly no new statute has been enacted by the General Assembly that would authorize same-sex “marriage” licenses.

What does all this mean? It means the Supreme Court’s legitimacy is about to reach a tipping point.

In 1992 Justice Souter, in sustaining the constitutional validity of Roe v. Wade, said, “If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.” He added, “The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the nation to which it is responsible.”

All these lawsuits are putting the Court on a collision course with its legitimacy. They are putting the Court in a position in which it must begin to overrule, in some instances, literally hundreds of years of constitutional precedent and established norms of constitutional and statutory construction in order to reach the result its majority philosophically agrees with, which is the Obama administration’s position.

In the next year or two, these lawsuit will force the Court either to return to the rule of law and stop killing the Constitution by trying to make it a “living instrument” or kill the rule of law, kill the Constitution, and assert its supremacy over all things governmental in our nation. In other words, the Court is about to reach the legitimacy tipping point.

Personally, I suspect that the Court will reach the results it desires, not those that the Constitution and its precedence would require. That is when we will find out which of two tipping points Americans will have reached.

Will we have gotten to the point we just don’t care so long as we have a job and enough things to entertain us, or will we then realize the truth of what Justice Scalia said last summer—we are no longer our own rulers, but we are ruled by “a majority of the nine lawyers on the Supreme Court?” Only if we reach the latter tipping point will Americans take it upon themselves, as Scalia said, to remind the Court of its “impotence” and demand that Congress do something about it.

The tipping point is coming, America. What side will you tip toward?

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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Legislation of the Year

Hundreds of bills have been enacted into law over the last few months and, of course, even more got flushed down the proverbial gender-neutral toilet. The media has blown up stories over bathrooms, counselors, Bibles, and guns, but I think one of the best bills passed this year is one you never heard of. It could prove to be very important in controlling state government. And its potential impact became even more apparent by the Fourth Circuit’s “bathroom bill” ruling this week.

Try to stay calm as I tell you that the bill made changes to the Uniform Administrative Procedures Act. How, you think, could a person like me be excited about something as boring and irrelevant sounding as administrative procedures? I’ll tell you what the bill did that is so good, but you have to understand why the regulation of administrative procedures is so important.

In case you don’t know, administrative rules and regulations issued by government agencies are increasingly subversive of representative government.

The best, most current example is what has happened with Title IX. When Congress enacted Title IX, it prohibited discrimination in educational opportunities on the basis of sex. But Congress left its job undone (as is par for the course anymore), because it didn’t spell out how the law applied in a variety of situations, like with bathrooms and locker rooms.

So the U.S. Department of Education (DOE) started promulgating regulations to “interpret” the law, and those regulations have the force of law the same as if voted on by Congress. Congress lets DOE and its other agencies run wild.

For example, for two years Congress has let the Department of Education run around telling schools that the word “sex” in Title IX really means “gender identity.” Now the Fourth Circuit Court of Appeals said that what the department has been saying goes as law unless Congress does something to change that in the future (which it won’t).

But unlike Congress, Tennessee’s Legislature has done something about agency regulations. Except in certain instances, agencies must bring their rules and regulations before the House and Senate Government Operations Committee for review. When I was in the Senate (then controlled by Democrats), they were affectionately called the Government Oops Committees, because they had no power to do anything and consequently did nothing.

That has changed in recent years as the committees have increasingly used their power to discontinue agencies to “encourage” them to make changes. That has been good, but Senate Bill 2389/House Bill 2068 literally takes some power back from the government agencies.

First, the agencies can no longer just say to the committees that they need some regulation and explain why. The agencies must “demonstrate [to the committees], by convincing evidence, that consideration of [certain] factors . . . in their totality, justifies the continued existence of an agency rule.”

Those factors now include such things as proving that “the rule is necessary and essential for the agency to serve persons affected by the rule” instead of just necessary for “public policy considerations,” the old law. The agency must show that “the rule will result in economic efficiency for persons served by the agency and persons affected by the rule.” In other words, the question now is more whether the regulation is good for us, not the agency.

But the new law also gives the Government Operations committees a new power. In the past, the committees could vote to ask the agency not to adopt a rule, but that was it. Now the committee can vote to request that the General Assembly repeal the regulation. This isn’t huge, but a vote of a 19-member committee directed to the 99 members of the General Assembly to the effect that a regulation should be repealed will carry a lot more weight in the consideration of legislation to repeal that regulation than if the legislation was simply filed by an legislator unhappy with the regulation.

The Legislature beginning to assert its control over government agencies that can pour out rules and regulations faster than citizens can keep up with them is a good first step toward restraining government and putting government back in the hands of those who are more accountable to the people, our legislators instead of bureaucrats. Thank you, Sen. Bell and Rep. Daniel for bringing this legislation.

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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Finding the ‘Third Way’ on the ‘Bathroom Bill’

A couple of weeks ago, a woman testified before the House Education Administration and Planning Committee against the so-called “bathroom bill” with an emotionally compelling but logically self-contradictory argument. I do not question her intentions, but her argument reflects a way of thinking that, when embraced, makes all decision-making impossible. We saw the fruit of this kind of thinking in comments some legislators made when they had to vote on the bill Wednesday.

She argued that we had to move past binary thinking; her point was that we don’t need to think of sex as male or female based on biology. Binary thinking simply means that things that are one way are not another way. Up is not down or, as philosophers would say, “A is not non-A.”

Trying to Apply Non-Binary Thinking to a Binary Situation

The problem with her argument was that it was binary in nature. She did not argue in favor of only unisex bathrooms and single-user locker rooms. Rather, she argued that a person should be able to choose between the male bathroom/locker room and the female bathroom/locker room. That is a binary choice; that is binary thinking. She was not really arguing that there is no difference between the sexes (which would be non-binary thinking), but that the difference is psychological not biological (which is a binary way of thinking about sex).

It seems to me that true, logically consistent, non-binary thinking would assert that we should only have multi-use facilities for all persons to use. That argument would truly reflect the idea that there is really no difference between the sexes, a true non-binary way of thinking about sex. But very few people are ready to embrace that idea yet.

Even the businesses that are now saying the bathroom bill is discriminatory and that they are against all discrimination probably have either single-user, unisex bathrooms or bathrooms designated for use by male or female in their facilities. Probably very few, if any, have open sex multi-user bathrooms and showers. They discriminate, but they do so based on psychology not biology. And they for sure discriminate against the man who just likes to use showers and restrooms used by women!

Making an Either-Or Legislative Decision

Speaking in favor of non-binary thinking and non-discrimination is easy; living as if we don’t have to make choices and don’t have to discriminate is what is hard. This really becomes a problem when you are a legislator.

This Wednesday, when the bill was before the committee for a vote, some legislators said there had to be a better way to solve “this problem” than the way the bill solves the problem. But, as I told them, that’s just not really possible when you think about what the underlying issue is.

Legislators must decide between letting young people choose the bathroom they want to use based on their biological sex or based on their “psychological sex.” They must decide whether a boy who thinks he is a girl can use a bathroom used by biological girls or not. There is not a non-binary, third way.

Some legislators are mad at me because I seem to have put them in the position of making a tough choice, one that some constituents will like and other constituents won’t like. But that is just the nature of things; just the way God made the world. Perhaps they’re just really mad at Him for making them choose, something He’s “forced” on us since the Garden.

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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