Within hours of his inauguration, President Biden signed an executive order entitled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” It would more accurately be called “Promoting and Enforcing Transgender Activism.”
Here, Biden is simply picking up where President Obama left off. But where Obama introduced his overreaching gender-identity policies by the backdoor — for example, in a 2016 “Dear Colleague Letter on Transgender Students” issued by the Department of Justice and Department of Education — Biden is more explicitly laying out his administration’s plans for instituting transgender ideology in every sphere of life from schools, locker rooms, and sports teams, to health care and homeless shelters.
The executive order instructs “the head of each agency” to review all existing regulations where a prohibition on “sex discrimination” appears, and to apply the “prohibitions on sex discrimination on the basis of gender identity or sexual orientation” from the Supreme Court’s ruling last summer in Bostock v. Clayton County.
This is overreach, plain and simple. In Bostock, the court explicitly restricted its decision to Title VII, stating that “other policies and practices,” such as “bathrooms, locker rooms, or anything else of the kind,” were “questions for future cases.” By contrast, the executive order takes Bostock’s fallacious reasoning — that discrimination on the basis of “gender identity” necessarily “entails” discrimination on the basis of sex — and applies it to “any other statute or regulation that prohibits sex discrimination.”
As we warned at the time, Bostock’s sophistry has only served to encourage the transgender lunacy of Democratic radicals. For decades, the Supreme Court upheld that sex discrimination occurs when one biological sex is treated less favorably than the other sex because of sex. It did not require employers to treat one sex as though it were the other by following, through smoke and mirrors, the fashionable dictates of transgender ideology.
In concluding that employers had to treat male-born employees claiming transgender status as females, the Court relied on the ACLU’s fallacious “but for” reasoning: But for the fact that a self-identified transgender employee had been born a male, he would have been treated as any other female employee. This opens up a Pandora’s Box of absurdities. But for the fact that a convicted rapist was born male, he would be imprisoned in a women’s prison. (This has already happened in the United Kingdom and in California.) But for the fact that a mediocre athlete was born male, he would be able to completely dominate in female athletics. (This has already happened internationally and in the state of Connecticut.)
The legal confusion Bostock caused by obfuscating reality has advanced the cause of transgender extremism. In August, the Fourth Circuit cited Bostock in finding in favor of a female-born transgender student suing her school board over their sex-based bathroom policy. The Eleventh Circuit reached a similar conclusion in Adams v. School Board of St. Johns County, Florida. The lawyers representing female athletes in Connecticut who object to their displacement by young men identifying as transgender have been told by a judge that they must refer to the males in question as females.
On January 8, the outgoing administration’s Department of Education released an internal memorandum, noting that even Bostock acknowledged the material reality of sex and that the court had specifically refused “to extend its holding to Title IX and other differently drafted statutes.” Moreover, Title IX, the memorandum said, “contains numerous exceptions authorizing or allowing sex-separate activities and intimate facilities to be provided separately on the basis of biological sex.” This commonsense statement stands in stark contrast to Biden’s executive order.
The order is just a warm-up act to the Equality Act, which passed the House last year and which the Biden administration has promised to pass and get signed into law within the first 100 days. If this were to happen, it would redefine sex in the law as a formal matter, and make the destruction of women’s sports, spaces, and hard-won rights complete.