Biden’s Bathroom Policy Misreads SCOTUS’s Bostock Decision

After nearly four years of leftist governance, Americans know the Biden administration habitually plays fast and loose with the law. This habit has been especially egregious in education, where the administration hopes to parlay the 2020 Supreme Court case on employment discrimination, Bostock v. Clayton County, into authority for new federal regulations under Title IX, a law that prohibits sex discrimination in education. Not only are the new regulations legally dubious, but they also defy common sense as they would force girls to share school bathrooms, showers, and locker rooms with boys.

Fortunately, the new regulations recently hit a major roadblock when federal courts in Louisiana, Kentucky, Kansas, and Texas issued preliminary injunctions against them, with additional injunctions in other courts likely to follow. These courts correctly rejected the Biden administration’s argument that Bostock creates some equivalence between hiring and firing employees and showering in high school locker rooms.

On the day he was inaugurated, President Biden directed all federal agencies to revise their policies to reflect the reasoning of the Bostock decision. Bostock held that the prohibition on employment discrimination in Title VII of the Civil Rights Act because of an individual’s sex includes terminating an employee simply for being gay or transgender. The court concluded that under the statute’s text, “sex plays a necessary and undisguisable role” in such termination decisions.

President Biden’s inaugural directive culminated in the issuance of the new regulations under Title IX. Litigation over the regulations centers principally on their redefinition of sex to include “gender identity,” which will have the effect of forcing boys and girls to share school bathrooms, locker rooms, and lodging on overnight field trips.

The Biden administration’s new regulations badly misconstrue Bostock. The court made clear that its decision applied to Title VII only, and it expressly declined to predetermine whether Bostock would “sweep beyond Title VII” to affect any other law prohibiting sex discrimination. Furthermore, the court assumed that the term sex in Title VII referred only to biological distinctions between males and females. Nowhere did Bostock redefine the term to include “gender identity” or “transgender status.”

Notwithstanding the narrowing language in the majority opinion, the dissenting justices predicted that activists would seek to leverage Bostock beyond Title VII. And as if on cue, the Biden administration published the new Title IX regulations.

Citing Bostock as authority for the regulations, the Biden administration insists that the term sex as used in Title IX includes not only biological sex but also “gender identity.” Although nothing in Bostock requires employees to disrobe, shower, or go to the bathroom in close proximity to members of the opposite sex, the new Title IX regulations would require schoolchildren to do so.

Besides reading Bostock too broadly, the new regulations ignore crucial differences between Title VII and Title IX, as well as long-standing cultural norms and simple common sense. Although some superficial similarity exists between the two statutes, the Supreme Court has recognized that they are vastly different. This is not surprising given that Title VII focuses exclusively on hiring and firing employees, whereas Title IX’s entire purpose is to ensure equal educational opportunities for women and girls.

Many of Title IX’s provisions recognize biological distinctions between the two sexes, and Congress made clear that separation based on biological sex does not constitute illegal discrimination in certain contexts. For example, Title IX expressly allows schools to “maintain separate living facilities for the different sexes,” and until the new ones, regulations under the statute had since 1975 allowed for separate toilets, locker rooms, and shower facilities. Title VII has no similar provisions.

An additional textual difference is that, while Title IX prohibits discrimination on “the basis” of sex alone, Title VII more broadly prohibits discrimination even where sex is only one of several motivating factors.

Lastly, Congress relied on separate sources of constitutional authority when it enacted the two statutes. While Title VII is framed as a general, outright prohibition, Title IX allows an institution to receive federal funding if it promises not to discriminate based on sex. The latter authority is more limited and requires that Congress not impose new conditions on its agreement to provide funding. For over 50 years, schools had been given no clue that by accepting federal funds, they would someday be required to discard the common, public understanding of sex.

By allowing males who identify as female to access locker rooms, showers, and other intimate spaces, Biden’s regulations subvert Title IX’s original purpose. The new rule turns a statute designed to stop discrimination against women into one that exposes women and girls to invasions of privacy, embarrassment, physical insecurity, and an increased risk of sexual assault.

The federal judge in Louisiana who issued the preliminary injunction rightly criticized the new rule as an “abuse of power” and a “threat to democracy.” The Biden administration simply has no constitutional authority to redefine fundamental statutory terms such as sex; such changes must come from Congress. Recognizing that Congress is unlikely to amend Title IX to accommodate its radical gender ideology, the Biden administration wants to shortcut the legislative process.

Fortunately, courts do not appear inclined to let them get away with it. The Supreme Court will undoubtedly soon be asked to clarify Bostock’s breadth, as well as the increasingly common intersection between identity politics and the law. In the meanwhile, schools in the 15 states covered by the preliminary injunctions will not have to turn a blind eye to biology or common sense.

Donald A. Daugherty, Jr. is Senior Litigation Counsel for the Defense of Freedom Institute. DFI is co-counsel with the Attorneys General for the states of Louisiana, Mississippi, Montana, and Idaho, which won the first injunction against the new Title IX regulations.