OPINION: Biden Administration Declares War on Biology — and on Women

Last week, the Biden Administration issued a radical Executive Order through the Department of Education which effectively erases equal rights and opportunity for women. Almost 52 years after the enactment of Title IX of the 1964 Civil Rights Act, ironically a law designed to prevent sex discrimination against women and girls in education and sports, the Biden administration added gender identity to the definition of “sex” in Title IX. The change in definition moves the term from a matter of core biological truth to a matter of personal selection.

The highly controversial rule dictates the loss of federal funding for any educational institution’s failure to comply with this unscientific re-definition of sex, which could mean billions of lost funding for schools that are charged with simply teaching reading, math, biology, history—and reality. People may identify however they want and live their lives as they choose. But the reality is there are only two sexes: male and female. And the reality is this rule will take away 52 years of advancements in women’s rights—and give them right back to men. Women are hurt the most when basic biology is ignored.

The rule applies regardless of how little federal funding a school or university receives and regardless of whether the funding is direct or indirect.  So even the majority of private schools will be forced to comply with the new rule.  

The rule has understandably been met with swift backlash from across the country because under the new rule:

• Girls and women no longer have any privacy or safety in historically sex-separated spaces such as bathrooms, locker rooms, prisons (they receive federal education dollars), dorms, sorority houses, or other educational programs;
• Men will take scholarships and women’s places in other educational opportunities;
• It erases 1st Amendment free speech protections for students and teachers who don’t want to be forced to use preferred pronouns;
• It removes parents’ right to know if their child is in the process of a gender identity social transition at school;
• It erases due process protections for students accused of sexual misconduct (for example the right to introduce evidence, to call witnesses, to cross examine witnesses, and to be represented by an attorney during any school investigation);
• It harms natural childhood development by redefining sex and gender, as up to 98% of children who struggle with their sex as a boy or a girl come to accept their sex by adulthood; and
• It can be used to impose K-12 curriculum in schools that promote radical comprehensive sex education and critical gender and queer theories.

And just to illustrate how political these new regulations are, the Biden Administration intentionally did not address school sports right now, as the Administration is waiting until after November’s election to mandate that boys must be allowed to play on girls’ teams.

Congress, the branch constitutionally empowered with actually writing our laws, had a chance in 1964 to add “gender identity” to the original Civil Rights Act—it did not.  Congress had another chance in 1972 to add “gender identity” to the definition of “sex” under Title IX—it did not. Congress had yet another chance in 1987 to amend Title IX to include “gender identity” when it amended Title IX under the Civil Rights Restoration Act. But again, it did not. Indeed, Congress could have acted at any time in the last sixty years to define “sex” as being synonymous with a person’s identified “gender.” It’s silence on the issue over these many decades is telling. 

An executive agency such as the Department of Education has no power under our Constitution to write completely new laws—it may only promulgate “rules” or “regulations” that implement or interpret laws passed by Congress. It is clear Congress never passed nor intended to pass a law to change the definition of “sex.”

States like Mississippi need to be prepared to protect girls and women against this attack from the federal government. In 2021, Mississippi passed The Fairness Act preventing boys and men from competing in women and girls’ sports. This was a good first step; however, more must be done.

The SAFER Act, sponsored by Senators Josh Harkins and Jeremy England, prevents boys and men from entering female private spaces such as bathrooms, locker rooms, dorms, and sorority houses, and is currently before the legislature in conference committee. The goal of the bill is to protect the safety and privacy of young girls, as they are being sexually assaulted in their safe spaces across the nation. In recent polling of registered voters in Mississippi, a remarkable and bi-partisan 95% thought it was important that Mississippi law protect private spaces for women. The need for this Legislation has only increased with the Biden administration’s new rule.

The ability to push back is not limited to the Mississippi Legislature. The Mississippi Department of Education and Institutions of Higher Learning should make clear to all of our educational institutions that no Mississippi school, university, or college will abide by this unconstitutional rule change. Louisiana’s Department of Education has already done so. This fight is not limited to biological women. I call on all men to courageously stand and fight with us.

Equality cannot be created for one group by taking away rights from another group, and this new rule will destroy Title IX’s guarantee of sex equality for women in education and sports. As a former college athlete, someone who cares deeply about reality, and as an attorney, I can promise you that lawsuits challenging this illusory rule are about to quickly pour in—and I hope Mississippi leads the way.  We cannot shrink away from this fight. This is a hill worth dying on.