On Monday, President Donald J. Trump made his triumphant return as the leader of the United States of America.During his inaugural address, Trump announced, "As of today, it will henceforth be the official policy of the United States Government, that there are only two genders, male and female.” While Trump’s policy is the correct one from a common sense, safety, and fairness perspective, it will likely face legal challenges.
The legal challenges are likely to stem from the Supreme Court’s decision in Bostock v. Clayton County, Georgia, where the Supreme Court ruled that the term “sex” includes a person’s “gender identity” in cases of discrimination pursuant to Title VII. The Bostock majority held that “Title VII’s prohibition against ‘sex discrimination’ includes a prohibition against discrimination based on sexual orientation and gender identity.” In other words, since Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, it also protects against discrimination based on “gender-identity,” which falls under the umbrella of the term “sex,” as used in Title VII.
While the Supreme Court specifically noted the limited reach of the Bostock decision to cases involving Title VII, the majority’s reasoning in Bostock created a window of opportunity that some would ultimately exploit. Specifically, in the opinion, Justice Neil Gorsuch noted that what matters is that an employer “who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
At the time, opponents of the decision criticized the opinion due to its broad definition of the term “sex” and the potential problems this definition would cause down the road. As if on cue, then President Joe Biden issued an executive order which, in essence, threatened to “take federal education funds away from any state that refuses to allow transgender athletes to compete in whatever category they feel like choosing.” The Department of Education later announced that, based on the court’s decision in Bostock and the broad definition of “sex,” transgender students in any educational setting that received federal aid were protected under Title IX.
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Unfortunately, yet predictably, the majority’s definition of the term “sex” in the Title VII context has led to additional concerns and legal challenges in other contexts, including but not limited to whether biological men could compete against biological women in school sports, whether they could use a locker room or shared bathroom associated with their gender identity/preference as opposed to their biological gender, and whether an individual (i.e., a student) could face discipline or legal consequences for failing/refusing to use someone’s preferred pronoun.
By way of example, according to the New York Post, Lexington, Ky. US District Chief Judge Danny Reeves recently ruled against the Biden administration’s effort to rewrite Title IX in a manner that would interpret the term “sex” to include all “gender identities.” Additionally, in response to several legal challenges, the Supreme Court recently denied the Biden administration’s request to temporarily enforce the various changes to Title IX in accordance with an April 2024 rule, three provisions of which were challenged. According to SCOTUSblog, the first provision provided that sexual discrimination under Title IX included discrimination based on gender identity. The second provision provided that a school violates Title IX if it bars transgender people from using a bathroom or locker room consistent with their gender identity. Finally, the third provision included harassment based on gender identity as part of its definition of “hostile-environment harassment.”
The risks associated with the proposed changes are clear and obvious. For example, biological women will lose out on opportunities if they are forced to compete against biological men in sporting events, as this practice is inherently unfair (not to mention unsafe for women in some contexts). There are also potential safety and privacy concerns if men and women are permitted to use the same locker rooms or bathrooms. Additionally, there are potential constitutional questions, including those involving the First Amendment, if a student, for example, can be punished or sued for failing/refusing to use someone’s preferred pronoun that aligns with his/her gender identity.
These concerns, among others, will undoubtedly continue to be litigated. As a result, and due to the Supreme Court’s decision in Bostock and subsequent cases, Trump’s recent announcement that the United States government would only recognize two genders will likely face legal challenges.
From a practical standpoint, and from a fairness, safety, and/or common-sense perspective, Trump is correct. Ultimately, unless Congress revises/amends one or more of the applicable/relevant laws, which is doubtful these days, the courts might have to decide. Hopefully, the courts recognize the potential risks associated with Biden’s proposed changes and use/apply common sense if/when presented with these various challenges.
Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, Townhall, Write Revolution News, and other online publications. He has also appeared on OANN’s Tipping Point, Newsmax, Steadfast and Loyal Podcast with Allen West, and Real America’s Voice. The views expressed herein are the author’s own and do not constitute legal advice.
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