Opinion: Protecting freedom of speech and biological sex

In her weekly column, Nancy Churchill addresses the Biden administration’s legal attempt to rewrite Title IX

Nancy Churchill
Dangerous Rhetoric

Last Tuesday, “A federal district court ruled … to halt the Biden administration’s illegal attempt to rewrite Title IX while the lawsuit, State of Kansas v. U.S. Department of Education, continues.”

According to Alliance Defending Freedom, “The injunction covers not only the states of Kansas, Alaska, Utah, and Wyoming but also every school across the country attended by plaintiff Katie Rowland, the members of Female Athletes United, the members of Young America’s Foundation, and the minor children of the members of Moms for Liberty.” The states could lose billions in federal funding for their public schools if they don’t comply.

“The Biden administration’s radical redefinition of sex won’t just rewire our educational system. It means girls will be forced to undress in locker rooms and share hotel rooms with boys on overnight school trips, teachers and students will have to refrain from speaking truthfully about biological sex, and girls will lose their right to fair competition in sports,” said ADF Legal Counsel Rachel Rouleau. “The court was right to halt the administration’s illegal efforts to rewrite Title IX while this critical lawsuit continues.”

According to the Southeastern Legal Foundation, “In May 2024, Moms for Liberty and Young America’s Foundation sued the Biden Administration to stop its overhaul of Title IX—an unconstitutional attempt to gut Title IX’s guarantee that America’s schools afford girls the same opportunities as boys and protect girls and boys with sex-separate private spaces like bathrooms and locker rooms.

Represented by Southeastern Legal Foundation, the two organizations assert the claims on behalf of their members whose First Amendment rights are being trampled by the Biden Department of Education’s new regulation, which threatens to punish students for voicing their beliefs in biological sex and forces them to affirm views on gender fluidity, transgenderism, and queer theory.”

The “Biden Rule” would redefine “Sex”

Southeastern Legal Foundation’s article continues, “Biden issued an Executive Order unilaterally changing the definition of “sex” to include “gender identity” and ordered the Department of Education to rewrite Title IX regulations to forever remove equal access and other legal protections. Soon after, the Department of Education proposed changes to Title IX, claiming it had authority to do so as part of its rulemaking powers.

“The Department of Education (DoE) sought to change the definition of “sex” to include gender identity, lower the standard for finding harassment, force individuals to use incorrect pronouns that are not based on biology, and centralize all investigative and disciplinary authority under one campus Title IX coordinator.

“…the Department of Education forged ahead and ignored the public’s concerns, issuing a final rule (the “Biden Rule”) in late April 2024, which Moms for Liberty and Young America’s Foundation now challenge in court.”

In State of Kansas et al. v. U.S. Department of Education, “the states and organizations argue that the Biden Rule violates the Administrative Procedure Act and separation of powers because the Department of Education changed Title IX without congressional authority; that the Rule violates students’ First Amendment rights because it will compel them to affirm other students’ so-called “gender identity” and discriminates against opposing views; and that the Rule violates other provisions of the Constitution, including the Spending Clause and the Tenth Amendment.”

“The states and organizations are asking the Kansas federal court to declare the Biden Rule unlawful and unconstitutional and to stop its enforcement.”

The Purpose of Title IX: Protecting biological women

As the judge noted in his ruling, “Significantly, the purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, “discrimination on the basis of sex” included gender identity, sex stereotypes, sexual orientation, or sex characteristics’; The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education (emphasis added).”

“…Plaintiff Organizations assert that the Final Rule violates the First Amendment rights of individuals by compelling speech that aligns with Defendants’ ideology, censoring speech through content-based restrictions and viewpoint discrimination, chilling speech through vague and overbroad language, and forcing individuals to engage in speech that violates their sincerely held beliefs.”

“The Final Rule’s interpretation of sex and discrimination are therefore contrary to the statute and historical context of Title IX. The court finds that Plaintiffs are likely to succeed on their claim that the DoE exceed its statutory authority in expanding the definition of sex discrimination in the Final Rule… The DoE simply lacks authority to expand sex to mean gender identity.”

ACT NOW: Join one of the plaintiff organizations before July 15

In addition to the four states involved in the lawsuit — Alaska, Kansas, Utah and Wyoming — the injunction covers ALL schools attended by the children of members of Moms for Liberty, as well as the members of Young Americans for Freedom and Female Athletes United.

Washington parents concerned about protecting freedom of speech and the rights of biological women under Title IX can join Moms for Liberty here. Students can join Young Americans for Freedom here. Student athletes and their supporters can join Female Athletes United here.

According to the order, “Plaintiff Organizations are directed to file a notice in the record identifying the schools which their members or their members’ children, as applicable, attend on or before July 15, 2024.”

Take action today and join one of the plaintiff organizations before July 15 in order to protect your child’s school from the Biden Rule while this important lawsuit continues!

Nancy Churchill is a writer and educator in rural eastern Washington State, and the state committeewoman for the Ferry County Republican Party. She may be reached at DangerousRhetoric@pm.me. The opinions expressed in Dangerous Rhetoric are her own. Dangerous Rhetoric is available on thinkspot, Rumble and Substack.