On January 20, on the day of his inauguration and in one of his first acts as president, President Biden signed an Executive Order entitled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” This order states that a person’s transgenderism cannot be taken into account by federal agencies or any recipient of federal government funding when making decisions affecting the transgender person.
It is no secret that the objective of the directive is to advance a key tenet of the left’s agenda: the elimination of any distinctions between males and females on college and university campuses – even high school campuses. However, not only is this sort of thing counterintuitive, a parallel policy announced two days later covering the military shows that even Biden is not so sure about where he is taking the country.
According to the Executive Order,
Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports…. People should be able to access health care and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law no matter their gender identity or sexual orientation….
These principles are…enshrined in our Nation’s anti-discrimination laws, among them Title VII of the Civil Rights Act of 1964…. In Bostock v. Clayton County, the Supreme Court held that Title VII’s prohibition on discrimination “because of…sex” cover discrimination on the basis of gender identity and sexual orientation. Under Bostock’s reasoning, laws that prohibit sex discrimination…prohibit discrimination on the basis of gender identity or sexual orientation….
But hold on there. Yes, as the Wall Street Journal noted, in Bostock, the Supreme Court told us that Title VII of the Civil Rights Act of 1964 prohibited an employer from firing an employee on the basis of homosexuality or “transgender status.” However, the Court also went out of its way to state that in the decision “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” So at the very least, the Executive Order’s reliance on the Bostock ruling is misleading and disingenuous.
Nor would a transgender student be denied access to restrooms or locker rooms – only perhaps to those of their own choice. But, surely their choice is not an abstraction but something that has real world consequences for others. Should their sensitivities trump those of the overwhelming majority of students?
And of course, the overarching issue here is whether male students identifying as female transgenders should be able to compete in girl’s sports events. Yet, the Executive Order takes no account of the obvious male over female competitive strength advantage. Again, though, the notion of discrimination is wholly misplaced when, as here, there are legitimate and sound policy reasons to make decisions based upon physical sex at birth.
Consider also the Executive Order President Biden signed on January 25. In it, Biden declares that “All Americans who are qualified to serve in the Armed Forces of the United States should be able to serve….”
He then adds some gloss: “Therefore, it shall be the policy of the United States to ensure that all transgender individuals who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and free from discrimination.”
For the president, the only issue he is addressing is whether a transgender’s status can be an automatic disqualifier for military service. And while nowhere does he openly acknowledge the need to adjust “appropriate standards” to account for physical differences between a male soldier and a self-identifying transgendered male soldier in particular contexts, it is a self-evident proposition that there are missions requiring a certain level of stamina and physical strength that would presumptively distinguish the two. Indeed, his use of the phrase “appropriate standards” seems to point to an awareness of the possibility. In a word, he cannot be and we do not believe he is, oblivious to the issue.
And this is part of what the new Secretary of Defense, Lloyd J. Austin III, had to say about the Executive Order on transgender service in the military:
The United States Armed forces are in the business of defending our fellow citizens from our enemies, foreign and domestic. I believe we accomplish that mission more effectively when we represent all our fellow citizens. I also believe we should avail ourselves of the best possible talent in our population, regardless of gender identity. We would be rendering ourselves less fit to the task if we excluded from our ranks people who met our standards and who have the skills and the devotion to serve in uniform.
Again, the emphasis on performance.
So, it would seem the president is prepared to risk a social experiment in the educational sphere but not in life or death situations. But sports participation has always had distinct gender constituencies such that the distinction should have no relevance.