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Not so surprising penalties

“Sometimes small gestures can have unexpected consequences. Large initiatives practically guarantee them. With these forward-looking words, Justice Neil Gorsuch opened his now famous 6-3 decision in Bostock v Clayton County (2020), which interpreted the phrase “for … sex” in Title VII of the Civil Rights Act of 1964 to mean he The following included: In addition to biological sex – homosexuality, sexual orientation, gender identity and transgender status. What Gorsuch called “unexpected consequences” – the astounding conclusion that half a century after Title VII came into effect that the law discriminated on trait that Congress repeatedly denied, most recently in HR 5 in 2019 – Justice Samuel Alito is more precisely described in the dissent as “legislation”.

Alito sourly pointed out that “the Court of Justice has abused the constitutional authority of the other branches and essentially adopted HR 5’s provision on discrimination in the workplace and issued it under the guise of legal interpretation. A brazen abuse of our power to interpret statutes is hard to remember. “Majority opinion in Bostock (along with Chief Justice John Roberts and the Liberal Bloc of the Court) raised concerns that” our decision beyond Title VII will shift to other federal or state laws that prohibit sex discrimination. ” How silly; “None of these other laws are before us,” he scoffed. And the parade of the terrible over the decline of “gender-segregated bathrooms, locker rooms and dress codes”? Gorsuch immediately dismissed such concerns: “We did not have the advantage of conducting controversial tests on the meaning of their terms, and we are not asking such a question today.”

The most controversial aspect of President Biden’s Executive Order, or at least the point that has received the most attention so far, is its likely impact on women’s sport.

Gorsuch and his colleagues were right about one thing in Bostock. Less than a year after the decision was made, Bostock’s “main initiative” – ​​a statement that Alito’s dissent harshly describes as “absurd”, “arrogant” and “illogical” – has guaranteed the inevitable (and not unexpected) consequences. Proponents of the LGBTQ agenda have cited Bostock as the authority on a general edict prohibiting all discrimination based on gender identity in President Joe Biden’s Executive Ordinance of January 20, 2021 to Prevent and Combat Discrimination Based on Gender Identity or Sexual Orientation or sexual orientation under federal law. The Executive Order explains:

Everyone should be treated with respect and dignity and be able to live without fear, no matter who they are or who they love. Children should be able to study without having to worry about whether they will be denied access to the toilet, locker room or school sports. Adults should be able to make a living and pursue a calling knowing they will not be fired, demoted, or mistreated for who they are going home to or because their clothes do not conform to gender stereotypes. People should have access to health care and a roof over their heads without facing gender discrimination. All persons should be treated equally by law, regardless of their gender identity or sexual orientation.

President Biden predictably cited the Bostock decision as the authority on this comprehensive decree:

These principles are reflected in the constitution, which promises the same protection of the law. These principles are also enshrined in our nation’s anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, as amended (42 USC 2000e ff.). In Bostock v Clayton County, 590 US ___ (2020), the Supreme Court ruled that Title VII’s non-discrimination law was “because of. . . Gender ”includes discrimination based on gender identity and sexual orientation. According to Bostock’s reasoning, laws prohibiting sex discrimination – including Title IX of the 1972 Educational Changes, as amended (20 USC 1681 et seq.), The Fair Housing Act, as amended (42 USC 3601 et seq.), And Section 412 of the Immigration and Citizenship Act, as amended (8 USC 1522), along with their respective implementing rules, prohibit discrimination based on gender identity or sexual orientation unless the laws contain sufficient evidence to the contrary.

The Executive Order expressly includes transgender status and is unlimited in scope:

It is my administration’s policy to prevent and combat discrimination based on gender identity or sexual orientation, and to fully enforce Title VII and other laws prohibiting discrimination based on gender identity or sexual orientation. It is also my administration’s policy to deal with overlapping forms of discrimination.

All federal authorities are instructed to review all existing orders, regulations, guidelines, guidelines, programs or other measures of the authority “as soon as possible” and to develop a plan for the implementation of the provisions of the Implementing Ordinance within 100 days, including a decision whether Agencies should revise, suspend or suspend non-compliant agency actions or publish new agency actions. In short, the Executive Ordinance is a revolutionary reformulation of federal policy with the stroke of a pen.

The most controversial aspect of President Biden’s Order, or at least the point that has received the most attention so far, is its likely impact on women’s sports. Title IX prohibits gender discrimination “in educational programs or activities that receive federal funding”. This includes sports programs run by schools that receive federal funding, including federal student loans. Therefore, under the terms of the Executive Ordinance, transgender women – biological men who identify as women – must be allowed to compete in women’s sports. Federally funded institutions will be forced to give biological men access to women’s sports and scholarships for women in sports. This would include virtually all colleges and universities, as well as almost every public high school in America.

Representative Mark Green (R-TN), a doctor, points out the incongruence of this development on the 100th anniversary of women’s suffrage:

Congress passed Title IX in 1972 to break the glass ceiling for women, but President Biden’s executive order reinstates that very glass ceiling. Title IX was based on the fact that the biological makeup of men and women is dramatically different. It is for this reason that Congress passed this important law to give women fair access to federal funding for sports and science. Prior to Title IX, only one in 27 women played college sports, but today nearly half of girls participate in college sports. Before Title IX, only 32,000 women participated in university sports, now 150,000 women. Before Title IX there were virtually no sports grants; today there are nearly 10,000 sports grants for women.

Allowing biological men to participate in women’s sports undermines the protection of women and is fundamentally unfair. The science is clear: men have about ten times the level of testosterone as women. Even after taking testosterone-suppressing hormones, a man’s bone and muscle structure remains intact. According to a new study, transgender athletes retain a competitive advantage even after a year of hormone therapy. According to this study, transgender women were 12 percent faster than biological women even after two years of taking estrogen.

As Abigail Shrier explained in the Wall Street Journal, the biological differences between the sexes are so pronounced that “the fastest woman sprinter in the world is American runner Allyson Felix, a woman with more gold medals than Usain Bolt. Her best lifetime for the 400 meter run is 49.26 seconds. Based on 2018 data, it could beat nearly 300 high school boys in the U.S. alone. “The competition between biological men and women is a misnomer. “In competitions involving strength and speed, the sporting gap between the sexes that opens up during puberty is both permanent and unbridgeable. Once male puberty is over, testosterone suppression does not reverse the biological benefits that men possess: bigger hearts, lungs, and bones, greater bone density, more oxygenated blood, faster twitch muscle fibers, and far greater muscle mass. “The decline of women’s sports is just the tip of the iceberg. Shrier explains, “Abused women’s shelters, women’s prisons and other secure rooms that receive federal funding and constitute ‘housing’ for the purposes of the Fair Housing Act could be next. Women’s rights turn out to be cheap and to be won. ”

Professor Nelson Lund, one of the many critics who attacked Bostock’s decision, wrote: “Bostock is a failed legal achievement. His argument that the words of Title VII’s Prohibition of Gender Discrimination clearly prohibit discrimination on the basis of homosexuality and transgender people is analytically untenable. “It is possible that President Biden would have adopted the same executive order without the decision by Justice Gorsuch in Bostock. We will never know. What we do know is that Bostock is prominently cited as the authority on federal policy reshaping by President Biden through executive dictates.

“Sometimes small gestures can have unexpected consequences. Large initiatives practically guarantee them. ” Indeed.

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