PRESS RELEASE: DFI Combats the Biden Administration’s Abuse of Power, Fights for Women’s Rights and the Rule of Law in Title IX Case Before the 6th Circuit Court of Appeals

WASHINGTON—The Defense of Freedom Institute for Policy Studies (DFI) filed a friend of the court brief today in The State of Tennessee v. U.S. Department of Education asserting the Biden administration does not have the statutory authority to change the definition of “sex” in Title IX to include “gender identity.” DFI argues that an injunction against the Department’s Title IX guidance announced in June 2021 should stay in place.

Left unchallenged, the guidance would, among other concerns, require schools, colleges, and universities to allow males who identify as females to participate on female athletic teams and have access to sex-segregated bathrooms and locker rooms that comport with their “gender identity.” Nineteen state attorneys general, led by Tennessee, are fighting implementation of the new guidance.

“The Biden administration is contorting Title IX to impose a radical gender ideology on students and their schools,” said DFI President and Co-founder Bob Eitel. “DFI is proud to support Tennessee in its fight for students and the rule of law.  When Congress passed Title IX more than 50 years ago, it did so clearly in an effort to ensure equal educational opportunities, in the classroom and on the athletic field, for women and girls based on their biological sex recognized at birth.  The Biden administration’s confounding interpretation of the term ‘sex’ not only flies in the face of congressional intent—it’s harmful to women and girls.”

As stated in the brief, “Title IX did not arise in a vacuum.  It was the product of a long struggle to seek and obtain equality for biological women vis-à-vis biological men and should be interpreted consistent with that context.”

The Biden administration attempts to base its Title IX guidance on the Supreme Court decision in Bostock v. Clayton County, which was a case decided under a completely different law governing the workplace, Title VII.  DFI argues that Bostock does not extend to Title IX given the text and purpose of Title IX, with its clear references to binary, biological sex, as well as the social norms at the time of Title IX’s passage.

“In assessing the ordinary meaning of a statute, the late Justice Scalia counseled ‘the acid test of whether a word can reasonably bear a particular meaning is whether you could use the word in that sense at a cocktail party without having people look at you funny,’” states the brief. “Interpreting ‘sex’ to include ‘gender identity’ plainly fails this test as ‘[a]ny such notion would have clashed in spectacular fashion with the societal norms of the day.’”

DFI has a long track record of pushing back on the Biden administration’s attempts at executive overreach and its radical interpretation of Title IX.  To learn more, click here.