On Tuesday, January 31, 2023, America’s Future joined six other tax-exempt nonprofit organizations to submit an Amicus brief to the United States Court of Appeals for the Sixth Circuit in Tennessee, et al. v Department of Education, 6th Cir. Dkt. No. 22-5807 (2022), arguing the lower court appropriately issued a preliminary injunction enjoining the Department of Education (DOE) from implementing a Final Agency Interpretation document published in the Federal Register on June 22, 2021, which indicated an intent, on the part of the administration and its agencies, to wildly misinterpret and misapply the 2020 SCOTUS decision in Bostock v Clayton County, 140 S. Ct. 1731 (2020) in an effort to materially modify Title IX’s prohibition on sex discrimination.
In Bostock (2020), SCOTUS held, “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.” The misapplication of this ruling is clear. First, the ruling only addresses Title VII, i.e., circumstances involving employment law – in fact, Title IX is not even mentioned in the majority opinion; and second, the ruling does not paint “gender identity” with a broad brush like this administration has attempted to push through by way of agency regulations since day one. In fact, on day one in office, President Joe Biden issued Executive Order (EO) 13988, setting forth Biden’s misapplication of Bostock (2020) and requiring all executive branch agencies to assess all regulations in order to find ways to implement his distorted view of the ruling and his newly created definitions of “sex” and “gender.”
In fact, under the DOE interpretation at issue, a person could declare to be one gender on Monday and then, on Tuesday, declare to be a gender inconsistent with the day before and the day after. Broadening Title IX’s restrictions to include prohibitions based on sexual orientation and/or gender identity without first accepting biologically-based definitions, to fit an absurd woke agenda leads to alarming and risky situations. If the definitions of “sex” and “gender” are not concrete and clear, but rather they are redefined by Biden’s EO as fluid, it would be akin to denying biological differences between males and females and blurring lines of age-appropriate customs and behavior by permitting young biological males to identify as females at the blink of an eye (or vice versa) lends itself to kids, teens, and young adults finding themselves in precarious situations, e.g. being members of the same interscholastic and collegiate sports teams, using the same bathrooms, and changing clothes in the same locker rooms or confined areas. The totality of these circumstances are not only unfair to kids, teens and young adults but to parents as well, causing confusion and degrading the family unit, as we know it. Children, particularly, are vulnerable to this sort of perverted DOE regulation and must be protected by rational adults and the courts.
Here, the executive branch, through the Biden administration and its DOE, has been emboldened by the employment law decision in Bostock (2020), deciding to “cash in” and advance their “gender identity” disturbing goals with reckless disregard for the Constitution and certainly for principles underlying America’s Separation of Powers doctrine. The executive branch is prohibited from usurping the authority of the legislative branch, which is exactly what they are attempting to do by way of this Final Agency Interpretation document.
Additionally, the Biden administration is attempting to force a square peg in a round hole to further their agenda by conjuring up make believe definitions, issuing EO’s, and misapplying a SCOTUS ruling – all in contravene of the Constitution, particularly the Ninth and Tenth Amendments which limit the federal government’s power over subject matters like health, welfare, education, and the everyday affairs of citizens. This administration continues to exhibit a total lack of restraint determined to usurp the authority of the other two branches.
Our Amicus brief recognizes and supports the district court’s jurisdiction and sound order enjoining the DOE from furthering its goals and agenda, which, as our Amicus brief states, “undermine the morality of the nation.”
To protect children and to protect discrimination targeting females in Title IX, we, at America’s Future hope the Sixth Circuit Court of Appeals affirms the lower court’s injunction preventing wide-scale chaos and dangerous behavior holds to account those who are willing to destroy America.
Editor’s Note: For more information on this case, read our previous article on this case: SCOTUS To Decide Blockbuster Social Media Censorship Case In October 2022 Term. To read our September 12, 2022 “comments” letter in response to the DOE’s redefinition of gender, please click here.
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