Thousands or more public comments were reportedly submitted to the Department of Education (DOE) in response to its proposed rule to Title IX – a law passed in 1972 under the Education Act to protect people from discrimination based on sex in education programs or activities that receive federal financial assistance. Title IX states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”- 20 U.S.C. §1681
America’s Future was among those submitting their opposition to the proposed change, explaining that it violates Title IX and exceeds any authority granted to the DOE by Congress. In our official comment of September 12, 2022 to the DOE, which you can read in its entirety here, America’s Future states:
“The radical redefinition of the word “sex” contained in the proposed rule runs directly counter to the text and history of Title IX. It is arbitrary and capricious because it constitutes a complete reversal of the Department’s well-reasoned opinion in August 2020 that Title IX in fact prohibits the denial of opportunities to biological females by allowing biological males to monopolize opportunities intended to be preserved for biological females. It is predicated on the unscientific falsehood that people can choose their sex, and it violates the very nature of the Created Order.”
Not only does their intention to re-define words that are in a 50+ year old Act of Congress fly in the face of longstanding common law rules of statutory construction and interpretation, but it also appears this agency is preparing to intentionally exceed its authority.
For the DOE to suddenly attempt to re-define this statutory language is suspicious at best – any reasonable person would agree the DOE is planning to act in a manner motivated by an agenda and based upon the totality of circumstances, the objective of this unlawful overstep appears to be an imposition on Americans of a “woke” gender ideology by unelected bureaucrats.
America’s Future believes that their collective gender ideologies and philosophies contravene biological science, physiological science and all notions of common sense which supports factual findings that there are physical, anatomical, hormonal and many other differences between males and females. For certain, and as we state in our comment: “It is clear that the furthest thing from the intent of the legislation was any suggestion of allowing biological males to invade the locker rooms and bathrooms of biological female students.”
Understanding the Process of Legislative Rulemaking
First, members of Congress draft legislation and distribute it to other members of Congress for review and feedback. Before a vote is taken and legislation is either passed or not, members of Congress have opportunities to revise, discuss and debate the proposed legislation and there are, almost always, voices of dissent in the room. Dissenting opinions and minority voices are cornerstones of our Constitutional Republic, including ensuring pieces of legislation are given adequate consideration in public and “on the record” before becoming law.
Second, once legislation passes Congress and the President signs off, law has been created. The next step is implementation of the law. To do this, departments and agencies of the Executive Branch – the bureaucrats – create informal regulations and policies for compliance by stakeholders. For agency regulations and/or policies to be valid, they must not conflict with the law passed by Congress and its intent at the time the law was created.
Third, while agency regulations are published in outline form in the U.S. Code of Federal Regulations, which is officially updated annually (the e-CFR is updated online every few days, but these updates are not considered “official”), they are expressed and explained more fully and in greater detail in the Federal Register.
In this case, Title IX underwent the formal rulemaking process of Congress, and the plain meaning of words like “sex” and “gender” at the time Congress passed this legislation are evident and have not been disputed in 50+ years.
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