On day one of his presidency, Biden signed the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” In doing so, he cheerfully lent the authority of the presidency to the destruction of sex.

Biden’s aim in the Executive Order was to pick up Obama’s transgender torch, momentarily doused by President Trump. Obama’s 2016 “Dear Colleague Letter on Transgender Students” informed educational institutions of the “civil rights protections for transgender students” under “Title IX of the Education Amendments of 1972.”

Title IX declares, “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” [emphasis added]. This was understood to be an extension of Title VII of the Civil Rights Act of 1964, which declared it “unlawful…to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin”.

“Sex” was included in the list of the Civil Rights Act because Representative Howard W. Smith—a Virginia Democrat and steadfast opponent of the Civil Rights Act—thought the addition would help congressmen opposed to the new feminist movement sink the Act. Smith’s failed attempt to scuttle the Civil Rights Act inadvertently prepared the way for Obama’s and now Biden’s championing of transgenderism.

How? By changing the original meaning of “sex” to include (in the words of Obama’s “Dear Colleague Letter”) “an individual’s internal sense of gender” which “may be different from or the same as the person’s sex assigned at birth.” From this perspective, the “internal sense of gender” is held to be fluid, and takes precedence over “sex”–indeed, it cancels biological sex as if it were without substantial reality.

Speaking Makes It So

This change of meaning required a lesson in linguistic re-identification. The Dear Colleague Letter explains that: “a transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.”

The word “sex” at the time of Title IX (1972), the Civil Rights Act (1964), and the previous several hundred million years of biological life on Earth, referred to the division between male and female. This fundamental biological division of “sex” was the very thing that allowed for the existence through reproduction of all generations of human beings and countless other living things leading up to Obama’s Dear Colleague Letter and Biden’s Executive Order. 

In a sweeping denial of history, and much to the surprise of a significant portion of the Kingdom of Animalia, suddenly in the early 21st century “sex” became something that was “assigned at birth,” a bureaucratic placeholder until a person could settle upon an “internal sense of gender.”  In this view, “sex” has no independent reality. As some cutting edge parents have concluded, that makes it wrong to let it be “assigned at birth”.

But as noted, Obama’s Dear Colleague Letter was voided by Trump’s Dear Colleague Letter of February 22, 2017. The reason Trump’s Department of Justice and Department of Education rescinded Obama’s directive was simple and straightforward: some people’s “internal sense of gender” was violating other people’s “sex,” as if the latter had no independent reality.

Obama’s Dear Colleague Letter demanded that a biological male (with all the requisite biological parts, which were apparently not assigned at birth) who claimed to be having an “internal sense” of being a female had to be allowed in women’s restrooms and locker rooms. Furthermore, this same individual “who identifies as female but was assigned the sex of male at birth” must be allowed to compete in women’s sports.

Trump’s Dear Colleague Letter sided with the reality of “sex” over “internal sense of gender,” in no small part because of the host of complaints and lawsuits brought on behalf of those who were “assigned the sex of female at birth.” It pointed out that Title IX used the term “sex” as referring to the basic biological distinction of male and female, and that Obama’s Letter used a “novel” interpretation that was not consistent with Title IX.

Title IX was specifically written to prohibit sex discrimination, discrimination against women, such as sexual harassment by males, and (on a more particular point) to affirm the necessity of sports for women in educational institutions that received federal funding, so they could compete with other women. And likewise, despite its origin, the inclusion of “sex” in the Civil Rights Act was understood by those passing it to be added protection for women against discrimination.

Perhaps the greatest act of harmful discrimination for women—other than demanding that they consent to having biological men in their bathrooms and locker rooms, as well as to having their sports commandeered by biological males—was having their fundamental human moral and legal identity declared to be something that was merely “assigned at birth” and could be overridden by someone else’s “internal sense” of gender.

The Trump Administration therefore removed the legal force of Obama’s Letter on transgenderism.

Supreme Sorcery

But the Supreme Court gave it new life in Bostock v Clayton (2020)—a present for the incoming Biden, wrapped in the specious reasoning of Trump appointee, Justice Neil Gorsuch. Whereas Congress had failed in several attempts to extend the Civil Rights Act and Title IX’s prohibition of discrimination based upon “sex” to “gender identity,” the Supreme Court simply declared that sex implies gender identity, even though those who passed the Civil Rights Act and Title IX only meant sex, as in biological male and female. The Supreme Court thereby did by judicial fiat what Congress had failed to achieve by the legislative process.

“The arrogance of this argument is breathtaking,” wrote Justice Alito, joined by Justice Thomas, in dissent. “The Court’s argument is not only arrogant, it is wrong,”  

For Alito and Thomas (and Kavanaugh in a separate dissent) the main problem is that the Supreme Court baldly usurped the legislative powers of Congress. But if that were the only problem, or even the main problem, then they are merely proposing that, to set things right, Congress should pass legislation that extends the legal protections of the Civil Rights Act and Title IX to those who identify as transgender. (This is, in fact, Kavanaugh’s suggestion.)

But the problem is far deeper than issues about separation of powers (though that is serious enough because very little of the sexual revolution in America could have occurred if it were not for judicial fiat).

The problem is the denial of sex itself. Sex cannot coexist with gender identity because the latter cancels the former. The Court tried to build the inclusion of gender identity upon the foundation of sex, so as to borrow the legal authority of the Civil Rights Act and Title IX for the cause of transgenderism. But that is impossible because the edifice of gender identity contradicts the very foundational reality of sex, the biological distinction between male and female.

That isn’t just a semantic problem. Ask the parents who fear for their daughters because they are forced to share locker rooms and restrooms with the opposite sex, or those women in sports who are fiercely angry at the betrayal of Title IX. But, alas, the Court has declared that when gender identity contradicts sex, sex loses.

The Court’s imposition of Obama’s Dear Colleague Letter by judicial fiat enabled Joseph Biden—on his very first day—to issue his Executive Order, and thereby add executive fiat to judicial fiat.

Time to Roar

Women, if they care to reclaim their legal protections on the basis of sex, must  expose this contradiction, especially within the Democrat Party that claims to champion the rights of women but now advocates the destruction of sex that undermines these rights.

One good place to begin would be to take up Tulsi Gabbard’s “Protect Women’s Sports Act of 2020” (H.R.8932), which now lies neglected in the House Committee on Education and Labor. Its goal is to stop the destruction of sex by making “it a violation of federal law for a recipient of federal funds who operates, sponsors, or facilitates athletic programs or activities to permit a person whose biological sex at birth is male to participate in an athletic program or activity that is designated for women or girls.”

Perhaps receiving a few thousand calls from aggrieved women constituents might awaken the Committee’s members. Moreover, if the bill were very publicly debated, it would force a welcome showdown between extreme and moderate Democrats about who really protects women. It might even awaken Old Joe from his ideological slumber.