Attorney General Paxton sent a letter to Secretary of Education Miguel Cardona pushing back against an ill-advised proposed federal rule that redefines sex based on “gender identity” and “sexual orientation” rather than objective reproductive biology.
The Biden Administration is attempting to implement the radical change by citing Bostock v. Clayton County, a 2020 Supreme Court case that addressed employment discrimination on the basis of “gender identity” and “sexual orientation.” But the Biden Administration has failed to acknowledge the Supreme Court’s explicit directive in Bostock that its ruling in that case should not “sweep beyond Title VII to other federal or state laws that prohibit sex discrimination,” which includes Title IX.
Many people disagree about the nature of “gender identity” and “sexual orientation,” as well as the legal implications of those concepts. But the new rule allows the objective, scientific-biological view to be treated as “sexual harassment.” This represents a serious threat to students’ First Amendment rights to discuss these issues. The rule also diminishes due process protections for individuals accused of such harassment, meaning that students could face life-altering punishments without knowing exactly what they’re being punished for and without the constitutionally protected right to defend themselves.
As Paxton’s letter states: “Everyone agrees that academic institutions should take a hard stance against sexual harassment and discrimination in education, including by enforcing Title IX, as enacted by Congress. That commitment, however, should not come at the expense of other students’ rights; nor should it force recipients to assume responsibilities that are not prescribed by statute. The Proposed Rule violates both principles.”
Additionally, Attorney General Paxton has joined two other multistate letters sent to Secretary Cardona highlighting the substantial problems with the proposed rule. A Montana-led letter, which can be read here, highlights how the rule will limit protected single-sex facilities, hurt women’s sports, and chill free speech. And an Indiana-led letter, which can be read here, demonstrates how the rule threatens the constitutionally protected right of parents to direct their child’s education and states’ rights by preempting state laws.
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