Gender identity splits Dems as liberal darling tanks Biden nominee, Title IX rules blocked again

Forcing public institutions to recognize gender identity is not only a problem for the Biden administration's Title IX regulation, which interprets the law prohibiting sex discrimination in federally funded education as prioritizing the subjective mental condition over biological sex.

It also sank a judicial nomination, marking the first time a Democratic senator voted against President Biden's choice for a federal district judgeship.

The fourth and fifth federal judges blocked the Title IX rewrite Thursday, the same day Sen. Jon Ossoff, D-Ga., rebuked the no-longer-certain Democratic presidential nominee for a magistrate judgeship whose recommendation got a biological man transferred to a women's prison.

President Biden's weakening lock on the nomination ahead of next month's Democratic National Convention slipped further that evening during his first news conference since November, when the commander-in-chief referred to Ukrainian President Volodymyr Zelensky as “President Putin” and his running mate as "Vice President Trump."

The developments suggest the administration's plans to expose girls and women to boys and men in settings long divided by sex, and compel students, teachers, doctors and insurers to treat transgender people as their opposite sex in language and medicine, may not only falter in court but worsen Democratic divisions before the convention and November's general election.

At least two federal courts have blocked the Department of Health and Human Services' regulation interpreting Section 1557 of the Affordable Care Act, which incorporates Title IX, as covering gender identity. A March ruling applies to Christian employers and their insurers, while this month a judge blocked the regulation nationwide under a new Supreme Court precedent.

Legal discovery in a challenge to Alabama's ban on so-called gender affirming care for minors revealed that pressure from HHS Assistant Secretary for Health Rachel Levine, who is transgender, influenced an international transgender health group's last-minute decision to lower its standards for minors, which are widely followed by American medical groups.

The consequences of enforcing protections for gender identity on par with sex are also on display in Switzerland, which removed a gender-confused teenage girl from her parents for their refusal to give her puberty blockers and let her school treat her as a boy.

Alliance Defending Freedom International is representing the parents, who remain anonymous in the litigation to get their daughter back, and is raising money for their legal defense.

Elon Musk, on his social media platform X Friday, called the removal "insane." The nurse who blew the whistle on the U.K.'s Tavistock Clinic for gender-confused children, starting a process that led the country to halt so-called gender affirming care for minors and end social transitions in schools, said the Swiss state is "captured by gender ideology."

"The Final Rule undermines over fifty years of progress for women and girls made possible by Title IX" and "endangers … all students," Judge Reed O'Connor, who struck down similar Title IX guidance last month in a lawsuit by Texas, wrote in a fiery 15-page order blocking the Title IX regulation's enforcement against the Lone Star State's Carroll Independent School District.

"Just like the subjective nature of ever-changing gender identity, the Department of Education picks and choose which 'niche' group to prioritize regardless of the consequences for everyone else and regardless of its authority," he wrote, referring to a Justice Department lawyer's minimization of the harms to non-trans students as "quite niche" at a July 8 hearing.

"Oral argument made clear" the regulation "functionally displaces the statutory language" of Title IX, O'Connor said, because DOJ claims "there is no material way to distinguish between sex and gender identity." The feds did not "adequately explain" how sex, which is "inherently objective and tethered to biology," is consistent with the "fluid notion of gender identity."

U.S. District Judge Matthew Kacsmaryk, also in Texas, blocked the regulation from taking effect against Texas, whose law "protects sex separation in K–12 and higher education athletic programs" and whose political subdivisions "extend this biological-sex mandate into intimate facilities," and against two University of Texas professors who believe they could be punished for "misgendering" under the regulation.

Kacsmaryk said the regulation "inserts men into the very Title IX spaces statutorily reserved to women," and that DOJ did not "adequately explain" how the SCOTUS ruling in Bostock, a Title VII employment precedent on gender identity, justifies the "inversion of the statutory text" in Title IX and education.

District judges answering to three U.S. courts of appeal – the 5th, 6th and 10th circuits – previously blocked the regulation in 14 states as well as schools nationwide where associational plaintiffs have K-12 students enrolled and where college members are enrolled.

America First Legal and the Wisconsin Institute for Law & Liberty, supported by public-interest groups and 16 states, are petitioning SCOTUS to give parents legal standing to challenge the Eau Claire School District's "explicit policy to usurp parental decision-making authority" by facilitating "gender identity transitions" and hiding them from parents.

. @DefendingEd filed a Supreme Court Amicus Brief in the Parents Protecting Our Children v. Eau Claire Area School District case.



School districts across the country are secretly effectuating the “gender transition” of children without ever informing parents, getting their… pic.twitter.com/EUyUOfLlDW

— Nicki Neily (@nickineily) July 12, 2024

A hero of the Democratic establishment for helping swing back Senate control in a runoff election in 2021, Ossoff told Courthouse News Service after his deciding vote sank Sarah Netburn's nomination to Manhattan federal court that he had "concerns about the wisdom" of her successful transfer recommendation as a magistrate judge in the same court in 2022.

Judiciary Committee GOP members also faulted her answer to ranking member Lindsey Graham, R-S.C., that Netburn is "unqualified" to say whether chromosomes determine sex because "I have never studied biology," The Hill reported. That echoes Supreme Court Justice Ketanji Brown Jackson's answer when asked at her confirmation hearing to define a woman.

Netburn determined the U.S. Bureau of Prisons violated the Eighth Amendment rights of July Justine Shelby and recommended the prisoner, who has intact male genitalia, be transferred to a women's federal prison "immediately." U.S. District Judge Vernon Broderick approved it.

The Washington Times reported that the 6-foot-2-inch prisoner previously known as William McClain served 24 years in prison for raping a 17-year-old girl and molesting a 9-year-old boy.

The Women's Liberation Front, which unsuccessfully challenged California's self-identification prison law and campaigned against Netburn's nomination, said McClain started taking cross-sex hormones and adopted the new name upon release.

Next sentenced to 15 years for distributing child pornography, Shelby is unlikely to threaten female inmates because the prisoner's hormone levels are "consistent with a woman’s … her pedophilic disorder diagnosis is in remission" and Shelby was only the victim, not perpetrator, of violence in men's prison, Netburn's recommendation says.

A former inmate at the women's prison "who remains in communication" with female inmates, and a lawyer for an inmate, told the Washington Free Beacon that Shelby "pulled his penis from his pants before a group of female inmates" and told them it still worked. Prison officials refused to discuss the allegations with Judiciary Republicans, the news outlet said.

Ossoff noted the Senate approved his legislation on prison oversight that was in part prompted by a "bipartisan investigation into sexual assault of women detained in federal prisons," Courthouse News reported. "I’m passionate about civil rights and human rights in carceral facilities,” Ossoff said, calling the issues "very challenging" for prison officials and judges.