'Crazy gaslighting': Foes of Biden gender identity mandate predict strength in numbers, court wins

Justice Department allegedly can't tell judge what expertise Department of Education has in human biology to justify deference to agency on Title IX. "Why are you waiting for validation from me?" former teammate of Lia Thomas says.

Published: June 20, 2024 11:00pm

With Pride Month in full swing, state officials, parental rights activists and a former teammate of transgender swimmer Lia Thomas urged supporters of sex-based rights to come out of the closet, loudly, to encourage fearful supporters to speak up through safety in numbers.

They gathered at the Heritage Foundation on Thursday to share strategies for defeating policies from the Biden administration on down that prioritize gender identity over sex, from schools to healthcare, in courts, legislatures, school districts and the public square.

The conservative think tank convened a larger group of state officials, athletes and activists nearby on the steps of the Supreme Court earlier in the morning to "discuss why lawsuits against this manipulation of" Title IX "are ultimately destined for the Supreme Court."

President Biden's new Title IX regulation, recently blocked in 10 states, would create presumptive male access to female bathrooms, locker rooms and athletic competition within the statute prohibiting sex discrimination in federally funded education, and require schools to treat the use of sex-based pronouns for a transgender student or teacher as sex discrimination.

At Heritage on Thursday, Southeastern Legal Foundation Executive Director Kim Hermann read aloud from her phone a snippet of dialogue reported by colleagues challenging the Title IX regulation on behalf of Moms for Liberty in a Kansas federal court Thursday.

The judge allegedly asked a Justice Department lawyer to explain what expertise the Department of Education has on human biology and sexuality that justifies judicial deference to the feds' new interpretation of "sex." The DOJ lawyer replied "I guess I'm not sure," according to Hermann's colleagues.

"There is no better example of the major-questions doctrine" than the sweeping redefinition of Title IX, Louisiana Attorney General Liz Murrill said at the Heritage event, referring to SCOTUS precedents that limit agency authority when Congress has not clearly delegated its power on a matter of "major national significance."

A second Trump administration could not repeal the Biden rule "overnight," warned Solicitor General Christian Corrigan of Montana, one of 10 states in which the regulation is blocked as of last week.

He helped write the Trump administration's Title IX regulation in DOE's Office for Civil Rights, which focused mainly on making sexual misconduct proceedings more court-like, which Biden's DOE erased.

But someone could submit a petition for rulemaking to OCR, as provided in the Administrative Procedure Act, to "tee things up" for a second Trump rewrite, and OCR could tell federally funded recipients the previous administration's rule won't be enforced because it creates unconstitutional chilling effects, Corrigan said.

Students in Democrat-run states will also have to file lawsuits against similar policies not affected by a Title IX rewrite and "get on the ground" by filing OCR complaints once a Republican administration comes in, Hermann said.

Louisiana Gov. Jeff Landry (R) signed legislation into law Wednesday, as part of a much bigger education package, in direct conflict with the speech-related part of the feds' rule.

The state's Given Name Act (HB 121) prohibits teachers from using students' preferred names and pronouns at odds with their sex without parental consent and protects teachers and students from discipline for so-called misgendering others.

Florida Education Commissioner Manny Diaz told the Heritage event the Sunshine State is hoping for an injunction in July against the Biden rule, which the grandson of Cuban immigrants called "Marxist coercion," in its own lawsuit. It already has state laws determining restroom and locker room access and athletic participation by sex.

"The federal government especially tries to bully our school districts. They get nervous," so Florida sent a "clear message we're not complying," Diaz said.

GOP states must go on the offensive to hold their school districts in line against federal pressure, Diaz said. When a district employee changed her son's records to female so he could compete on a girls' team, the athletic association penalized the school and Florida took action against the alleged offenders' certificates, he said.

Independent Women's Forum ambassador Paula Scanlan, who competed on the University of Pennsylvania swim team with transgender Thomas and calls herself a sexual assault survivor, said she thought the male swimmer's announcement of joining the team was a prank.

"We had to undress with him in the locker room 18 times every single week," she said. Administrators "told us we would never be able to find a job" if swimmers kept complaining, "emotionally manipulating us" to expect that "you are the problem" if a man comes in.

Comparing them to racial segregationists who were a threat to transgender lives was "incredibly effective" in shutting up her teammates even privately with each other, Scanlan said. 

The #metoo movement told women to "speak out when they're uncomfortable," but now "entitled" men sit adopt a pyramid of oppression and 35 female swimmers must "make the one man in the room comfortable" or face punishment, she said.

Scanlan said she spoke out because she didn't want younger girls to get intimidated, which other speakers echoed.

"All of a sudden this is normal," teaching kindergartners "who believe in Santa Claus" that they can be born in the wrong body, Moms for Liberty founder Tiffany Justice said. Children are now "propagandized from a very young age to suspend what is reality to them" and those who object are subject to "crazy gaslighting," Murrill said.

Advocates must emphasize that so-called social transitioning is the "first step" toward medicalization, Justice argued. "It was kind of embarrassing" when she gave up her teenage vegetarianism six months later, but for someone who is thinking of de-transition, "how do you walk that back as a teenager, especially after you've been love-bombed at school?"

Polling in Florida shows "90% of people [are] with us" on issues related to gender identity, and it's similar nationwide, according to Justice. Moms must get over their wariness to talk about politics and bring up sex-based rights at the dry cleaner and playground with peers, she said.

Constituents approach Diaz to thank him for defending girls, and "they can count on us to take those arrows up front," but officials won't show courage until they see a movement, he said. "We need you to be vocal, we need you to show up."

When she worked in finance in New York City, Scanlan said people who knew her swim history asked what she thought of Thomas on the team and were relieved when she opposed it.

"Why are you waiting for validation from me?" Scanlan said she would respond. "You have to speak up, and if you do other people will come with you."

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