Title IX: Parents or Government?
Michael Ramey
February 27, 2024
Title IX of the Education Amendments of 1972 holds that, with certain limited exceptions, “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.”
The current Administration’s proposed new rules require an interpretation of the word “sex” here to include “sexual orientation and gender identity.”
If by changing the meaning, the Administration intended to protect an additional class of students from segregation by state or school officials, their effort would be laudable. But not only is this not their aim: it is also not necessary.
Rather, this proposed rule is partnered with others that promote “safe and supportive” homes throughout the foster care system, overtly defining as “safe” only those homes where the government’s anti-scientific, extremist approach to gender confusion is adopted.
This is deeply concerning for its potential to violate even an intact family’s right to autonomy. Specifically, the new rule opens the door to unconstitutional government infringement on the deeply rooted, constitutionally protected liberty of parents to direct and control the upbringing, education, and care of their children, which is “perhaps the oldest of the fundamental liberty interests recognized by [the U.S. Supreme] Court.” Troxel v. Granville, 530 US 57 (2000) at 65
At the same time, it would violate a child’s reciprocal right to the care and companionship of their loving parent. Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) at 825
While the rule does not deal directly with parental rights, it endorses both a view of gender fluidity and selective treatment options that prompt government officials to run roughshod over any parent who does not agree with the government’s prescribed position.
Let me be clear: No government agent should keep secrets from parents about the health and wellbeing of the parent’s minor child.
Exceptions rightly exist, of course, for the investigation of a parent accused of physical abuse. But this rare occurrence involves strict procedural and court oversight.
Government policies that lead public school teachers and administrators to regularly keep secrets from parents about their child’s health and well-being, on the other hand, are seriously troubling. Yet, across the country this has been the result of adopting a policy which holds that government actors know better than parents how to treat a child who is uncomfortable with their biological sex.
The Supreme Court’s Parham v. J.R. decision (442 U.S. 584 (1979) at 603-4) is instructive here:
Simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments…. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents’ authority to decide what is best for the child.
The Supreme Court has already weighed in on the sort of policy proposed by the Administration, and they found it constitutionally deficient. Parents, not government agents, are the appropriate people “to make sound judgments concerning many [of a child’s] decisions, including their need for medical care or treatment.”
Ironically, redefining “sex” to include gender, and thus gender confusion, leads to more, not less, discrimination under Title IX.
This is because the proposed policy deprives a certain class of citizens of a fundamental right. While most parents retain the fundamental right to direct the upbringing, education, and care of their children, and while most children enjoy the reciprocal right to their parents’ companionship and guidance, the proposed rule expressly denies these rights to those families in which a child identifies as a gender minority.
In these families, the government would suddenly have the power—even the obligation—to determine what is the right course of treatment for the minor child.
And that “statist notion,” the Parham Court declared, “is repugnant to American [legal] tradition.”
Children and families should be protected from discrimination, even if a child identifies as a gender minority. Parents, not the government, know and value what is best for their child.