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Notes -
Is Nullification on the Horizon?
https://gov.texas.gov/news/post/governor-abbott-condemns-president-bidens-illegal-rewrite-of-title-ix
Recently the Biden admin rewrote some regulations to encode gender identity in title IX. While this is stupid, it's not something that in itself seems likely to be a productive motte top level post. Ken Paxton sued the white house over it, but this is just the default assumption about federal administrative rules on culture war topics. No, what I'm getting at is the letter from Greg Abbott:
https://gov.texas.gov/uploads/files/press/O-BidenJoseph1.pdf
I guess telling the federal government to kick rocks back in January and getting away with it set a precedent- and, obviously, Joe Biden is not going to send the troops in to escort male athletes into the high school girl's locker room in an election year.
This obviously raises the question- are we on the cusp of an era where big state governors feel free to resist the federal government? Obviously, being combative with the Biden admin is a political winner for Greg Abbott. It's unclear what he'll use as a replacement for it in the likely event that Trump sits there next year; I don't think he thinks he can get away with bullying New or old Mexico but the strongman image requires something. And, of course, are Ron Desantis and Gavin Newsom and Kathy Hochul watching closely and learning? Will they resist Trump policies as brazenly(no, blue states have not denied federal forces the ability to operate, their examples of arguable nullification are more noncooperation than open defiance and resistance) as Abbott does Biden's, given that he's emboldened by a base which may not be pro-secession but is absolutely confident Texas would be fine if it did happen?
That’s not a nullification. I’d say the correct remedy for opposing a law is challenging it in court, and Abbott’s doing that. But since this isn’t a law passed by Congress, it’s hard to fault him for instructing his administration on how to implement their administrative change.
Now, there’s a little problem. The USED already implements other Title IX athletics rules. Seeing as those aren’t being challenged, I assume Congress explicitly delegated the power at some point. Either that, or it was assumed through the ever-popular federal funding mechanism.
So what makes this different? If it were an Executive Order, I’d understand the case for a Constitutional violation. But this is a “Notice of Proposed Rulemaking.” See here. It sure sounds like business as usual. If so, the federal government has its obvious recourse: cut federal funding. No Constitutional wrangling necessary.
That’d probably be a big win for Texas Republicans. The rule is being spun as “destroying women’s sports” already. Actually reducing any federal funds? Free leverage for Abbott. As much as I resent the guy, he’s set up a decent gambit. Hard to blame him, when Biden’s agencies are being such partisan hardliners—
Oh.
Well, no one was going to look at the actual rule, anyway. And if they did, they’d surely see that it’s a trap; no restriction could ever survive the captured, liberal media blitz. And if it did, the deep state would bury it. And if they didn’t, those partisan judges would have to legislate from the bench to stop it. And if they didn’t, well, Biden would obviously send the 101st Airborne to escort a minimally-sympathetic trans woman into your daughter’s locker room. Or worse, do it himself. And you don’t want Sleepy Joe near your daughter, do you?
Far better to make political hay now, before all that unpleasantness can get started.
I certainly wasn't going to, because I assumed this is what it would look like, and it appears I was correct. Mandatory gender identity affirmation for elementary kids. Denial of gender identity affirmation technically possible at older ages, provided that one class of Blue partisans wants to deny it, and a second class of Blue partisans seconds their motion.
Given that it's a federal rule and is going to be immediately complied with in all Blue areas, how often do you expect those Blue areas to conclude that "sex-related criteria that limit participation of some transgender students" will actually be implemented, much less approved of by federal authorities?
Why do you think this is a reasonable rule? Why do you think using it to coordinate Red Tribe defiance is a bad idea?
That’s fair. I shouldn’t have gotten worked up with that last chunk, because I understand how the even the narrow rule serves as an attack. Blue locations will adopt it as soon as someone makes a stink about existing policy, a heckler’s veto binding any school or league.
There’s a counterfactual world where this is a reasonable rule. Up until high school, sports are glorified team-building exercises. Who cares when the little monster who hit puberty six months before his team can outrun any of them? Who cares if a kid wants to join the other team and hang out with her friends? If you set up two middle-school leagues, with absolutely zero enforcement of sex segregation, I guarantee they’d sort into boys’ and girls’ teams. The categories were made for man.
I know we don’t live in that world. Some combination of ideologues, tiger parents, and bad actors will push any boundary you set. Why give an inch when they’ll take a mile?
That’s exactly what frustrates me. In case it wasn’t obvious, I don’t give a damn about children’s’ sports. Pretending that they’re a Constitutional crisis, a basic human dignity, or the last gasp of traditional values? That’s absurd. And yes, I apply that judgment to whatever progressive fringe is crowing about this victory. Great job, guys, you’ve ensured that 1% of your school district can get bullied even harder.
Imagine this situation in a vacuum. If your only goal was to give trans people more opportunities for sports, what kind of compromise would you propose? I think it’d look a lot like this one. Expand the options where stakes are low. Acknowledge that they can’t be expanded everywhere without sacrificing other values.
Obviously, this isn’t a vacuum, and the people who wrote this rule care about lots of other issues. They have every reason to rally around this particular opportunity for point-scoring. I’m not going to pretend otherwise. But they’re doing a better job of converging on the vacuum solution.
I dunno, man. There's still the question of the government imposing philosophical (if not quasi-religious) beliefs on people. If you want to have a rule that says "sports should be co-ed" you can have that, but saying "it's ok for you to have sports sex-segregated, but barring someone of the opposite sex is an act of discrimination, if they have a 'gender-identity' corresponding to that category", is an imposition of belief.
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