Missouri AG’s Title IX lawsuit isn’t really about sex and gender. It’s about democracy | Opinion

David Mastio
·4 min read
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Missouri Attorney General Andrew Bailey is suing the Biden administration’s Department of Education for its new Title IX regulations. The move is one part election-year grandstanding — Republicans wish you cared as much about transgender issues as you do about abortion. And it is one part genuine concern about young women being exposed to transgender females with the physical characteristics of a male — like a penis — in their intimate spaces such as showers where complex postmodern ideas about gender collide headlong into the prehistoric realities of biological sex.

But it really is not about any of that at all. It is about democracy and why millions of Donald Trump voters feel disenfranchised and have given up on democracy to worship at the feet of a wannabe strongman who promises to fix it. In the eyes of many a Trump voter, his plan to overthrow the system — to “drain the swamp,” in his terms — is a plan to restore democracy to its rightful place. It is elites in Washington who killed democracy.

It all starts in 1972. That year, Congress debated and passed the grandly named Education Amendments of 1972. In that law was Title IX, legislation that mandated boys and girls, young men and young women have equal access to education and sports while allowing some things to remain separate, such as bathrooms and swimming teams.

In 1972, the men and women who were elected to congress who passed that law and Richard Nixon who signed it all thought they knew what men and women, sex and sexes meant. Dictionaries and lawyers agreed. So did the bureaucrats who turned the law into regulations.

  • Then came an election and the Ford administration and everyone still agreed.

  • Then came an election and the Carter administration and everyone still agreed.

  • Then came an election and the Reagan administration and everyone still agreed.

  • Then came an election and the Bush administration and everyone still agreed.

  • Then came an election and the Clinton administration and everyone still agreed.

  • Then came an election and the W. administration and everyone still agreed.

Oh, there were fights over how exactly equality should be measured and all the little nuances, but Democrats and Republicans alike agreed on what men and women, sex and sexes meant.

Then came the Obama administration and suddenly the law that everybody agreed on became a partisan issue where Democrats said it protected people who were born one sex but felt like they were the other. All of a sudden, people bathed in testosterone at puberty could crush young women on the women’s swim team and people with penises were allowed in the girls’ locker room.

We never voted on it. Congress never voted on it. Democracy had nothing to do with it. The “guidance” document produced by the Obama administration had all the authority of tissue paper and so the Trump people just threw it out.

This time the Biden administration has revived the Obama rules with more teeth, going through the longer administrative process to create a regulation that we now have in final form, over which Missouri’s attorney general and a gaggle of allies are suing.

Congress never changed the law, but people with fancy degrees in law and medicine and philosophy and women’s studies worked together to change the meaning of words and viola — no Congress needed to turn rules that everyone agreed on for generations on their heads.

You can agree or disagree with transgender rights, but you don’t get a say. Your representatives in Congress don’t get a say. It is all in the hands of bureaucrats and lawyers. Sooner or later, nine lords and ladies in black robes will decide for us whether Congress, in 1972, without knowing it, allowed people with penises into every women’s room in the country.

Of course, people who disagree feel like their democratic rights have been taken away. It isn’t the first time. At the same time as Title IX, the Supreme Court imposed abortion on demand in a divided nation, in a decision that even abortion proponents agreed was a legal and logical mess. The decision roiled national politics for generations.

More recently, state after state amended their constitutions to outlaw gay marriage in democratic votes. The Supreme Court stepped in with its Obergefell decision in 2015 and swept that away. Why? A constitutional amendment passed in 1866 after the Civil War and ratified by the people’s representatives in 1868 to enshrine the rights of former slaves, whoopsie, sorta accidentally allowed two men to get married.

That’s a joke. More importantly, it is profoundly undemocratic. I have been in favor of gay marriage since I first wrote about it in the 1990s and it still grinds my gears.

If you are worried about Trump and the threat he poses to our democracy, you should spend a little time thinking about whether we even have one left for the orange felon to trample. For many Americans, we clearly don’t.

That’s why I hope Bailey wins his lawsuit.

David Mastio, a former editor and columnist for USA Today, is a regional editor for The Center Square and a regular Star Opinion correspondent. Follow him on X: @DavidMastio or email him at dmastio1@yahoo.com