Originally published at: Biden admin: gay and trans students covered under antidiscrimination law | Boing Boing
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This is indeed wonderful news. It does, however, demonstrate that the bar was set so low the Biden Administration can essentially walk over it. Happy to see them not tripping.
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About time. Doing the right thing on social issues like this is fairly easy for Biden (economic and military issues not so much), but I’ll give his administration credit none-the-less.
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Until this is enshrined in law and can’t be undone by the next hate filled jackwagon that gets elected by right wing lie spewing trash, this is a temporary victory. A good victory but a temporary one.
And please, please, please please tell me that I read things wrong and this becomes law and not temporary policy.
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It already is law. That’s the job of the SCOTUS, to interpret the law. The difference is that this administration cares about obeying the law.
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No. This is a weird quirk of US politics to give the higher courts that much power. Put bluntly with do-nothing legislative powers who if they do anything write unclear laws courts are given a lot of power to interpret these laws and rule by precedent.
Go read your own constitution, the courts do NOT have this power and it is NOT their job.
A good other example is abortion rights, still decided through a very creative reading of historical precedents around privacy by the SCOTUS. There is no black letter law or even a direct interpretation of such a law that regulates abortion rights in the US.
The whole gun rights debate going on for centuries still hinges around the interpretation of a clumsy garden-path sentence possibly about state militias.
It IS the job of congress (or state assemblies!!) to create a clear set of laws that are so well constructed and so obvious in their meaning that the courts have very little leeway in their interpretation. They just don’t.
Yes, and this contradicts what I said how?
SCOTUS, and the courts in general, interpret the law. That’s what I said.
I’m not sure how you got from the courts’ leeway to interpret the law is delimited by the clarity of the legislative branch’s legislation to the courts don’t interpret the law, but I appreciate the assumption that I haven’t read my own nation’s Constitution. 
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To be more precise:
The Legislative Branch creates the laws.
The Executive Branch enacts and enforces the laws, with some discretion where the law is unclear or specifically gives them that discretion.
The Judicial Branch a) determines whether the laws created by the Legislative Branch conflict with the Constitution and resolves those conflicts and b) determines whether the Executive Branch has enforced those laws correctly. In the course of carrying out a) and b), the Judicial Branch necessarily has to interpret and decide the applicable scope, consistency and validity of the law.
ETA: It is best to look at the Judicial Branch as a whole, rather than focusing in solely on the Supreme Court. The Supreme Court is the highest court and has ultimate say on these matters, but in actual practice, it is all of the courts at various levels making these decisions.
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I can not sure how I can make it clearer. A supreme court exists to oversee and check the decisions of lower courts and to make sure interpretations are in line with each other. That is how it works in the rest of the world.
You first claim that it is the job of the SCOTUS to interpret the law in order to protect gay and trans students is wrong. It is the job of congress to write clear and unambiguous laws to do this. SCOTUS should never go further to then to oversee lower courts so they upheld those laws when they are applicable.
That’s not what I said. The commenter to whom I was replying speculated on this becoming law. Title IX already is the law. SCOTUS determined that it covered gay and trans students. I never said it was their job to interpret Title IX the way I want them to; I said it was their job to interpret the law.
The Trump administration ignored that ruling. The Biden administration is obeying that ruling.
Now if you want to argue that SCOTUS overreached its Constitutional authority in Bostock v. Clayton County, that’s your prerogative. But short of Congress repealing or rewriting Title IX, the Bostock ruling is very much the prevailing legal precedent under the Constitutional authority of the Supreme Court.
If your argument is that Congress writes sloppy laws, you’ll get no argument from me. On the contrary.
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In an ideal world, this would be the case, but such a thing is not really possible in the United States due to partisan deadlock. The law in question here, Title IX, is from 1972. It has not been revised since then. It cannot be revised now because to do so would require the support of 60 members of the Senate, and there are 50 members who refuse to make any laws whatsoever.
In more practical terms, it is not possible to write a law that is completely unambiguous because it is not possible to envision every possible situation in which a law may be applied into the distant future. And covering every possible situation one by one would make laws not only unwieldy, but impossible to pass through Congress because everyone would find something to disagree with in them. A bit of ambiguity is baked into laws to make them politically workable, and it is assumed that the courts will eventually work out their rough edges if a situation that falls through the cracks of ambiguity should arise.
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Indeed. Also…
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But that is congress’ job!
Here is the full text of title IX: “No person in the United States shall, based on 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.”
Says nothing specifically about trans or gay rights and many (right wing) interpretations say this does not include rights for gay and trans people. I cannot gainsay them because Is Is Not In The Text! It should be there but it isn’t. It does not mention gender or sexuality or exactly what discrimination or sex mean in this context so anybody claiming this does not protect trans or gay rights is to be honest and to be fair correct. It Does Not.
There is this thing called the fallacy of consequences: X is not true because if X were true it would have consequences I do not like. Don’t claim because you want a law to mean something it therefor does, this US law does not protect gay and trans rights.
And only one of the three powers has the obligation to set this right.
A majority of the Roberts Court disagrees. That said, if you want to argue for strict textualism then again, that’s your prerogative. I disagree for the reasons @Jesse13927 and I mentioned above, but I can understand and respect someone who is.
I don’t and never did. I claimed (correctly) that the Roberts Court decided it means something. That my ethics happen to align with the outcome is immaterial to whether the ruling is the prevailing legal precedent. (I did initially say the ruling was the law; that was imprecise on my part.) That ruling is an interpretation.
I generally appreciate your contributions here, so I don’t believe you’re intentionally straw-manning what I said. But you’re arguing with something other than what I said when replying to the commenter speculating on this becoming law.
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One of SCOTUS’ most important roles is to occasionally step in to say “Hey, you know those rights enshrined in that Constitution y’all ratified and amended? They apply to [politically unpopular group] too even if the people who enshrined those rights into law didn’t think about it at the time.”
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I think we have a massive misunderstanding here. Simple question: What do you think congress is for? Or the President?
Because if you have a supreme court and a President who can interpret any law any way they see fit and that then becomes law why do you need a legislative power? Because that is what I see happening in progressive USA and it scares me shitless!
I expect nothing better from authoritative right-wing US. They like a strongman president who controls the courts and dictates them the laws but do you? Really?
In this particular case a law changed its meaning twice just by the will of one person… You like that?
Stop hollowing out the legislative powers, stop trying to get things through moves that to me look like pure apologetics, much like a newborn christian arguing the sermon on the mount meant Jesus liked rich people.
The problem is Congress, but sidestepping it is not the solution and don’t let Biden get away with it. If you want gay and trans rights protected demand a clear and unambiguous black letter federal law(*) that no court can sidestep and read any which way. Because they will, you know they will, and the current SCOTUS will take any finger it can to reach for the whole hand.
(*Or constitutional! Make it article 1! You know the US constitution contains a process to have it changed, right? Not just amended as an afterthought, changed. Because only that stops future courts from effing with it.)
I think that you are conflating two similar, but very different questions.
“What does Congress exist to do?” And “What should Congress exist to do?”
Ideally, the answer to both questions would be the same (one way or another), but that simply is not the case in the United States…
ETA: And the problem is not Congress itself. The problem is a political party who are perfectly happy to grind the lawmaking process to a halt indefinitely unless they can get their way on everything 100% of the time and who abuse the mechanisms of Congress to do so ad infinitum.
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The legislative branch makes laws.
The judicial branch interprets the meaning and Constitutionality of those laws.
The executive branch administrates the implementation of those laws.
Civics classes and Schoolhouse Rock teach the electorate about the system of checks and balances.
The USA is not a dictatorship or an oligarchy, despite the sustained concerted efforts of many with way more leverage than I’ll ever have.
Curious. The GOP and company lead the pack in scoflaws and judicial activism. The Democrats tend to lag behind. Progressives have relatively little power in the legislative and executive branches due to the inability to defeat Republicans without the rare help of conservative Democrats. They’ve carved out some civil rights victories in the courts thanks mostly to civil rights legislation passed decades ago before the legislature became a dysfunctional mess held hostage by fascists and their enablers. I wholeheartedly agree this is a terrible and unsustainable solution. It’s nonetheless better than no solution so I’ll personally still celebrate when they gain those small victories in the courts, as much as I wish they could be won in Congress and state legislatures. Reality is often disappointing.
I like discrimination based on sexual orientation and gender against students in tax-funded schools less. If you’re asking do I agree with the interpretation, not that my opinion matters legally, but I agree with it. If you’re asking do I wish Congress weren’t held hostage by the GOP and thus able to amend the law to eliminate ambiguity, I do. That would be a way better timeline to live in. There’s a reason my bio lists my location as the Mirror Universe.
Biden wasn’t POTUS when the Court ruled on Bostock, nor does the POTUS directly control the courts, something Biden seems to understand better than Toadstool. As for court packing, if you know a way to get Yertle the Turtle with his bigoted band of partisan hacks and useful Qnuts out of office, I’m all ears.
It ain’t Democrats or progressives who broke the US government.
You know the Right will never let that happen as long as they retain major political power, right? And yeah, it sucks. Couldn’t agree more. I share your frustration.
Would you have the Biden administration refuse to implement the legal precedent set by the Bostock decision like their predecessors did? Because that would be unconstitutional. Which is the only point I was making in my reply to the commenter who speculated about this becoming law.
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