ReasonableMatic
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“We are the federal law,” President Trump insisted at a lunch with state governors on February 21. And he really believes it!
Since his first day in office, Trump and his minions have loudly insisted that the law means what he says it does, despite the Constitution vesting in Congress the power to enact laws and courts the duty interpret them. And yet, he persists.
Nowhere is this legal fantasizing more bizarre than in the context of civil rights, where Trump concocted new theories of gender and race discrimination and commands all of us to treat them as if they are real. Suddenly we are expected to accept that the existence of trans people or the mere acknowledgement of racism is itself discriminatory. It’s bizarre and ahistorical, and it almost certainly won’t work.
Bigotry as policy
On January 20, just hours after being sworn in, Trump signed his first executive order attacking transgender people. The “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” edict announced a brand new interpretation of the Civil Rights Act of 1964 which bars discrimination based on race, color, religion, sex, and national origin.
Essentially, Trump declared that allowing trans women to exist as women amounts to discrimination against cisgender women. He ordered trans women in prison to be forcibly detransitioned and placed in men’s facilities, declared it illegal for trans women to use the ladies’ room, and instructed the attorney general, the secretary of labor, the the Equal Employment Opportunity Commission (EEOC) to “prioritize investigations and litigation to enforce the rights and freedoms identified.”
On February 5, Trump followed up with a second order — “Keeping Men Out of Women’s Sports” — in which he decreed that allowing trans athletes of any age to participate “denies women and girls the equal opportunity to participate and excel in competitive sports” in violation of Title IX. But that is emphatically not the law.
The Supreme Court ruled in Bostock v. Clayton County in 2019 that employment discrimination against trans people is discrimination “on the basis of sex” under Title VII of the Act. In 2021, the Court refused to grant certiorari in the case of Gavin Grimm, after the Fourth Circuit ordered Virginia to let the trans student use the boys bathroom at his school. Since then, the Court has also let a bunch of anti-trans state laws stand, and seems poised to allow states to ban gender affirming care for minors, clearly signaling that the conservative justices will not bar discrimination against trans athletes under Title IX. But that’s a far cry from saying that Title IX requires such discrimination. No court has ever endorsed the Trump administration’s claim that the law mandates the exclusion of trans kids from sports.
And yet Trump’s second executive order instructed the Department of Education to “rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy.” It also ordered the attorney general to pursue Title IX enforcement actions against any sports program that lets trans athletes play.
At the February governors luncheon, Trump singled out Maine Gov. Janet Mills, demanding to know if she intended to accede to his entirely concocted interpretation of Title IX.
“I'm complying with state and federal laws,” she replied evenly.
Trump then insisted that he and the federal law were one and the same — L'état c'est moi! — and spluttered threats and vituperation toward Mills.
https://youtu.be/nE1kGVAySBE
Retribution
The very next day, the government began using federal tax dollars (of which Maine is a net contributor) in an effort to force the state to comply with Trump’s imagined version of Title IX. The administration cut everything from Social Security to aquaculture, although the USDA’s attack on school lunch money was particularly vile, with some $3 million in funds canceled.
“You cannot openly violate federal law against discrimination in education and expect federal funding to continue unabated,” Agriculture Secretary Brooke Rollins ranted in a letter to Mills, warning that “this is only the beginning, though you are free to end it at any time by protecting women and girls in compliance with federal law.”
On April 7, the state sued, alleging that the cuts were arbitrary and capricious. Three days later, a federal judge agreed, ordering the administration to give the state back its funding. In its complaint, Maine noted that while the Trump administration is making aggressive noises about its novel interpretation of discrimination law, it has been noticeably reticent to test this spiffy new theory in court.
Perhaps in response, the Justice Department then sued the Maine Department of Education, alleging that its trans-inclusive sports policy violates Title IX. The only legal authorities the complaint cites are Trump’s executive order and a federal regulationwhich requires schools to let girls try out for non-contact sports teams if no parallel girls team exists, the opposite of the administration’s argument. (The government bizarrely mischaracterizes this regulation as mandating that “if an educational program separates teams by sex, the teams that the program designates as female teams must be completely separated by sex.”)
Notably, the government has not asked for emergency injunctive relief, apparently content to let the matter slowly percolate through the courts before subjecting Trump’s legal theory to a judicial reckoning. Instead, Trump is happily barking out orders, such as one on Monday where he commanded the University of Pennsylvania to un-award a medal won by trans swimmer Lia Thomas in 2022, bar all trans women from athletics, and apologize for the school’s prior wrongthink.
We all know what we mean
As bigoted and filthy as Trump’s anti-trans edicts are, at least states can be pretty clear on how to comply with them. Trump’s anti-DEI pronouncements are equally unmoored from law and precedent, but so vague as to be functionally meaningless.
In a series of executive orders, Trump inveighed against “illegal DEI,” which he claims violates the Civil Rights Act’s ban on racial discrimination.
“Critical and influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation,” he blustered in one order.
In another order entitled “Ending Radical Indoctrination in K-12 Schooling,” the president purported to bar “discriminatory equity ideology” in education and strip federal funds from schools that teach it. The Department of Education then sent a NO WOKE pledge to state educational agencies demanding that they sign it as “a material condition for the continued receipt of federal financial assistance.”
As proof that Title VI of the Civil Rights Act bans the teaching of divisive DEI concepts, the pledge cited Trump’s own executive orders as if they were actual law, as well as Students for Fair Admissions v. Harvard, the 2023 Supreme Court case striking down affirmative action in college admissions. As execrable as the SFFA decision was, it did not make DEI unlawful, and so the blue states rebelled against the attempt to impose an extralegal condition on their receipt of congressionally allocated education funds.
“The letter forced state and local agencies to choose between two untenable options,” wroteWisconsin Attorney General Josh Kaul. “(1) refuse to certify compliance based on the Department’s un-defined viewpoint on what constitutes unlawful diversity, equity, and inclusion programs, curriculum, instruction, and policies, and place federal funding in peril or (2) certify compliance, attempt to identify and eliminate lawful diversity, equity, and inclusion to the detriment of students, and still face liability for failing to fully comply with the Department’s vague and ill-defined order.”
Instead, a coalition of 19 blue states sued the Department of Education last Friday seeking a declaration that they are not obligated to sign a pledge or go on a DEI witch hunt to be eligible for federal education funds.
Trump demands states obey law he just announced via tweet
That's not how any of this works.
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