TRANSGENDER LOGIC PUZZLES:  Last week, I linked to the very brief Title IX comment that Pete Kirsanow and I submitted to the U.S. Department of Education.  It outlines why we think the Biden Administration does not have the power to require federally funded schools to assign anatomical boys who identify as girls to the girls’ bathrooms, locker rooms and showers (and vice versa).  We believe schools have discretion here.

Since then, I’ve been asked what would happen (under the analysis in our comment) if Congress were to amend Title IX to prohibit discrimination on the basis of both sex and gender identity, but make no other change to the law.

Answer:  It would make it illegal to treat anatomical boys who identify as girls differently from other boys.  Similarly, it would make it illegal to treat anatomical girls who identify as boys differently from other girls.  For bathrooms, locker rooms, and showers, that means it would be illegal to separate transgender students from students with the same sex who are not transgender.  That’s the opposite of what transgender activists want.

Title IX has a section that specifically empowers schools to maintain “separate living facilities for the different sexes.”  That’s what authorizes schools to have separate bathrooms by sex in the first place.  Congress could amend that section to include gender identity as well.  That would allow schools the discretion to separate students of the same sex (but different genders) if that’s what it wants to do.  But it still wouldn’t give the activists what they want–a requirement that schools assign transgender students to the facilities they identify with.

If Congress wants to require schools to separate students by gender rather than sex for bathrooms, locker rooms and showers, it should have to repeal the part of Title IX that specifically empowers schools, in their discretion, to maintain “separate living facilities for the different sexes.”

Or at least that how our analysis comes out.

THE STORY OF THE FALSE ACCUSATIONS AT BYU IS WORSE THAN I REALIZED:  Jesse Singal:  “How the Media Fell for A Racism Sham.”  Bill Otis:  “A Spasm of Deceit Leads to a Spasm of Cowardice.”

HOT! HOT! HOT!:  Here’s the legal argument for why the new Biden transgender bathroom, locker room, shower proposals (and the Obama Era guidance on the same issue) are contrary to law.  This 4-page comment was submitted by Pete Kirsanow and me to the U.S. Department of Education in response to its Title IX proposals.  It’s just a sketch of the argument … almost more a logic puzzle than anything else.  If the issue ever reaches litigation, it will need to be fleshed out.  But I think it’s definitely worth a read.  (Note that Justice Gorsuch’s quirky opinion in the the Bostock case helps rather than hurts our analysis.)

WE’RE MAKING PROGRESS:  “Google, IBM Quietly Backtrack on Race-Conscious Fellowships in Wake of Free Beacon Reports.”

SUE ‘EM … ALAS, IT’S THE ONLY WAY:  “Lowery v. Texas A&M University System:  The Beginning of the End of DEI Discrimination?“

REAL CLEAR INVESTIGATIONS:  “How Blatant Anti-White Racism Won Acceptance in Elite America.”

JEFF JACOBY ON BIDEN’S STUDENT LOAN FORGIVENESS:  Congress should sue.

SWEDISH ELECTION:  “Crime Surge Put Sweden’s Social Democrats on Brink of Defeat.”  (That’s with 94% of the votes counted.)

DAVID DEAVEL:  An American doesn’t have to be a lover of “things royal” to feel sadness at the death of Britain’s long-time monarch.

AARON SIBARIUM:  Microsoft Fellowship Caps the Number of White and Asian Applicants.

BILL OTIS: Our under-incarceration problem.

MICHAEL CRESWELL: On the racial achievement gap.

WEIRD NEWS:  Rare snake found apparently choked to death on centipede.

BANK OF AMERICA MIGHT BE GETTING ITSELF INTO A LAWSUIT:  “Bank of America Announces Zero Down Payment, Zero Closing Cost Mortgages for Black and Hispanic First-Time Buyers.”  This may be another job for the American Civil Rights Project. (Update:  They apparently changed the headline.  The original headline was as shown.)

DAN MORENOFF OF THE AMERICAN CIVIL RIGHTS PROJECT:  “Breaking Up the ESG Investing Giants.”

MAYBE NOT BORN THAT WAY AFTER ALL:  Remember when the orthodox thinking was that a person is simply born gay and there is nothing to be done about it?  Maybe so … or maybe so for some people … but it is interesting that 15.9% of Generation Z students (born 1997-2002) identified at LGBT as of 2020.  Meanwhile Baby Boomers were at 2% and Generation Xers were at 3.8%

GET WOKE, GET SUED:  The American Civil Rights Project is suing Starbucks for its brazen violation of anti-discrimination laws.  See our press release.  And, yes, there are more lawsuits coming.  We’ll keep suing until the rule of law is respected.

AARON SIBARIUM:  “No Whites Allowed:  Pfizer Fellowship Flagrantly Violates the Law, Lawyers Say.”

YOU HAVE TO WATCH THESE CALIFORNIA LEGISLATORS LIKE A HAWK:  Fortunately, that’s what Californians For Equal Rights Foundation has been doing.  In 2020, we defeated the legislature’s effort to repeal the part of the state constitution put there in 1996 by Proposition 209 (“The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”) But in 2020, the legislature took up a bill entitled “California’s Upward Mobility Act of 2022,” which would have created quotas based on race and ethnicity for appointments to state boards and commissions.  That’s an obvious violation of Proposition 209.  It took a while, but we (in cooperation with the Pacific Legal Foundation) got them to back down.  That’s a victory!

Now we just need 10,000 more such victories around the country.  I’m working on it …

I LOVE A HERO STORY:  When Lori Keeney had a seizure in the swimming pool, her quick-thinking, 10-year-old son Gavin pulled her to safety.  Purr.

UGH:  It turns out homicide is the top cause of death among pregnant women. I didn’t know that when I submitted my dissent to the Commission on Civil Rights’ 2021 report on maternal mortality.  If I had, I surely would have pointed it out to my progressive colleagues.  I’m not sure it would have changed their view that the top fear for African American mothers should be racist doctors and nurses.  But it would have given them something to chew on.

Many progressives don’t want to think about how crime affects African American victims.  They regard it as racist to even bring the issue up.  So far, the progressives on the Commission have been unwilling to conduct a study of the crime increase and its disproportionate effect on minorities.  I could say they don’t give a damn, but that may not be precisely true.  It may simply be that they care more about preventing bad publicity for Democrats.

I’M AFRAID THAT’S PEANUTS COMPARED TO THE COST OF REARING 10 CHILDREN:  Russia offers a hero’s medal plus $16,000 to women who have 10 children.

WE LIVE IN CRAZY TIMES:  Major law firms counsel their clients to keep disparate impact liability in mind when they make decisions about how to handle layoffs (as they should given that the law … or maybe I should say “the law” … requires it).  Meanwhile Minneapolis Schools adopt a policy of outright race discrimination against white teachers in layoffs.

(As always, if you haven’t done so already,  I urge you to read Title VII Disparate Impact Liability Makes Everything Presumptively Illegal, which is a primer on this pernicious policy.)

THE AMERICAN CIVIL RIGHTS PROJECT IS STARTING TO RACK UP SOME SUCCESSES:  It represents shareholders who sue corporations that engage in thoroughly “woke” but plainly illegal activities.

Here’s this week’s success:  Each summer, for the past two years, Lowe’s has been conducting an annual small business promotion called “Making It … with Lowe’s.”  Small businesses are invited to submit their new products to an in-house “shark-tank” panel.  The winner is rewarded with nationwide publicity, inclusion among Lowe’s vendors, and sales through Lowe’s 1,728 locations as well as over its website.  The catch:  In order to participate, the business owner had to be a racial minority, female, LGBT, disabled, etc.  After receiving formal notice from the ACR Project that this arrangement in a violation of Section 1981 (as to race) and an assortment of other laws, Lowe’s initially sounded like it was going to be uncooperative.  But when the project was renewed for the summer 2022 under a new name, it was open to small businesses generally.  Good.

Next up for the ACR Project:  Starbucks and then McDonald’s, JPMorgan Chase, and Dropbox.  And plenty more are in the works.  It warms my heart to have an organization to push back against corporate wokeness.

The ACR Project also has a few much bigger anti-woke projects in the works.  I’ll tell you about those as they materialize.

(Full disclosure:  I am chairman of the board, but the bulk of the work is being done by our sole employee Dan Morenoff.)

NEW BOOK:  Science in an Age of Unreason.