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Sen. Kennedy Nails Merrick Garland on Men Competing in Women's Sports

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During the first day of Senate confirmation hearings for Attorney General nominee Merrick Garland, Republican Sen. John Kennedy of Louisiana put Garland on the hot seat.

Kennedy pointedly asked Garland on Monday if he agreed that “allowing biological males to compete in an all-female sport deprives women of the opportunity to participate fully and fairly in sports and is fundamentally unfair to the female athletes.”

The question appeared to knock the wind out of President Joe Biden’s pick to head the Department of Justice. Exhaling loudly, Garland responded, “This is a very difficult societal question that you’re asking me here.”

Kennedy quickly interjected, “I know, but you’re going to be attorney general.”

Garland smiled weakly and replied, “Well, but I may not be the one who has to make policy decisions like that.”

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He then shifted uncomfortably in his seat, stammered, averted his eyes and regurgitated what were plainly rehearsed lines about the need to treat every human being with dignity and respect.

Garland concluded by saying that the question of how Title IX applies in schools in light of the Bostock case “is something that I would have to look at when I have a chance to do that. I have not had the chance to consider these kinds of issues in my career so far, but I agree that this is a difficult question.”

Title IX is a federal civil rights law that prohibits sex discrimination in education programs.

Should men who identify as women be allowed to compete in women's sports?

In May 2020, the U.S. Department of Education’s Office of Civil Rights determined that males have a marked competitive advantage over females when it comes to athletics and that allowing men who identify as women to compete in women’s sports violates Title IX.

The following month, the U.S. Supreme Court issued its decision in Bostock v. Clayton County, ruling that Title VII, the federal law that prohibits sex discrimination in employment, protects employees who are discriminated against because they are transgender. The case was one of the most-watched of the Supreme Court’s 2020 term, and the ruling received wide media coverage when it was handed down.

Just last month, the Office of Civil Rights issued a memorandum stating the Bostock decision does not change its view that allowing men who identify as female to compete in women’s sports violates Title IX.

In the memorandum, the OCR stated that school districts are required by Title IX to provide for athletic teams that “separate participants solely based on their biological sex, male or female, and not based on transgender status.”

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Twelve days later, on Jan. 20, Biden issued an executive order barring schools from denying students access to sports based on their gender identity.

Assuming Garland is being truthful about not having encountered such issues during his career as a judge, that only gets him so far.

His nomination for the position of attorney general was made public on Jan. 6. The Harvard-educated jurist therefore knew for a month and a half that he would undergo a confirmation hearing, and he should have anticipated being questioned by senators about his views on important subjects such as this.

Garland’s remark to Kennedy that he had not yet considered this issue strains credulity, and his punt that he will look into it “when he gets a chance” is a riff on a theme we’ve heard too much lately from another Biden administration official. It is a less-than-satisfying answer from someone who is interviewing to become the chief lawyer of the federal government and the leader of the Department of Justice.

Moreover, it was wrong for Garland to suggest that he shouldn’t have to express his opinion about whether it’s unfair to female athletes to allow men to play on women’s sports teams because he “may not be the one who has to make policy decisions like that.”

The job of the attorney general includes “furnish[ing] advice and opinions, formal and informal, on legal matters to the President and the Cabinet and to the heads of the executive departments and agencies of the government, as provided by law.”

As the principal legal adviser to the president and his cabinet, the attorney general will play a central role in helping to craft the Biden administration’s policies — including whether it will uphold or eviscerate the protections against sex discrimination codified in Title IX.

Garland should have stated unequivocally that permitting males to compete against females is wrong, and that allowing them to do so will extinguish many advances that women have worked so hard to attain.

His refusal to do this speaks volumes and hardly demonstrates the “dignity and respect” toward others that he claims as his guide star.

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Ameer Benno is a constitutional law attorney. He was the Republican candidate for the U.S. House of Representatives in 2018 in New York's Fourth Congressional District, and he frequently appears on national television and radio to give legal and political commentary.
Ameer Benno is a constitutional law attorney. He was the Republican candidate for the U.S. House of Representatives in 2018 in New York's Fourth Congressional District, and he frequently appears on national television and radio to give legal and political commentary.




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