The transgender bathroom case arrives at the Supreme Court

posted at 8:01 am on January 11, 2017 by Jazz Shaw

Back in October I wrote about the announcement that the Supreme Court would be hearing the case of G.G. v. Gloucester County School Board. This is the long awaited “transgender bathroom law” challenge to the Obama administration’s reinterpretation of Title IX law which sought to morph the definition of “sex” to include the SJW concept of gender identity. At the time I expressed concern over both how a split court might rule on the science behind the question as well as the possibility that they would dodge the fundamental questions entirely and choose to narrowly rule on the legal mechanics.

As SCOTUSblog reported in December, the court’s schedule for this case has been pushed back a bit. They extended the deadline for the final briefs from the student’s legal team until February 23rd. This means that oral arguments should begin during either the sitting which begins on March 20 or even the following session which kicks off on April 17th. Whether or not we might have nine justices by then is still unknown.

Outside groups are submitting opinions for the court to consider already, however. There are two of them I’d like to address this morning which cover both of the concerns I expressed above. The first comes from Liberty Council, who filed an amicus brief (read the entire thing here) with the court and they’re taking the scientific approach. In their press release they lay out the case against federal policy based entirely on unsupported “science” when attempting to redefine sex in human beings. (Emphasis added)

Liberty Counsel states in the brief: “Advancements in biotechnology have demonstrated what society has intuitively understood for millennia, i.e., that human beings are conceived as either male or female and there is no scientific basis for a claim that individuals have a separate “gender identity” that can differ from their biological sex. The Department of Justice Civil Rights Division and the Department of Education Office of Civil Rights ignored this inconvenient truth when they announced that the term “sex” in Title IX now includes “gender identity” so that sex-separate private facilities must be turned into unisex social laboratories. This Court should reject the Departments’ attempt to infuse Title IX with a sociopolitical agenda wholly lacking in evidentiary foundation.”…

The Supreme Court previously blocked the decision by the Fourth Circuit Court of Appeals that the federal law known as Title IX should be interpreted to include “gender identity” and that a girl who “identifies” as a boy can use the boy’s restroom. The federal court of appeals ruling lacks legal authority and clearly goes against the clear meaning of “sex” when that law was adopted decades ago.

The second comes from the Family Research Council (FRC) and they’re taking the more limited approach of challenging the standing of the White House to implement this sort of change without input from the legislature, as well as bringing up the states’ rights issue.

This case is more broadly about whether a local school board is free to determine that students must use the shower, locker room or bathroom of their biological sex, and whether sex can be reinterpreted to include gender identity. The Obama administration has been hinting at the revocation of federal funds if localities such as Gloucester County take this course of action. While President-elect Trump could direct that such action must cease in his administration, attempts by legal activists to shoehorn “gender identity” into definitions of “sex” will persist, and FRC and NCVC hope the Court sees the sense in ruling in a way that leaves localities free from federal government mandates on this issue.

Here are the three primary points that the FRC is driving home, specifically addressing mandates coming from the Department of Education (DOE).

(1) Education policy should be decided at the local level
(2) The DOE letter and appellate court ruling threaten the liberty of all students by invading their privacy
(3) The DOE letter makes law when that should be left to the legislature

Personally, I would find a court ruling based on the FRC analysis to be disappointing, but it would at least serve to cut off the idea of the White House being able to issue such sweeping mandates without the consent of Congress. Far better would be a bold choice for the justices to answer the question of whether or not activists can simply ignore fundamental biology and science in general and influence public policy based on such assertions.

Before closing, there’s one other subject which always generates feedback whenever we discuss this topic and I’d like to address it here. There are a small percentage of babies born every day who have aberrations in their chromosomal structure and are commonly referred to as “intersex.” This is a very real condition and obviously society has a duty to accommodate these individuals. That does not, however, mean that the vast majority of people who are born with clearly defined XX or XY chromosomal pairs can suddenly invent a reinterpretation of sex as understood in biology. There is no new third, fourth or fifth gender on the landscape because of how someone feels. This is a question of science, not social justice, and the court should demonstrate the bravery required to say as much.

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