Lower courts, including the 4th U.S. Circuit Court of Appeals, have been “writing” laws to allow students to use bathrooms and showers according to their “gender “identity” rather than “biological sex,” contends a brief submitted to the U.S. Supreme Court.
The case was brought by a girl who identifies as a boy, Gavin Grimm, against the Gloucester County School Board in Virginia.
The 4th Circuit ruled the school district’s policies barring students from using bathrooms and locker rooms that conflict with their “biological gender” and denying students transcripts that correspond to their gender identity are unconstitutional. The court said the the regulations violate Title IX of the Education Amendments of 1972.
The friend-of-the-court brief is on behalf of Public Advocate of the United States, Eagle Forum, Eagle Forum Foundation, Recover America Now, Constitutional Rights Foundation, One Nation Under God Foundation, Conservative Legal Defense and Education Fund, I Belong Amen Ministries, Center for Morality and Restoring Liberty Action Committee.
The brief states the girl “claimed that her high school violated Title IX by not allowing her to use the boys’ bathroom because she ‘identifies’ as a boy.”
The 4th Circuit issued its decision two months after the Supreme Court in a landmark ruling said Title VII of the Civil Rights Act of 1964 bans employment discrimination based on gender identity and sexual orientation.
The filing argues that in Title IX, “sex” “clearly referred to physiological distinctions between males and females and that the law itself allows “separate … facilities for the different sexes.” The brief argues Grimm didn’t challenge the constitutionality of the law, and she never “established that biological females (who were identified as male) were similarly situated to (cisgender) biological males, so as to trigger the Equal Protection Clause.”
And the lower court “revealed its bias and favoritism for plaintiff-respondent Grimm and hostility to the school board and all those who defended its decisions to accommodate Grimm in other ways than were demanded. The court below immediately adopted the terminology of referring to biological female Grimm with male pronounces, indicating its pre-supposition that a person can change sexes,” the filing states.
“It referred to biolgoi8cal sex as ‘assigned sex’ as if it existed only arbitrarily in the mind of a physician,” the filing says. “It also exhibited religious animus, describing a former lesbian who left that lifestyle when she became a Christian by including that among ‘ugly’ comments opposing special rights to Grimm.”
The high court should not allow the 4th Circuit decision to stand, the brief contends, because “prior decisions in that area are not just resolutions of ‘cases’ but rather more akin to a court writing a law – here a law which will require school boards to allow boys into the girls’ showers based on subjective, unchallengeable ‘feelings.'”
Further, the lower court never considered the damage that the ruling might have caused Grimm.
“There now exists a substantial body of medical evidence that cross-sex therapies are dangerous, irreversible, and should never be used for minors,” the filing says.
“It is undisputed that Grimm is a biological female. Grimm never challenged Title IX’s authorization of ‘separation of restrooms – indeed, he seeks to use the male restrooms so separated from female restrooms’ even though granting access to the boys’ room ‘would allow him to use restrooms contrary to the basis for separation.'”
And the filing raises a potentially explosive issue that has yet to be answered.
“If the Fourth Circuit’s decision is allowed to stand, why would the same logic not allow a white person to self-identify as a (trans-racial) black person to claim Equal Protection coverage, leaving Equal Protection jurisprudence in a terrible mess? Then, Equal Protection could be triggered by anyone who chooses to self-identify into a protected class or a quasi-protected class, merely based on subjective ‘feelings.'”
The case should be reviewed “to reverse the lower court’s decision because a school prohibiting a student from using the restroom designated for the opposite biological sex does not violate the Equal Protection Clause or Title IX.”
The filing addresses the issues of transgenderism bluntly.
“Every person is born a male or a female. Genesis 5:2; Matthew 19:4. A girl who identifies as a boy is not a boy who was born into a girl’s body by mistake. Sexual orientation may be a choice, but no one can choose their sex — that was chosen for every person at the moment of conception, not assigned by a doctor at the moment of birth.
“It is binary. It is not arbitrary. These are scientific facts that have been known throughout millennia, worldwide. They are not opinions. A girl who doesn’t like to play with dolls is no less a girl. Not everyone is the same, but we are all created in the ‘image’ and ‘likeness’ of God. Genesis 1:26. Even if the opposite sex behavior is extreme, such a person is probably just going through what has been forever described as ‘a phase.’ Many people had confusion about sex while growing up. Studies of transgender children have shown that anywhere from 65 to 94 percent eventually ceased to identify as transgender. If the ‘orientation’ persists, it may require counseling to affirm that acting on what a person ‘feels’ at any time, particularly during childhood, puberty, and adolescence, gives a person no objective standard by which to lead their lives.”
The brief continues: “The use of dangerous hormone therapy or surgery for minors is nothing short of child abuse and should not be permitted. Certainly the state has no authority to tell parents that their children must accept therapies to change their sex. Find a way to adjust to your being a girl, because you cannot change it — just like you cannot be taller just because you want to be. Moreover, there is a spiritual component to this understanding, and it is revealed in Holy Writ. God chose your sex, and God does not make mistakes. God created you as an individual. Sex is a powerful force in life, and that is no surprise to God, as he created that drive as well. But we live in a fallen world. Even if you were a victim of sexual abuse, that abuse is part of your history, but it does not define you.”
The dispute had been aggravated by Barack Obama’s order that schools accommodate people in sex-segregated facilities according to gender identity. President Trump reversed the order, affecting the case.
Critics said Obama’s order ignored the rights of millions of other students not to be unclothed in the presence of someone of the opposite sex.
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