Will Anyone in Government Resist SCOTUS's Absurd Redefinition of 'Sex'?

On June 15, the Supreme Court issued its Bostock opinion redefining "sex" in discrimination law. Beyond the word's common biological meaning – linked to an innate and unchangeable characteristic – the Court says "sex" can now be used to protect homosexual behaviors and transgender delusions.  By acknowledging "sexual orientation" and "gender identity" as valid concepts (while leaving them essentially undefined), the Court has embraced sexual-radical dogma.

The absurd Bostock opinion will unleash unimaginable chaos unless there is significant push-back.  The disruptions that have followed rampant "gay rights" demands are well known, and will surely multiply.  And the ruling has given new life to transgender demands for their special "rights."

While Bostock specifically addressed employment law, commentators predict that its new definition of "sex" will be applied in any case dealing with discrimination on the basis of "sex."  There are over 100 federal laws that use that terminology.

The power of imagination

In a glaring admission of his belief that the Constitution is a "living" document, Justice Gorsuch's  majority opinion says this of the 1964 Civil Rights Act:  "But the limits of the drafters' imagination supply no reason to ignore the law's demands" (to protect LGBT identities).  The Justice goes on to "imagine" various scenarios to justify his argument.  But in his arrogance, he doesn't realize how limited his own powers of imagination are.

Here's what conservatives imagine will follow from this ruling:  No justice will flow from evolving interpretations of the theoretical terms "sexual orientation" and "gender identity."  For example:  Will an employer be able to fire an employee who is a pedophile or polygamist?  Both identities could be argued to be "sexual orientations."  Will a fitness center be able to reject a biological male swimming instructor who claims to be a woman, wears only swimming trunks at the pool, and exposes his breast implants?  That is a plausible example of "gender identity or expression."

Resist judicial supremacy

In his dissent, Justice Alito underlined that the Court cannot make law.  He wrote, "There is only one word for what the Court has done today:  legislation."  The ruling is therefore unconstitutional, so there is no reason for the Executive branch to enforce it.

It's imperative for federal executive departments and agencies to push back.  Ideally, President Trump would now instruct his executive departments to ignore the ruling.  With forceful executive leadership, federal bureaucrats could help preserve order.  But the President is sorely uninformed on the dangers of the LGBTQ+ agenda and has already signaled his acquiescence to judicial supremacy.

Glimmers of hope in federal Executive Departments

While many states and localities have already passed laws protecting "gender identity," Congress has not.  So federal executive departments would be in the right to ignore Bostock.  The biological reality that people are either male or female should direct their federal rule-making.

Just recently, conservatives were cheering recent rule changes by three federal departments that began to overturn the transgender insanity of the Obama era.  If only this movement would continue:

  • In mid-May, the Department of Education's Office of Civil Rights ruled that allowing boys (who claim to be girls) to compete on girls' athletic teams violates Title IX (the 1972 law banning discrimination in education on the basis of sex).
  • In mid-June, the Department of Health and Human Services explained that its interpretation of "sex discrimination" would be "according the plain meaning of the word 'sex' as male or female and as determined by biology" (not subjective "gender identity").
  • Just last week, the Department of Housing and Urban Development announced it was proposing a new rule barring transgender males from  homeless women's shelters.
  • Attorney General Barr has also pushed back on the transgender issue, though not enough.  Days after the Bostock opinion, he released a statement supporting the new Idaho law barring "transgender" biological males from participating in girls' sports.  (Earlier, the DOJ sided with Connecticut girl athletes, charging the transgender athlete policies in that state were discrimination violating Title IX.)  On June 19, Barr said:

Allowing biological males to compete in all-female sports is fundamentally unfair to female athletes.  Under the Constitution, the Equal Protection Clause allows Idaho to recognize the physiological differences between the biological sexes in athletics.  Because of these differences, the [Idaho] Fairness Act's limiting of certain athletic teams to biological females provides equal protection.  This limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place — namely, the goal of ensuring that biological females have equal athletic opportunities.  Single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.

Unfortunately, A-G Barr addresses only sports.  Why only sports?  If biological reality applies in athletic competition, why does it not apply in all realms: employment, housing, facilities, health care, schools, etc.?  Why must we be forced to recognize biological males as females (or vice versa) in any other setting?  Why should men be allowed in women's restrooms?  Does the Equal Protection Clause (cited by Barr) guarantee biological females' privacy and security in their single-sex facilities?  Must people be forced to use a transgender person's new name and pronouns?  Must taxes and health insurance cover transgender surgeries and lifelong cross-sex hormone treatments? 

The biological reality argument shouldn't apply only in sports.

US Department of Education poised to reinstate radical pro-trans policies?

Unless the President directs otherwise, the Department of Education can now be expected to go into overdrive promoting transgenderism in schools under the shield of Title IX (which outlawed discrimination on the basis of sex in educational institutions).  A generation of children could be forever warped by the lies forced on them.

The Obama-era pro-transgender policies – recently dormant – will be re-issued and fortified.  Trump's Secretary of Education, Betsy DeVos, temporarily put those policies on hold while awaiting clarification from the courts.  She just got her clarification from Bostock

In order to receive federal funds, schools will again be instructed to allow transgender students to use opposite-sex restrooms or locker rooms, participate on opposite-sex sports teams, change their names and official records, be addressed by preferred pronouns, etc. – all matching their delusional "gender identity."

Just before Bostock was issued, a sensible May 2020 ruling by DOE's Office of Civil Rights (OCR) had offered some hope the tide was turning.  In that, the DOE went on record admitting that there is no such thing as a "transgender girl."  Specifically, the OCR sided with female track athletes in Connecticut who argued that they were deprived of opportunities due to boys competing on their teams.  OCR declared that allowing boys on girls' teams was a violation of Title IX.  Will that now be overturned?  Or will A-G Barr work to keep the policy in place?

But throughout the Trump administration, DOE has kept posted the Obama-era "Resources for LGBTQ Students."  The resources explain how to support students' transgender identities.  The DOE links to its 2015 "Title IX Resource Guide" which explains that "sex" includes transgender identities.  It also gives "Examples of Policies and Emerging Practices for Supporting Transgender Students" and recommends documents from SAMSHA (Substance Abuse & Mental Health Services Administration):  "A Practitioner's Resource Guide: Helping Families to Support Their LGBT Children"  and "Ending Conversion Therapy: Supporting and Affirming LGBTQ Youth".  In other words, the DOE's posted guidance only supports these unhealthy identities.

All of these radical pro-transgender school policies will be revived … unless President Trump sees the light.

Amy Contrada works with the pro-family organization MassResistance.  She had close encounters with many transgender activists in Massachusetts.  See some of her writing at AmyContrada.com

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