The federal constitution requires that school officials submit to the demands of a teenage girl who wants to change her sex to become a boy, says a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
The judges say that Kenosha Unified School District violated federal law and the Constitution because the teenager’s “gender identity” as a “transgender boy” is more important than the popular laws, civic customs and scientific consensus which recognize that girls and boys, men and women, are biologically and socially different even as they are also complementary and legally equal.
The court’s ruling in Whitaker v. Kenosha likely will be sent to the U.S. Supreme Court, which will likely decide in 2018 whether the new idea of “gender identity” will replace society’s distinctions between girls and boys, and between men and women.
Throughout the judges’ 35-page, May 3o decision, the judges fully accepted the claim by the girl’s lawyers that people can change from male to female and back again by changing their “gender identity” and declaring themselves to be “transgender.”
So the three progressive judges also dismissed as “sheer conjecture” the concerns by school officials that the privacy of many teenagers and children would be compromised if they are forced to share bathrooms and shower rooms with opposite-sex teenagers. The judges also confidentially insisted that “Ash,” the teenage girl –who is not an adult — has “well-documented” concerns that her mental health would be damaged if school officials did not validate her claim to be a boy.
The judges’ concern for the teenager’s immediate well-being did not also include any concern about the girl’s decision to irreparably harm her body and her well-being with drugs, hormones, and surgery while trying to live as a member of the opposite sex in a society where very few people want romantic or sexual relationships with transsexuals.
Instead, the judges fully supported the young girl’s high-risk decision by offering several skilled legal arguments about why society should defer to the far-reaching demands described by her lawyers at the Transgender Law Center, headquartered in Oakland, Calif. For example, the judges argued that the law supports the girl’s claim because other judges say it does:
Title IX [of federal law] provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance…. [But] the Sixth Circuit noted that Price Waterhouse established that the prohibition on sex discrimination “encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.
The Title IX laws were written by Congress to reduce discrimination against members of both sexes. But the law can be changed, said the judges, because Congress did not explicitly say the laws do not cover people who want to change their sex:
… the School District argues that this [Title IX] reasoning flies in the face of Title IX, as Congress has not explicitly added transgender status as a protected characteristic to either Title VII or Title IX [anti-discrimination laws], despite having opportunities to do so. … [But in another lawsuit] The Supreme Court has rejected this argument, stating that congressional inaction “lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” … Therefore, Congressional inaction is not determinative.
Wisconsin’s law plainly says that school officials must treat children according to their legal sex. In response, the judges described the state law as really complicated, and different from other states’ laws, so the girl gets the benefit of the just-created doubt:
while it is true that in Wisconsin an individual may only change his or her designated sex on a birth certificate after completing a surgical reassignment … this is not universally the case. For example, as Ash’s counsel pointed out during oral argument, in Minnesota, an individual may amend his or her birth certificate to reflect his or her gender identity without surgical reassignment … Therefore, a student who is born in Minnesota and begins his transition there, obtaining a modified birth certificate as part of the process, could move to Kenosha and be permitted to use the boys’ restroom in one of the School District’s schools even though he retains female anatomy.
The school must comply with the girl’s choice because other schoolkids did not start a political movement to protest the girl’s choice, say the judges:
Ash used the bathroom for nearly six months without incident. The School District has not produced any evidence that any students have ever complained about Ash’s presence in the boys’ restroom.
But numerous polls show the public wants to preserve legal and social distinctions between the two equal and complementary sexes, such as single-sex bathrooms and single-sex sports leagues. So the judges just steal several bases by insisting — but not explaining why or how — that a person’s personal choice of their “gender identity” determines their legal sex much more than the nature of their male or female body. That redefinition of “sex” into “gender” allows the judges to claim that distinctions between boys and girls will be protected if boys who have the gender identity of boys are forced to share bathrooms with the girl who says she has the “gender identity” of a boy, regardless of the plausibility and permanence of the girl’s claim:
Although the School District argues that implementing an inclusive policy will result in the demise of gender‐segregated facilities in schools, the amici note that this has not been the case. In fact, these administrators have found that allowing transgender students to use facilities that align with their gender identity has actually reinforced the concept of separate facilities for boys and girls.
But the judges are also happy to drop the “gender” term and instead use “sex” when it suits their purposes. So they say the schools’ effort to protect the privacy of kids is related to sex, and is therefore in violation of a 1996 Supreme Court decision about sex — not gender. That case was written by progressive Justice Ruth Bader Ginsburg who declared that only “exceedingly persuasive” claims can survive claims of sex discrimination:
the School District argues that since it treats all boys and girls the same, it does not violate the Equal Protection Clause. This is untrue. Rather, the School District treats transgender students like Ash, who fail to conform to the sex‐based stereotypes associated with their assigned sex at birth, differently. These students are disciplined under the School District’s bathroom policy if they choose to use a bathroom that conforms to their gender identity. This places the burden on the School District to demonstrate that its justification for its bathroom policy is not only genuine, but also “exceedingly persuasive” … This burden has not been met here.
What all of this means is that the three judges wanted to write a decision that fully supports the “gender identity” ideology, no matter how much harm it causes to children, teenagers, adults, civic society, democracy, and the law. If the judges had opposed the ideology — which could destroy all single-sex institutions, such as women’s sports leagues or women’s shelters — they would have found an argument to gently reject the girl’s claims, and told her to graduate high school in a few days without having gotten her courtroom victory over the school principal.
If the judges had opposed the gender ideology — whose advocates wish to destroy all single-sex institutions, such as women’s bathrooms, sports leagues or shelters — they would have found an argument to gently reject the girl’s claims, and told her to graduate high school without having gotten her courtroom victory over the school principal.
But the ideology is far more aggressive than a 17-year-old girl. Far example, even though far fewer than one percent of Americans try to live as members of the opposite sex, the gender-identity push has attacked the nation’s long-standing social rules for single-sex bathrooms and shelters for battered women, sports leagues for girls, hiking groups for boys, K-12 curricula and university speech codes, religious freedoms, free speech, the social status of women, parents’ rights in childrearing, practices to help teenagers, women’s expectations of beauty, culture and civic society, scientific research, prison safety, civic ceremonies, school rules, men’s sense of masculinity, law enforcement, and children’s sexual privacy.
Polls and surveys show this transgender ideology has some sympathy from roughly one-quarter of Americans, but former President Obama has admitted twice that his push for “transgender rights” hurt Hillary Clinton’s 2016 race.