A federal judge in Washington State has declared that all civic groups nationwide must accept people of both sexes into their single-sex spaces and activities, or else be stigmatized and sued by the federal government.
In legal jargon, Judge Marsha Pechman declared in a lawsuit against the Pentagon’s “transgender” policy that the federal government must use its powers to champion people who want to live as members of the sex, either inside the military or outside, just as it must use federal powers to suppress racism:
Today, the Court concludes that transgender people constitute a suspect class. Transgender people have long been forced to live in silence, or to come out and face the threat of overwhelming discrimination. Therefore, the Court grants summary judgment in Plaintiffs’ and Washington’s favor as to the applicable level of scrutiny. The Ban specifically targets one of the most vulnerable groups in our society, and must satisfy strict scrutiny if it is to survive.
In this context, the term “strict scrutiny” means that people who say they are transgender must be treated as members of the opposite sex by all federal or state agencies, universities, schools and civic groups that accept federal dollars, except in rare circumstances. Judges would approve exceptions in rare circumstances that are absolutely necessary and also narrowly tailored to achieve an important goal.
In practice, the judge is telling all civic groups that they will lose nearly all lawsuits if women try to exclude men from showers and bathrooms, athletic competitions, victims’ shelters, girls’ schools, civic competitions, or any single-sex civic group or practice.
The judge’s decision, if accepted by the Ninth Circuit Court of Appeals and by Supreme Court in 2020, would order the government to suppress and stigmatize any public recognition of any biological distinctions between the two different, equal and complementary sexes in a heterosexual society of women, men and children.
The judge is a feminist who would likely object to men who demand that women stay silent when their sexual privacy is violated and would object to the elimination of women’s athletics. But many feminists have embraced the transgender ideology because it blurs the civic distinctions between the two equal, different and complementary sexes. That blurring is sought by feminists who wish to compete for status and income against men in the workplace.
The transgender ideology says a person’s sex is determined only his or her feelings of “gender identity,” not by their biology. The ideology says the government agencies, such as the Pentagon, must force Americans to accept the wishes of men who deem themselves to be women and of the women who declare themselves to be men, even if those men and women decline any opposite-sex clothing or hormones, or cosmetic surgery.
Conservatives point out that men and women, teenage boys and teenage girls are very different, and prosper in a society which recognizes and accepts their equal, complementary and different priorities and capabilities.
Feminists say that pro-transgender policies will erase the concept of women — and of women’s rights — because men will be women.
“The Court also rules that, because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class.”
This is a legal gem from tonight’s ruling. The court ruled that transgender people are a protected class.
— Lambda Legal (@LambdaLegal) April 14, 2018
The judge’s legal decision was made April 13 in a lawsuit against the Pentagon’s transgender policies, which excludes people from military service if they want to be treated as members of the other sex. The Pentagon policies reject the vague guidelines pushed by transgender activists about who should be classified as male or female, and instead reaffirmed the normal biology-based distinction between male and female as the fairest way to describe people’s sex:
The concept of gender transition is so nebulous, however, that drawing any line — except perhaps at a full sex reassignment surgery — would be arbitrary, not to mention at odds with current medical practice, which allows for a wide range of individualized treatment. In any event, [national] rates for genital surgery are exceedingly low — 2% of [female] transgender men and 10% of [male] transgender women. Only up to 25% of surveyed transgender persons report having had some form of transition-related surgery [such as breast reduction or facial cosmetic surgery]. The RAND study estimated that such rates “are typically only around 20 percent, with the exception of chest surgery among female-to-male transgender individuals” …
Low rates of full sex reassignment surgery and the otherwise wide variation of transition-related treatment, with all the challenges that entails for privacy, fairness, and safety, weigh in favor of maintaining a bright line based on biological sex — not gender identity … After all, a person’s biological sex is generally ascertainable through objective means. Moreover, this approach will ensure that biologically-based standards will be applied uniformly to all Service members of the same biological sex. Standards that are clear, coherent, objective, consistent, predictable, and uniformly applied enhance good order, discipline, steady leadership, and unit cohesion, which in turn, ensure military effectiveness and lethality.
Pechman’s 33-page announcement does not include any mention of the Pentagon’s “bright line” phrase, which was embraced by the Pentagon when President Donald Trump ordered the military to end the pro-transgender policies pushed by former President Barack Obama. The judge suggested that biological sex is meaningless by putting quote marks around the term:
Requiring transgender people to serve in their “biological sex” does not constitute “open” service in any meaningful way, and cannot reasonably be considered an “exception” to the Ban.
But the judge seems to embrace the transgender ideology, and uses the “gender identity” term without quote marks, despite the inability of biologists to identify and measure a “gender identity’:
The term ‘transgender’ is used to describe someone who experiences any significant degree of misalignment between their gender identity and their assigned sex at birth … Experts agree that gender identity has a “biological component,” and there is a “medical consensus that gender identity is deep-seated, set early in life, and impervious to external influences.”
The judge also argues that her government-enforced redesign of the nation’s civic culture rests upon a claim that is only “widely understood,” but not actually confirmed by science or recognized by voters’ common sense:
The Court notes that the [Pentagon’s] Implementation Plan uses the term “biological sex,” apparently to refer to the sex one is assigned at birth. This is somewhat misleading, as the record indicates that gender identity—“a person’s internalized, inherent sense of who they are as a particular gender (i.e., male or female)”—is also widely understood to have a “biological component.”
These claims ignore the scientific evidence that the vast majority of children who claim an opposite-sex feeling of “gender identity” do drop that claim after puberty. Many adults also drop that claim after trying to live as members of the opposite sex, sharply weakening the claims that “transgender” people comprise a confirmable and permanent group.
Very few Americans claim to be transgender, but that rarity means they deserve maximum protection, says the judge:
While the exact number is unknown, transgender people make up less than 1 percent of the nation’s adult population … There are no openly transgender members of the United States Congress or the federal judiciary, and only one out of more than 7,000 state legislators is openly transgender.
People trying to live as members of the other sex deserve protection because of the harm they suffer, the judge said, even though she also disregarded the harm that would be caused by official suppression of sexual differences, such as the loss of sexual privacy in bathrooms or the health damage caused by “transgender” medical treatment of children. For example, training manual prepared by the Pentagon in 2016 said naked female soldiers must give “dignity and respect” to men who join them in their shared shower rooms.
According to the judge, the harms suffered by the Pentagon’s exclusion of people who want to change sex include:
For example, Karnoski has explained that the Ban has caused him “great distress, discomfort, and pain.” (Dkt. No. 130 at ¶ 21.) Schmid has explained that the Ban’s “abrupt change in policy and implicit commentary on [her] value to the military and competency to serve has caused [her] to feel tremendous anguish,” and that since it was announced, she has lost sleep and suffered “an immense amount of anxiety.” (Dkt. No. 131 at ¶¶ 23-24, 26.) Muller has explained that the Ban was “devastating” and “wounded [her] more than any combat injury could.” (Dkt. No. 133 at ¶¶ 30-31.) Doe has explained that the Ban precludes her from expressing her authentic gender identity, and that as a result, she has not come out.
The Pentagon and the public strongly support the recognition and celebration of heterosexual differences, but that popular support is portrayed as “systematic oppression” by the judge, who wrote:
The Court also rules that, because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class … This means that before [Pentagon] Defendants can implement the Ban, they must show that it was sincerely motivated by compelling interests, rather than by prejudice or stereotype, and that it is narrowly tailored to achieve those interests…
The judge also suggested that recognition of sexual differences in a two-sex society of male and female humans is similar to racism, arguing:
Indeed, the Court notes that Defendants’ claimed justifications for the Ban—to promote “military lethality and readiness” and avoid “disrupt[ing] unit cohesion, or tax[ing] military resources”— are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members.
In her one concession to the Pentagon, the judge said she was willing to consider if the Pentagon’s unique circumstances, expertise, and standing could justify the exclusion of people who want to live as members of the other sex:
Having carefully considered the [Pentagon] Implementation Plan—including the content of the DoD’s “Report and Recommendations on Military Service by Transgender Persons”—the Court concludes that whether the Ban is entitled to deference raises an unresolved question of fact … On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.
This court case is one of four being applied against the Pentagon by pro-transgender activists. Each win provides more courtroom evidence and pressure on other judges to endorse the same gender-identity-trumps-sex claim. However, the decision will be made by the Supreme Court, perhaps in 2020, unless Congress uses its constitutional power to restrict the legal and political authority of the pro-transgender judges.
The transgender ideology is deeply unpopular, especially among women and parents. In 2017, Obama told NPR that his promotion of the transgender ideology made it easier for Donald Trump to win the presidency.
Multiple polls show that most Americans wish to help and comfort people who think they are a member of the opposite sex, even as they also reject the transgender ideology’s claim that a person’s legal sex is determined by their feeling of “gender identity,” not by biology.
Despite the huge expense, conflict, and damage to young people, the gender ideology is rapidly gaining power, aided by huge donations from wealthy individuals and medical companies. In Ohio, for example, in February, a judge forced parents of a teenage girl to give up custody so she can begin a lifetime of drug treatments and surgery that will allow her to appear as a male.
The progressive push to bend Americans’ attitudes and their male-and-female civic society around the idea of “gender identity” has already attacked and cracked many of the popular social rules which help Americans manage the cooperation and competition among and between complementary, different and equal men and women.
These pro-gender claims have an impact on different-sex bathrooms, shelters for battered women, sports leagues for girls, hiking groups for boys, K-12 curricula, university speech codes, religious freedoms, free speech, the social status of women, parents’ rights in childrearing, practices to help teenagers, health outcomes, 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.