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Supreme Court of the United States

The Demands of Gender Theory

October 17, 2017

By: Jared Dobbs

The march of the sexual revolutionaries continues: they desperately want the judiciary to affirm each and every one of their brave, new demands. But the courts are having a difficult time navigating the terrain of the newest battleground—gender ideology. Last September, a federal district court in Ohio heard oral arguments in Board of Education of the Highland Local School District v. United States Department of Education. In that case, the Highland Local School District sought to respect the privacy of its students by ensuring that biological males and females use private facilities—locker rooms, showers, overnight accommodations, and restrooms—that correspond to their sex.

But taking that commonsense action would have violated the wayward standards of President Obama’s U.S. Department of Education, which had redefined the sex-based nondiscrimination provisions of Title IX to include the very different concept of gender identity. Schools risked losing federal funding if they did not open these facilities to individuals who profess a gender identity that conflicts with their sex—which means authorizing boys to enter the girls’ facilities, and vice versa. The district had little choice but to sue in federal court when federal officials came after them for protecting student privacy. And just how far afield the federal position is was exemplified at oral argument, when the presiding judge had a revealing exchange with attorney Asaf Orr of the National Center for Lesbian Rights:

The Court: In this calculus, where do I place the concerns of other girls who don’t want to be viewed or share a bathroom with someone who, under Mr. Wardlow’s definition, is biologically a boy, a person who has male genitalia? What deference should the Court give to those interests of those students?

Mr. Orr: First, Your Honor, I would not say that Jane has male genitalia. But secondly, school districts have shown that –

The Court: Jane doesn’t have male genitalia?

Mr. Orr: No. As I indicated, gender and sex are much more complex than that. I think it would be inappropriate to label any part of her body as male.

Note that the court’s line of questioning is trying to consider the privacy concerns of other students, like girls in changing facilities who are understandably uncomfortable undressing in front of a member of the opposite sex – or having a member of the opposite sex undress in front of them.

So-called progressives often fancy themselves as the tolerant ones who move society to a higher place. In this public debate, however, it is social conservatives who present a path forward, both for those struggling with gender dysphoria and for students who desire privacy and modesty. They suggest that schools offer individual-user private facilities for students who are experiencing gender-identity issues, or students who simply would like a little more privacy. That would enable other students to continue accessing locker rooms, restrooms, and overnight facilities that, as a matter of law, have always been reserved exclusively to their use, without encountering classmates of the opposite sex. Commonsense solutions like these best address the concerns of all students.

But this approach will not satisfy gender-identity advocates. Orr is saying that the court’s inquiry is not just irrelevant, but meaningless. Jane’s body can’t tell us if Jane is a girl. For gender-identity theorists, a person’s “innermost sense of identity” is the standard by which we determine whether Jane is a boy or girl. And this claim is not a neutral, scientific statement, but a demand that gender ideology must apply to everyone.

If Jane’s body can’t tell us that Jane is a girl, then nobody’s body can tell us definitively if anybody is a girl. Every person’s biological sex is neutered, and we each fill in our blank gender canvas with our own subjective perceptions and desires. Gender-identity ideology asserts the absurd: that the very physiology that enables males and females to fulfill their reproductive role is merely a stereotype of sex, not the definitional characteristic.

But ignoring basic biological truth has profound costs, to ourselves, and to the law, which rightly recognizes the biological basis for distinguishing between male and female. As one radical feminist puts it, replacing sex with gender identity will result in the “legal erasure” of sex, meaning that the very law meant to protect women would become a tool to falsely affirm that a man is a woman and that he has a right to access private facilities reserved for women.

This shows that gender ideology does not operate at the margins, but trends toward totalization, as a recent flap over pronouns at the U.S. Supreme Court demonstrates. Our society should not mindlessly redefine the legal protections of sex-based anti-discrimination law to effectively neuter objective maleness and femaleness. Women have struggled too long against discrimination to have their protections undermined by gender-identity advocates.

To learn more about what ADF is doing to protect student privacy and promote compassionate solutions for all students, visit the link below. 

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Alliance Defending Freedom

Alliance Defending Freedom

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