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Transgenderism and the Supreme Court

November 20, 2019
By Jon Whitehead

Since 1964, federal law has prohibited discrimination on the basis of sex. At the time, no one argued that “sex” included sexual orientation or transgender identity. Congress has repeatedly rejected attempts to add specific references to sexual orientation and gender identity.

But some new theories of sexuality and gender treat “sex” as a set of stereotypes about human bodies, and they treat gender as subjective. Under these theories, if a person believes they are a woman, it is irrational and discriminatory to suggest the physical evidence shows anything else.       In three cases to be decided this term, the United States Supreme Court will ask whether the non-discrimination laws should be read today as if Congress had protected sexual orientation or transgender status all along. Especially in the case concerning transgender status, the Supreme Court is being asked to accept that “sex” is a set of stereotypes.

In one of the cases before the court, the United States Court of Appeals for the 6th Circuit adopted this reasoning. Harris Funeral Home had a dress code for male and female employees, which prior cases have allowed. But when a male employee announced his intention to “transition,” the court said an employee could not be fired for refusing to wear a male uniform. It suggested that “sex” lacks any “fixed external referent.”

Suddenly, the non-discrimination law meant to protect the sexes from bias threatens to make any claim to be a man or woman vague and unintelligible.

My firm filed a “friend of the court” brief in Harris Funeral Home on behalf of more than two dozen groups concerned about the potential impact of this decision on the rights of parents. The cases at the court do not involve children. But the definition of male and female, and ideas like “boy” and “girl,” are important to the relationships between children, their mothers, and their fathers. In one fell swoop, “mother,” “father,” “son,” and “daughter” would lose their legal meanings. Laws that are supposed to help and guide mothers and fathers would turn into Kafkaesque traps.

This kind of change in the law would influence parental choice in education. For example, the law currently says schools can make some distinctions based on (birth) sex. These include:

– Human sexuality classes
– Toilets
– Locker rooms
– Showers
– Living/sleeping accommodations (dormitories)
– Social fraternities or sororities
– Men’s and Women’s athletics
– Father-son or mother-daughter activities, and more

The law protects these legitimate interests of male and female students and parents.

If sex has no external referent in biology, however,  a mother could not reliably choose an all-girl or all-boys educational experience for their child. Yes, that choice is supposedly protected. But it would be an illusory choice. No parent could agree with other parents about what it means to be an all-girl experience. They could only agree to mutually accept certain children as girls. Any child claiming to be a girl must be accepted as a girl, because all objective definitions of “girl” would be based on stereotypes.

Even “father” and “mother” would lose their objective meaning. Black’s Law Dictionary says a “mother” is a “woman who has given birth to, provided the egg for, or legally adopted a child” – a term from before the twelfth century. A “father” is a “male parent.” But if “woman” and “man,” “female” and “male” are unfixed and stereotypical, one can only ever be sure that one is a parent.

Beyond educational experiences, if sex lacks an objective meaning, it undermines parents’ role in directing their children’s care.

In 2015, Professors Eric Vilain and J. Michael Bailey published an op-ed in the Los Angeles Times, asking “[w]hat should you do if your son says he’s a girl?” They hypothesized a five-year old boy who wants to be a girl and concluded, “As scientists who study gender and sexuality, we can tell you confidently: at this point no one knows what is better for your son … we don’t yet know whether it’s better to encourage adjustment or persistence.”

According to the World Professional Association for Transgender Health (WPATH), most dysphoria in young children “desists,” rather than persists. In a study of young boys referred to gender dysphoria clinics, more than 77% reported little or no dysphoria in adulthood; the rates among young girls are similar. WPATH says persistence is higher for adolescents, but no formal, prospective studies exist. The claims are based on a single study of just seventy children.

However, activist groups demand sex and gender identity be treated as immutable. Nineteen states now ban so-called “conversion therapy.” In many cases, the bans include therapy targeted at acceptance of male or female sex. Maryland’s law prohibits “any effort to … change gender expression.” Even “coping” therapy cannot try to change gender identity.

As Villain and Bailey say, a young girl who says she is a boy might desist. Most children do desist. But professionals in these states could be punished for suggesting the little girl might come to accept her female body and identity.

Assistant professor Lisa Littman, of Brown University’s School of Public Health, recently published a descriptive study proposing a clinical phenomenon she termed “Rapid Onset Gender Dysphoria” (ROGD).[1] The study asked whether some gender dysphoria has roots in social influences.

Littman collected parent reports, which often described traumatized youth and overeager healthcare providers. One said their twelve-year-old daughter was bullied and, “as a result she said she felt fat and hated her breasts.” Another parent said her child’s peers were “constantly putting down straight, white people for being privileged, dumb and boring…”

When asked what sources influenced their children, 63.6% identified “YouTube transition videos.” One parent said some materials offered a philosophy of “if you are even questioning your gender — you are probably transgender.”

Further, most of the parents believed their child used online information to misrepresent parts of their history.

Littman’s paper is a proposal about some dysphoria, not a description of all dysphoria. “It is unlikely,” she notes, “that friends and the internet can make people transgender.” But it is plausible that beliefs about gender can start and spread socially, such as the belief that non-specific symptoms are dysphoria, or that happiness requires a transition.

Finally, theories of unmoored gender can even be used to deprive parents of the fundamental rights of custody and conscience.

In Ohio, “JNS” contacted a crisis hotline and said his parents had told him to “kill himself.” Ohio Family Services petitioned to remove JNS from his parents. The court found the parents had sought appropriate medical treatment, but were reluctant to support the clinic’s recommended transition. The court was skeptical of the clinic’s cookie-cutter pattern of clinical diagnoses. The transgender clinic’s director testified that “100% of the patients seen by Children’s Hospital Clinic who present for care are considered to be appropriate candidates for continued gender treatment.” Still, JNS’s parents agreed to give up custody, under pressure from doctors and advocates.

Other state governments suggest that “nonaffirming” parents threaten child well-being. Vermont says workers must “affirm the … identity of all children to create a supportive environment,” and that “division staff shall not attempt to persuade a [transgender] individual to reject or modify their … gender identity….”

Instead, the division suggests supportive families always “support children’s identities even if it feels uncomfortable.” Children who “cannot safely remain in their homes” will be placed in an “affirming” environment.

LGBTQ advocates now ask that parents affirm even hypothetical dysphoria. The Human Rights Campaign’s “All Children – All Families” project certifies foster and adoption groups. One requirement for certification is telling foster parents that they may not even be aware of their child’s sexual orientation or gender identity at the time of placement. Foster parents are expected to affirm any future identity.

In other countries, this kind of policy has led to religious parents being blocked from fostering or adopting. An evangelical couple in Canada was denied an adoption because their beliefs were “contrary to the ‘official position of the Alberta government.’” A United Kingdom agency blocked an evangelical couple’s adoption after they said their foster children would benefit from a “mummy and daddy.”

And in a case in Canada, a parent’s opposition to his child’s transition was deemed “family violence.” The parent was gagged by court order. While the First Amendment protects speech in the United States, LGBTQ advocacy groups are pushing to define non-affirmation as a kind of unprotected violence.

The Supreme Court has long said that “the child is not the mere creature of the state.” Part of the maturity that accrues to parents is the hard-earned wisdom that the human internal compass does not reliably point to a true north. But as we’ve seen, changing the definition of “sex” may undermine parental rights of choice, care, custody, and conscience. As the court considers these disputes between adults, it should consider how those same words protect parents’ important work in helping the next generation accept and embrace the gift of manhood and womanhood.

Jonathan Whitehead is a Harvard-trained lawyer practicing in suburban Kansas City, Missouri.


[1] Lisa Littman (2018) Parent reports of adolescents and young adults perceived to show signs of a rapid onset of gender dysphoria. PLoS ONE 13(8): e0202330.; PLoS ONE conducted an editorial review, and issued more detailed information about the processes, but left the Results section unchanged. See Lisa Littman, Correction: Parent reports of adolescents and young adults perceived to show signs of a rapid onset of gender dysphoria.” PLoS ONE 14(3): e0214157. (Last accessed August 10, 2019).

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