Gender ideologues may have been able to force their way into our medical institutions, the education establishment, and even the White House, but they’re not having much luck in the courts.
Two recent cases prove that the legal system is hesitant to flip our understanding of biology upside down.
In Florida, the U.S. Court of Appeals for the 11th Circuit ruled in late December that “sex” does not include “gender identity,” and that therefore a school board policy requiring students to use the restroom that corresponds with their biological sex does not violate the Constitution or federal civil rights law.
Writing for the 7-4 majority, Judge Barbara Lagoa pointed out that much of the law regarding sex is based on the understanding that men and women are different and that separate spaces protect the rights of both sexes. Title IX, for example, specifically grants schools the right to separate bathrooms by biological sex, she wrote.
In a separate concurring opinion, Lagoa warned that the repercussions of gender ideology reach “far beyond the bathroom door.” She wrote:
There simply is no limiting principle to cabin that definition of “sex” to the regulatory carve-out for bathrooms under Title IX, as opposed to the regulatory carve-out for sports or, for that matter, to the statutory and regulatory carve-outs for living facilities, showers, and locker rooms.
And a definition of ‘sex’ beyond ‘biological sex’ would not only cut against the vast weight of drafting-era dictionary definitions … but would also force female student athletes ‘to compete against students who have a very significant biological advantage, including students who have the size and strength of a male, but identify as female … .’
Such a proposition—i.e., commingling both biological sexes in the realm of female athletics—would ‘threaten … to undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.’
Another ruling in West Virginia, released last week, also strikes down the idea that a student’s “gender identity” allows him or her to violate another student’s rights to privacy and equal opportunity. Federal district judge Joseph R. Goodwin, a Clinton appointee, ruled that a male middle school student who identifies as a girl does not have the right under Title IX or the Equal Protection Clause to participate on the girl’s cross-country and track teams.
Goodwin’s ruling is significant for several reasons, the first being that Goodwin has previously sided with gender ideologues. Just 18 months ago, he held that the male middle school student in question had to be allowed to try out for the girl’s cross-country and track teams while the case was pending. But even he admitted in his final ruling that sex is an immutable characteristic, and that changing its definition would have devastating consequences for everyone.
He wrote, “The fact is … that a transgender girl is biologically male,” and “while sex and gender are related, they are not the same.” He went on to argue that West Virginia is “permitted to legislate sports rules on this basis [i.e., sex] because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports.” There are undeniable physical differences between boys and girls, Goodwin continued, and while some gender-confused boys, specifically, might take hormonal medication to make them look more like girls, plenty of others won’t, and will thus have an inherent physical advantage over their biological female teammates.
These rulings are important victories for those pushing back against gender ideology and the harm that it is doing to women and children. They also suggest that gender activists are going to have a much more difficult time enshrining their agenda into law than they might have thought. As it turns out, facts are stubborn things. Although many other institutions have abandoned facts in their embrace of transgenderism, facts and the truths in which they are found have a habit of sticking around.