Not now, but later. That is the best reading of the U.S. Supreme Court’s action in vacating a lower court decision in a transgender rights case and sending the case back for reconsideration.
The Supreme Court acted March 6 in the case of a Virginia teenager with the biological characteristics of a girl who wants to be considered male and to use the boys’ bathroom at school (Gloucester County School Board v. G.G.).
But other transgender cases calling for decision by the Supreme Court are in the offing. Among them is one involving a North Carolina law requiring transgender persons to use public facilities of their biological sex.
In the Virginia case, a three-judge panel of the 4th Circuit U.S. Court of Appeals ruled 2-1 last May that the county school board could be sued for turning down the transgender teen, 17-year-old Gavin Grimm. In doing so, the court relied on Obama administration guidelines for schools.
Last month, however, the Trump administration withdrew those guidelines, which told schools to accommodate transgender student preferences, and said it was reviewing the legal issues.
Having already accepted the Virginia case and scheduled oral arguments, the Supreme Court then asked both sides — the school board and the American Civil Liberties Union lawyer representing Grimm — what they thought it should do next. Both recommended moving ahead, but the board’s attorney also said that before reaching a decision bearing on federal law, the court should hear what the present administration has to say.
Church and state
Earlier, the chairmen of two committees of the U.S. Conference of Catholic Bishops welcomed withdrawal of the Obama guidelines, calling them “a one-size-fits-all approach to ... sensitive issues involving individual students.”
“Such matters are best handled with care and compassion at the local level, respecting the privacy and safety concerns of all students,” said Archbishop Charles J. Chaput of Philadelphia, chairman of the bishops’ Committee on Laity, Marriage, Family Life and Youth, and Bishop George V. Murry of Youngstown, Ohio, chairman of the Committee on Catholic Education.
From a legal standpoint, whether or not transgender individuals are covered by the ban on sex discrimination in Title IX of the federal civil rights law is central to this dispute. Nobody imagines Congress had that in mind back in 1972 when it adopted Title IX, but transgender activists say courts should interpret the law in light of current thinking.
People who reject this approach say it reflects the rise of the controversial ideology called gender theory, which contends that sexual identity is a social construct shaped by custom and individual preference. That view in turn converges with secular culture’s stress on individual rights, which places high priority on empowering individuals to do as they please, provided — as those who support it often say — no one else gets hurt.
Critics of gender theory include Pope Francis, who calls it a “great enemy” of the family. His document on marriage and family, Amoris Laetitia, published last year, says that “biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated.”
In view of the Supreme Court’s record for years on social issues like abortion and same-sex marriage, the prospect that it will soon enter the thicket of transgender debate is troubling to people who hold traditional views on moral questions.
Already they see an ominous sign in the support for transgender rights now common in secular media — the New York Times and Washington Post are notable examples — which they believe bears a striking resemblance to the media campaign on behalf of same-sex marriage prior to the Supreme Court decision in its favor two years ago.
In the context of Supreme Court jurisprudence, gender theory goes hand-in-glove with the line of thought expressed in 1992 in a plurality opinion by Justices Sandra Day O’Connor, David Souter and Anthony Kennedy written in a pivotal case upholding legalized abortion called Planned Parenthood v. Casey.
O’Connor and Souter have left the court since then, but Kennedy, now 80, remains as a swing vote who has authored majority opinions in recent cases legalizing same-sex marriage.
A much-quoted passage in the 1992 opinion, generally considered to be Kennedy’s work, says, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, and of the mystery of human life.” But if liberty covers all that, so the thinking goes, then surely it includes a right to determine one’s sex.
Where it leads
In the Virginia transgender rights case, gender theory was sharply criticized in an amicus curiae brief to the Supreme Court by three veteran psychiatrists — Dr. Paul R. McHugh of the Johns Hopkins University medical school, Dr. Paul W. Hruz of the Washington University medical school and Dr. Lawrence S. Mayer of Arizona State University. The brief was submitted to the court by attorneys Gerard V. Bradley of the Notre Dame law school and Tory H. Lewis of Little Rock, Arkansas.
The psychiatrists distinguished between sex, a biological fact determined at conception by chromosomal makeup as either male or female, and gender, a product of social convention and personal choice. They also recognized a condition called gender dysphoria — “a distressing and persisting incongruity between their sex and their sense of themselves as male or female.”
Children who experience this condition usually grow out of it, they said, adding that the use of hormones or surgery to effect so-called sex change can have “catastrophic outcomes.” And “no matter now disturbing this condition of gender dysphoria may be,” they said, “nothing about it affects the objective reality that those suffering from it remain the male or female persons that they were at conception, at birth, and thereafter.”
The brief accused the 4th Circuit Court’s ruling of lending support to “a scientifically unwarranted, dangerous experiment upon our nation’s children,” which it said fails to take into account its “far-reaching implications.”
It also cited a position statement last August by the American College of Pediatricians that strongly opposes tinkering with biological sex. A child treated this way, the pediatricians said, is at risk of eventually being left “psycho-socially isolated and alone.”
The Supreme Court’s action in sending the Virginia case back to the 4th Circuit raises the possibility that, by the time the court addresses transgender issues, Judge Neil Gorsuch will have been confirmed and will occupy its currently vacant ninth seat. Indeed, it is even conceivable that by then one of the court’s present members will have stepped down and been replaced by still another Trump nominee.
Russell Shaw is an OSV contributing editor.