Two socially conservative legal groups are asking the Supreme Court to stick to biology as the justices evaluate a Virginia transgender student’s challenge to sex-specific school policies.
Liberty Counsel and the Alliance Defending Freedom filed friend-of-the-court briefs earlier this month in Gloucester v. G.G. The case stems from the federal government’s recent interpretation of Title IX as prohibiting “discrimination based on a student’s gender identity.”
The civil-rights offices of the departments of Justice and Education had threatened to withhold federal funds from the Gloucester County School Board unless it let Gavin Grimm, who is biologically female, use communal male restrooms.
Though a federal appeals court sided with the federal government out of deference to its controversial interpretation of Title IX, the conservative groups’ briefs argue that there is no scientific basis for the government’s view.
‘We’re not psychological hermaphrodites at birth’
The federal government’s interpretation of Title IX “replaces scientific reality with an artificial social construct,” says the brief by Liberty Counsel, which was composed and filed on behalf of Dr. Judith Reisman, a research professor at Liberty University’s law school.
Reisman is also the founder and director of the Child Protection Institute, and she has spent her career fighting the spread of pornography and the underlying sex research that mainstreamed it.
The conflation of gender identity and sex is “pseudo-science built upon child sexual abuse and advanced by human experimentation and socio-political ideology,” the brief says.
MORE: Appeals court ignores plain words of Title IX in bathroom case
The government’s view stems from ideology largely inspired by the work of Dr. Alfred Kinsey, the father of sexology, who based his findings on controversial and disputed evidence including that of pedophiles’ personal accounts, according to the brief.
Dr. Harry Benjamin, the “Father of Transsexualism,” used Kinsey’s work as the basis of his call for a complete revision of “legal and moral codes” that regard gender as binary and based on biological sex.
He created his own form of treatment for patients suffering from “gender dysphoria” and argued gender is nothing more than a “social construct” assigned at birth, according to the brief.
It cites research by both religious and secular scholars on DNA analysis and mapping, including a 2006 paper by University of California-Irvine Neurobiology Prof. Larry Cahill on “Why Sex Matters for Neuroscience.”
Research has “proven that there are distinct ‘male’ and ‘female’ blueprints created from the moment of conception,” the brief argues. Quoting child psychiatrist Miriam Grossman, it continues: “We’re not psychological hermaphrodites at birth, potentially masculine or feminine – we are wired for one or another in the womb.”
No ‘informed consent’ when your brain can’t handle the concept
The brief calls the government’s interpretation of Title IX “inimical to the health and welfare of children and antithetical to the Departments’ goal of providing a safe educational environment for all.”
The government’s regulatory guidance would sanction the use of “irreversible, harmful, life-changing procedures,” such as puberty-suppressing drugs and cross-sex hormones, on children with “immature brains” who can’t give “informed consent.”
Though the brief doesn’t cite any case law on the threshold for informed consent for minors, it argues that the government must provide long-term studies to show the consequences of such treatment on minors – potentially permanent sterility and severe mental distress.
Liberty Counsel cites the results of a 2008 study in the Journal of Sexual Medicine, which found that 80 to 95 percent of children who say their gender identity doesn’t match their sex “disavow such notions when they attain physical, psychological, and emotional maturity.”
It also cites a 2004 study published in Science that found the part of the brain that processes “complex concepts” such as gender identity “usually” does not mature until the child’s early 20s.
Increased suicide risk?
The government’s view could even lead to worse public-health outcomes, according to the brief.
Recent European studies have shown that adolescents who get sex-change operations or gender identity-related hormone treatments have “increased mental illness and a much higher than average rate of premature death,” including suicide, even controlling for previous mental problems.
In perhaps the most recent citation in the brief, it points to an article published last fall in The New Atlantis by epidemiologist Lawrence Mayer and psychologist Paul McHugh.
They wrote: “The available evidence from brain imaging and genetics does not demonstrate that the development of gender identity as different from biological sex is innate.”
Students should not be treated like lab rats in “unisex social laboratories,” Liberty Counsel wrote: Previous scientific research has shown that telling students to “disregard their physical and psychological makeup” will “create a traumatic environment” for them.
High court has long upheld independence of school boards
The Alliance Defending Freedom’s friend-of-the-court brief reminds the high court early that the government’s new view of Title IX did not result from a notice-and-comment rulemaking, but the Department of Education “nonetheless enforces it as binding on all schools receiving federal education funding.”
It says that “protecting bodily privacy is squarely within the purpose of the Title IX,” whereas transgender students are asking the government to “affirm their subjectively perceived sex,” a demand that is “divorced from the plain text of Title IX and its regulations.”
The brief relies heavily on Supreme Court precedents that give local school boards “broad discretion in the management of school affairs.”
The transgender bathroom dispute is precisely among those “conflicts which arise in the daily operation of school systems,” it said, citing one such ruling.
It even cited a ruling most associated with the speech rights of students, 1969’s Tinker, which nonetheless reiterated that state and school officials have “comprehensive authority … to prescribe and control conduct in the schools.”