In May, President Obama’s Department of Education (USED) sent out a decree to public schools across the United States requiring that biological boys and girls be allowed to use the bathrooms, showers, and changing facilities that correspond with the “gender identity” of their choosing. Accompanying this mandate was the explicit threat that schools would lose their federal education funding if they refused to comply, forcing school boards to choose between protecting their students from a radical gender ideology or protecting their government slush fund.
Politicians usually go with the money. That’s what happened with Common Core back in 2009 when the Obama Administration used Race to the Top grants to incentivize states to adopt the low-quality standards.
But that was not the case for the Gloucester County School Board in Virginia. The USED decree came after Gavin Grimm, a 17-year-old transgender male (i.e. biological female) in Virginia sought to sue the school district when Grimm was not allowed to use the men’s restroom. The case gained national attention in April when the 4th Circuit Appellate Court in Richmond ruled that Grimm could indeed sue, citing discrimination under Title IX of the Civil Rights Act, as The Washington Post reported:
In backing high school junior Gavin Grimm, the U.S. Court of Appeals for the 4th Circuit deferred to the U.S. Education Department’s position that transgender students should have access to the bathrooms that match their gender identities rather than being forced to use bathrooms that match their biological sex. The department has said that requiring transgender students to use a bathroom that corresponds with their biological sex amounts to a violation of Title IX, which prohibits sex discrimination at schools that receive federal funding.
The fundamental disagreement taking place is over the definition of “sex” in Title IX and whether “sex discrimination” refers only to “biological sex” or also covers “gender identity.” The Obama Administration is taking the position that, via Title IX, a person can identify as whatever gender they want and must be accommodated in all instances. That means men in women’s bathrooms, but it also means men in women’s showers and changing rooms, and even men on women’s sports teams.
Feelings should trump biological reality, not just in the mind of the individual, but within the letter of the law itself.
The Gloucester County School Board did not give up, though, after being rejected by the appeals court. They chose to file an injunction with the Supreme Court. And yesterday, the Supreme Court ruling came down, 5-3, in favor of the injunction.
At Breitbart, Ken Klukowski notes that, while Justice Stephen Breyer voted in favor of the injunction, he still signaled that, if the case came to the Court, he would likely vote in favor of Obama’s transgender mandate:
The Court’s one-page order included the note that Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan would all deny the stay.
It also included a paragraph by Justice Stephen Breyer where he explained that he voted to grant the stay because the Court was currently in its summer recess, and so he was willing to preserve the status quo for a short period of time until the Court has an opportunity to consider a formal petition for review.
This is significant because the Supreme Court considers several factors when deciding to grant a stay, the most important of which is normally whether each justice believes that the petitioner has a reasonable likelihood of success if the Court grants review of the appeals court’s decision.
The three justices who voted to deny the stay all but guarantees that each would rule in favor of Obama’s new transgender policy. Breyer’s taking the unusual step of writing to explain that he was voting for the stay to “preserve the status quo” as a “courtesy” until the Court can take the case strongly signals that he, too, does not currently plan to vote in favor of the school board.
This means that if Gloucester County School Board v. G.G. came before the Supreme Court today, it would likely be split 4-4, or possibly even 5-3 in favor of Obama’s transgender mandate if Justice Kennedy joins Breyer, Kagan, Sotomayor, and Ginsburg, as he did in last year’s Obergefell v. Hodges.
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It is clear, then, that the first obvious consequence of the next Supreme Court Justice appointment — and really the presidential election itself — will be the result of this ruling. A strict constructionist justice in the same mold as the late Justice Antonin Scalia would give parents a shot at preventing the left’s radical gender ideology from being forced on our schools. However, a Hillary Clinton-appointed justice in the mold of Justice Ruth Bader Ginsburg would be a lockstep vote to uphold Obama’s mandate.
We have talked ad nauseam about the importance of the Supreme Court on a number of issues, and this certainly would not be the only consequence of a liberal court — gun rights would likely be curtailed, abortion rights would be expanded, and conscience rights would be denied — but this would indeed be the first consequence.
Donald Trump may be a frustrating candidate — maybe even a bad candidate on some days — but we could really use a conservative justice right now. Love him or hate him, Donald Trump is conservatives’ only chance at getting one. Otherwise, America is looking at liberal judicial supremacy for the next couple decades and a functional inability to win on the issues that really matter.
Jon Schweppe is the Communications Director for American Principles Project. Follow him on Twitter @JonSchweppe.