by Maggie Gallagher
The Human Rights Campaign (HRC) is boasting that 53 major corporations signed onto its amicus brief in G.G. v. Gloucester County School Board, alleging that permitting schools to base locker room and bathroom policies on biological gender will be bad for their business and violates their core corporate values.
The lopsidedly tech-heavy list includes: Airbnb, Amazon.com, Apple, Dropbox, eBay, Etsy, Gap, IBM, Intel Corporation, Kickstarter, LinkedIn, Lyft (but not Uber), MAC Cosmetics, Massachusetts Mutual Life Insurance, Microsoft, Mitchell Gold + Bob Williams, Pandora Media, PayPal, Salesforce, Shutterstock, Spotify, Tumblr, Twitter, Williams-Sonoma, Yahoo! and Yelp.
Oral arguments are set to take place in G.G. v. Gloucester County School Board on March 28. But this week, Gloucester County School Board has asked the Supreme Court to postpone oral arguments to give the Justice Department time to consider the case. In late February, the day after Jeff Sessions became attorney general, the Justice Department withdrew the Obama administration’s guidance letter which told every public school in America that Title IX’s ban on sex discrimination requires they open up single-sex bathrooms, locker rooms, shower rooms and dorm rooms to members of the opposite sex with gender identity issues. But so far, Trump’s administration has not substituted another guidance letter, saying they need time to study the issue. Moreover, the Trump administration has yet to appoint a solicitor general, who would normally argue the government’s position before the Court.
Gavin Grimm’s ACLU lawyer Joshua Block told the Court waiting is unnecessary and would cause irreparable harm to transgender kids across the country.
Certainly the federal government ought to be given a chance to weigh in on the meaning of Title IX, which was clearly not intended to address LGBT issues (although some courts have started to interpret sex discrimination in this way). But even more, Gloucester County would like Trump’s Court nominee Neil Gorsuch seated before the case is argued. Gorsuch’s Senate hearings start on March 20, eight days before oral arguments in G.G. v. Gloucester County School Board are scheduled.
Big corporations don’t usually weigh in on social issues outside their core business interests. And the argument the brief makes that school transgender policies are going to hurt their businesses is laughable. But we are seeing this trend emerge again and again: Big Business has taken the lead in stamping on at least half their customers’ values. The Chamber of Commerce has emerged as one the leading voices against conscience protections for traditional marriage believers in states like Indiana and Georgia.
In a February 17 interview, I asked Gov. Sam Brownback (R-Kan.), who was urging Congress to act on life, “Why?” He seemed as puzzled as I am: “I’ve asked several national prominent business leaders ‘what are you doing, why wouldn’t you get involved in the life issue and then you get involved in this social issue?’ I don’t get a clear answer. Normally the business community stays out of social issues, and I don’t know why.”
But he said their power to divide Republicans has put a stop to legislative action in most states: “I’ve been around legislative bodies. You have to be able to help your weaker members vote for something, and you can push them and get them to vote for life and we win that agenda and that’s one really to push for. Because if you push the items on the LGBT agenda like [former North Carolina Gov. Pat] McCrory, you are going to have a great deal problems with your own party members.”
Unless and until social conservatives develop more genuinely political institutions to protect their allies like Gov. McCrory politically, the GOP is not going to act.
Let’s hope the Supreme Court sees the sense in waiting for Gorsuch.