How could you take the most irrevocable law of nature — a man being a man and a woman being a woman — and twist it so the exact opposite becomes settled law? Leave it to the courts.

A constitutional right to force transgenderism on the states

In September, a federal district judge ordered Highland Local School District, a school district outside of Akron, Ohio, to treat a boy “as the girl she is” for all official school business. One cannot possibly conjure up a more radical manifestation of judicial tyranny than forcing school districts to violate the most immutable laws of nature. In any other generation, a judge like this would be impeached, the states would ignore the ruling, and Congress would immediately use Art. III Sec. 2 of the Constitution to remove such cases from the jurisdiction of federal court. Unfortunately, none of that happened and nobody in politics even knows or cares about this case.

Instead, plaintiffs were left with no choice but to appeal to the Sixth Circuit for a stay on the district judge’s ruling. Yet, late last week, in a 2-1 decision, the appeals court denied the request. Worse, they tipped their hand on the merits of the case, asserting the notion that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination” is, in fact, settled law. Referring to the boy as “Jane Doe,” the court’s majority opined that the status quo in this case is transgenderism and that the plaintiffs didn’t even raise “serious questions on the merits.”

First, to the extent we should even engage in a debate with such metal illness and judicial lawlessness, the court’s argument that maintaining separate bathrooms for the sexes is discriminatory, is in itself, internally contradictory. As Ed Whelan explains:

The panel majority fails to recognize the elementary reality that a policy that requires a boy who identifies as female use the boys’ restroom does not involve sex stereotyping at all. On the contrary, that policy treats boys as boys, irrespective whether they engage in gender-conforming behavior. Likewise, that policy does not discriminate on the basis of gender identity: boys can’t use the girls’ restroom, whether or not they identify as female.

More foundationally, how have we stooped to a point in judicial supremacy that the court can not only rewrite legislation, constitutions, history, and traditions, but can alter the most immutable laws of nature and coerce their social transformation agenda on the states and the other branches of government? What’s worse, this comes from the Sixth Circuit, which is supposedly one of the “better circuits” with more Republican appointees. Yet, this decision comes on the heels of some other bad opinions from that circuit, such as the one in the Michigan recount and Ohio’s effort to clean its voter rolls.

Are we as a society going to continue peddling this myth of judicial supremacy even to the point which we allow them to declare the exact opposite of laws of nature as settled law?

Republicans cannot run away from the cultural Marxists on this issue. Within the next two months the Supreme Court will likely render a decision on transgenderism in Grimm v. Gloucester County School Board. Given that we already know where Anthony Kennedy stands on this issue, Grimm will serve as the transgender-version of Obergefell and have far-reaching and disruptive consequences for our society, culture, system of government, and religious freedom.

It’s time for the other branches to get in the constitutional arena?

The solution to this problem is very simple.

As a first step, Congress should pass and Trump should sign into law a judicial reform bill, removing from the federal judiciary jurisdiction to adjudicate any case forcing states or local school districts to redefine sexuality. It’s sad that we’ve reached a point when we even recognize that courts would have jurisdiction in the first place, but this step is unfortunately necessary. This move would redirect any litigation to state courts, whose judges are elected in most states. According to a recent analysis conducted by a sexual identity legal group, state courts that are elected are much less likely to issue rulings tendentious to its movement.

However, in order to act immediately and get around the legislative grind and the filibuster, Congress and the Department of Justice (under the helm of Jeff Sessions) must work to immediately block implementation and enforcement of judicial transgenderism.

The very source from which liberals draw upon to promote a powerful judiciary is also a repudiation of the notion that the courts have exclusive and final jurisdiction over constitutional interpretation. In fact, an honest understanding of judicial review requires that members of the other branches of government also act on their conscience to properly interpret the Constitution as it relates to the interaction of the particular issue with their powers.

The Truth About Marbury v. Madison

To begin with, the notion that a federal court could grant standing to a plaintiff to directly overturn a state or federal law on a broadly political/social issue, based on constitutional interpretation, is very dubious. Everyone agrees that the main job, if not the exclusive job of the federal courts, is to interpret the application of the statute, not to serve as a veto. That power was given to a governor or president.

The legal profession draws upon Chief Justice John Marshall’s opinion in Marbury v. Madison as the foundation for judicial supremacy and the power to veto statutes. Using Marbury, which did not involve a social issue of broad political consequence, as a source for judicial tyranny, is tenuous from the get-go. The opinion in which Marshall established judicial review was merely non-binding dicta because he already ruled that plaintiffs lacked standing to even consider the case. Moreover, he clearly misread the role of Congress and the court’s scope of original jurisdiction and should have recused himself because he was directly involved in the outcome of the case.

Putting Marshall’s political motivations aside, Marbury is actually a refutation of judicial supremacy, especially as it relates to those who interpret the Constitution as a living and breathing document. All Marshall meant by declaring that “it is emphatically the province and duty of the Judicial Department to say what the law is” was that, although the main job of the court is to interpret the statute, the Constitution is ultimately the supreme law of the land. Given that every judge swears an oath to uphold the ultimate law of the land — the Constitution — the court has a duty to grant relief to a plaintiff with legitimate standing against a law that manifestly violates the plain meaning of the Constitution as it was adopted. His main rationale was that for a judge to rule in an individual case against the Constitution, it would violate his oath of office.

Freeze frame: for that very reason, it is a violation of the oath of office for any member of the legislative branch, the executive, or the state governments to exercise their powers in contravention to the Constitution as they understand it because they take the same oath to defend the same Constitution as judges do.

Marshall never intended for the courts to be the sole and final arbiter of constitutional interpretation. He meant that even the courts, the weakest branch — that is unelected and wields “neither force nor will” over public policy — has a responsibility to uphold the Constitution because its members also swore an oath to do so. How much more so the executive branch with the power to enforce the laws and Congress with the powers to legislative and appropriate funds must work to uphold the Constitution as they understand it.

Now let’s returns to the contemporary courts whose members offer not a scintilla of original constitutional interpretation and blatantly seek social transformation on broadly political issues. Does anyone think for a moment that Marshall would have said to follow such nonsense?

Accordingly, in the case of transgenderism, here is what the other two branches can do. The courts were deliberately denied any mechanism to enforce or fund their decisions, which in itself should prove conclusively that they were not intended to have the final say on political issues. When the Supreme Court inevitably rules in Grimm in favor of mandating transgenderism on school districts, Attorney General Jeff Sessions should immediately write an opinion for the executive branch of government (on behalf of the president) saying that his version of the Fourteenth Amendment (and Title IX) actually doesn’t mention anything about a boy thinking he’s a girl. As such, for the purposes of executive powers, they will not enforce this decision. Therefore, if the ACLU sues a principle or school superintendent for not allowing a boy in a girl’s bathroom and they get a lower court to apply Grimm as precedent and issue a bench warrant to arrest that individual, Sessions can refuse to send out the U.S. Marshals to execute the warrant. This is how we avoid Kim Davis situations.

Likewise, members of the House and Senate Judiciary committees should write their own opinions stating that for the purposes of the legislative branch of government, their oath of office dictates that they must defund any federal action taken against a school board on account of the transgender agenda.

Similarly, state executive officers can then say that for their purposes of applying the Constitution, they will not send out state troopers to execute the warrant.

Perforce, the courts can “apply” the Constitution in the most dyslexic way imaginable to their hearts content as it relates to their job of adjudicating individual cases and controversies. But their ruling will be mere “judgment” and will have “neither force nor will” on public policy.

The point is just like there is judicial review, there is also executive review and legislative review (as well as state review). And those branches have a lot more force and will behind their “review” of the Constitution. Thus, the judiciary is not supreme in our system; the Constitution is supreme. And all the branches have a responsibility to uphold it. The entire reason why Marshall said courts can also get in on the business of constitutional interpretation is because if they were to ignore the Constitution as written and just focus on applying a patently unconstitutional law, it “would subvert the very foundation of all written constitutions.” By the same token if we allow only the courts to interpret the Constitution — to the point that they now mandate transgenderism on the states — what is the purpose of a written Constitution?

It’s time we finally right the ship on judicial supremacy. There is no better place to start than with their most egregious contortion of natural law. (For more from the author of “6th Circuit: Transgenderism Is Settled Law!” please click HERE)

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A recent nationwide survey revealed that “60 percent of transgender Americans have avoided using public restrooms for fear of confrontation, saying they have been harassed and assaulted.” The “landmark” survey cites data based on the responses of 27,715 individuals, or an estimated 2 percent of the adult transgender population (which comprises only 0.6 percent of the entire U.S. population).

Reuters refers to transgender people as a “severely understudied group whose experiences and challenges from medicine to law to economics and family relations are poorly understood.” And the National Center for Transgender Equality, the group that conducted the survey, hopes the new data will serve as a basis for researchers and policymakers for years to come.

A survey like this demonstrates the power of the trans-victim class, and it should be a cause of great concern for any American who respects the rule of law.

Lies, damned lies, and statistics

Here is the problem with these “findings” … There is no proof that these claims are accurate. The study cites alleged encounters and experiences reported by transgender people, without a shred of documented evidence to back them up.

According to the survey, 32 percent of transgender people said they limited the amount they ate and drank at least once in the past year to avoid having to use a public restroom. Eight percent reported that they developed a urinary tract infection, kidney infection, or another “kidney-related problem” because they avoided restrooms.

From Reuters:

The findings by the National Center for Transgender Equality on public restrooms counter the message of mainly conservative politicians and religious leaders that transgender people are the antagonists preying on others. It found that 12 percent of transgender people were verbally harassed in public restrooms within the previous year, 1 percent were physically attacked and 1 percent were sexually assaulted. Nine percent said someone denied them access to a bathroom.

Notice the unmistakably ambiguous language used in the study; what constitutes “assault” or “harassment” in these scenarios? The law clearly defines these terms, but the survey does not. The survey doesn’t “counter” the conservative response to transgender people occupying restrooms that don’t correspond with their birth sex, because it doesn’t actually “find” anything.

Transgender people already receive the same level of protection under the law as their fellow citizens. They have the same legal options as any other victim of discrimination, harassment, or assault. But instead of filing a legal claim, they report their experience to a transgender advocacy group who will apply social pressure to advance their interests, without a shred of proof required. How convenient.

He-said, she-said

“Trans people have been in danger in the bathrooms. These numbers are just astronomically high,” Mara Keisling, director of the National Center for Transgender Equality, told Reuters. “This is what’s really happening in bathrooms. The nonsense of what [North Carolina] Governor [Pat] McCrory was saying is not what’s happening in bathrooms.”

Reuters notes that the survey was conducted before the passage of North Carolina’s House Bill 2, which “prohibits local governments in North Carolina from forcing places of public accommodation to allow people to use restrooms and changing facilities that do not align with their biological sex.” The bill was met with powerful backlash that launched a nationwide civil rights debate over whether transgender people should be considered a protected class.

Here’s the thing about North Carolina’s “nonsense” bathroom bill: There have been not only reports, but documented cases that prove transgender bathrooms pose real threats to public safety. But a group like the National Center for Transgender Equality is able to dismiss actual evidence with anecdotal accounts via “surveys.”

This survey is just the latest example of the Left’s “ends justify the means” approach to public policy. Whether it’s the widely disseminated “1 in 5 women are raped on college campuses” propaganda and falsehood, or the countless hate crime hoaxes and fake trends perpetuated by the agenda-driven mainstream media time and time again, unapologetic liberals are notorious for playing fast and loose with the facts. The Left has had an extremely successful track record of furthering their agenda of victimhood by convincing the public that their claims are above (bigoted) scrutiny.

Sixty percent of transgender people have been “harassed and assaulted” in public restrooms? That’s one heck of a statistic to be throwing around without a shred of proof. And seeing as how literally anything and everything can (and is) deemed an “attack” these days, the onus should be greater than ever for the accusers to provide the unassailable evidence proving such charges.

Strength in victimhood

The trans community will argue that many of these incidents of discrimination, harassment, and assault go unreported due to the fear or shame these victims feel. They have already successfully implemented this argument in the past to carve out special provisions in the workplace and, famously, in public restrooms.

In fact, the National Center for Transgender Equality was behind the LGBT report that was cited as the basis for California’s transgender affirmative action jobs program, which subsidizes restaurants who hire trans employees. These people know what they’re doing.

Consider this excerpt from the new survey’s executive summary:

The findings reveal disturbing patterns of mistreatment and discrimination and startling disparities between transgender people in the survey and the U.S. population when it comes to the most basic elements of life, such as finding a job, having a place to live, accessing medical care, and enjoying the support of family and community.

Replace the word “transgender” in the text above with “black,” “female,” or “Latino,” and you have the Left’s basic argument for identity-driven policies that forcibly “level the playing field” at the expense of true equality, justice, and safety for all. The implied claim is that the legal system doesn’t work for certain groups of people, and the only solution is to overthrow the system and create a new one. In other words, civil rights are great, but special accommodations and government handouts are not only better, but an absolute must. (A right, if you will…)

The conversation surrounding the new transgender survey is not about “equality” or “safety”; it is about subverting the rule of law and creating new policies based on feelings, not facts.

Though small, the trans-victim class is more vocal — via government allies, financial means, and political capital (with a virtual monopoly on all the greatest influencers in mainstream culture these days) — and more armed than ever. It is crucial, then, that public leaders and policymakers recognize the identity-driven agenda of the Left’s “equality” crusaders, and shut down any attempts to bulldoze over the rights of other Americans. (For more from the author of “New Transgender Survey Could Set a Terrible Precedent for Policy Based on Feelings, Not Facts” please click HERE)

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Why do we make our restrooms and locker rooms private? Each of us performs a variety of necessary life functions in front of strangers every day.

We eat in public restaurants, we work in public offices, and as anyone who ever has been stranded in an airport can attest, we even sleep in public. There is no shame or embarrassment in doing such activities in front of complete strangers.

Yet when it comes to activities that involve a measure of undressing, we realize that most people are not comfortable doing them in public—and especially not in the presence of members of the opposite sex.

So as a society, we set apart designated areas—restrooms, locker rooms, showers, changing rooms—for individuals to perform these intimate activities. In other words, private facilities exist because privacy matters.

But according to the federal government and LGBT activists, the primary function of private facilities is not privacy; it is affirmation of a person’s gender identity.

And now the U.S. Supreme Court will hear a related case out of Virginia.

In December 2014, the Gloucester County School Board made what should have been an uncontroversial decision. In response to a request to use the boys’ restrooms from a female high school student who asserts that she is male, the school board adopted a policy stating that the girls’ and boys’ restrooms can be used only by students of the designated sex.

The school board concurrently made several single-stall, unisex restrooms available for anyone, including the self-described transgender student who was uncomfortable using the communal facilities at Gloucester High School.

The board otherwise allowed the student, Gavin Grimm, to live as a male, dress like a male, and use a male name and pronouns. And by offering accommodations, the school district guaranteed that Grimm would be afforded privacy—whether Grimm chose to use the single-stall facilities or the female communal restrooms with others of the female sex.

But Grimm, 17, rejected this solution. Relying upon guidance from the U.S. Department of Education, which for several years quietly had pushed the idea that schools must treat a student consistent with his or her gender identity, Grimm sued the school district.

The suit argues that under federal Title IX and its regulations, the school must affirm Grimm’s male gender identity by allowing use of the boys’ restrooms.

The lawsuit received immediate support from the Education and Justice departments, which ultimately issued the now infamous “Dear Colleague” letter in May 2016. In it, the departments threatened to strip federal funding from any school that does not use its locker rooms, showers, restrooms, and even overnight accommodation on school trips to affirm a student’s gender identity.

The Gloucester school board courageously stood against the full might of the federal government, recognizing that complying with Grimm’s demands would violate the constitutional privacy rights of other students, to whom the board owed a duty of care.

While the school board won in lower court, the 4th Circuit Court of Appeals reversed the decision and found that the government’s re-interpretation of Title IX and its regulations should be given deference.

Under this re-interpretation, a law that allows schools to maintain separate locker rooms and restrooms on the basis of sex becomes one that orders schools to open up these facilities to anyone who asserts he or she is of the designated sex.

The school board immediately asked the Supreme Court to review the case.

On Friday, the high court accepted the case, and the implications of its eventual ruling likely will be historic and affect millions of schoolchildren across the country.

Two aspects of the case are noteworthy. First, the Supreme Court previously issued a stay, allowing the school board to maintain its policy that protects student privacy in communal facilities. The stay, which remains in effect, recognizes that there would be irreparable harm if students were suddenly forced to share locker rooms and restrooms with the opposite sex.

Second, the court declined to take up the issue of whether “Auer deference”—the legal doctrine relied upon by the federal government to claim that its nonbinding guidance interpreting Title IX have the force of law—should be overturned. Instead, the court will examine whether the interpretation itself is consistent with Title IX and should be given deference.

As a result, the privacy implications of the federal government’s lawless actions are likely to play a prominent role in the case.

And it is clear that the federal government’s interpretation of Title IX has no foothold in the law, whether one looks to the text of Title IX and its regulations (which authorize schools and colleges to maintain separate dorms, locker rooms, and restrooms on the basis of sex); the law’s legislative history (where concerns over privacy and safety were addressed by allowing sex-specific facilities); or subsequent court decisions interpreting the law (the overwhelming majority of which reject the claim that Title IX extends to gender identity or requires schools to affirm a student’s self-perceived gender).

Indeed, when you research the purpose of Title IX, it is apparent that Congress sought to affirm the equality of women by guaranteeing them equal access to educational opportunities.

One’s sex is irrelevant in the classroom or science lab. Yet by recognizing that sex-specific facilities are permissible when privacy is needed, Congress communicated that women are not disaffirmed as being equal to men nor denied equal educational opportunities by the commonsense recognition of biological differences and the need for privacy that those differences necessitate.

The same is true in the Gloucester County case. The school board has shown incredible compassion and accommodation to Gavin Grimm. Yet Grimm and the federal government are not seeking privacy or equal educational opportunities; Grimm is receiving both. Instead, they are demanding affirmation of Grimm’s decision to identify as a male.

But locker rooms and restrooms are not for affirmation; they are for privacy. And schools should remain free to put the privacy of their students above political agendas. (For more from the author of “Supreme Court Enters Legal Battle Over Gender Identity and the Purpose of Restrooms” please click HERE)

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