Supreme Court punts on first major transgender case, but religion angle merits ongoing coverage

Editor's note: A quick follow-up by Richard Ostling to his earlier post on this same topic, since the U.S. Supreme Court made a surprise move in this legal chess game.

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The U.S. Supreme Court decided March 6 to punt on its first encounter with the growing transgender rights movement, sending the Gloucester County School Board case back to the 4th U.S. Circuit Court of Appeals for review. The high court had scheduled this Virginia case for oral arguments March 28, but the incoming Donald Trump administration has for the time being rescinded the Obama Administration policy the 4th Circuit relied upon.

The evolving situation merits close Godbeat attention due to the major challenge for advocates of religious liberty, already on the defensive over other issues. With gay marriage legalized throughout the United States by the Supreme Court, the LGBT movement is focusing all its moxie on transgender rights.

The basics for reporters: The Obama administration’s Departments of Education and Justice notified all U.S. public schools last May that to qualify for continued federal funding they need to follow each student’s sense of personal “gender identity,” as opposed to birth biology, regarding access to “sex-segregated restrooms, locker rooms, shower facilities, housing and athletic teams (.pdf document here)."

That redefined “sex” under Title IX of the anti-discrimination law in question. For 44 years before that, the government thought “sex” meant biological gender, not an identity that may conflict with it. The new contention that gender is “assigned” at birth but flexible, rather than fixed by biology, gains cultural clout from important segments of the Democratic Party, big business, the academic world, the entertainment industry, professional and college athletics, and the like.

In the Virginia case, an anatomically female high schooler who is transitioning wanted to use boys’ toilets instead of unisex facilities the school provides. Local school districts are caught between transgender rights appeals and community concerns about privacy and security, including access to locker rooms and showers that were not raised in the Virginia dispute.

A major chunk of U.S. organized religion has reacted in unison against the Obama policy and 4th Circuit ruling. A “friend of the court” legal brief in the Virginia case (.pdf document here) allied the nation’s two largest denominations, the Catholic Church and Southern Baptist Convention, with the National Association of Evangelicals, Lutheran Church–Missouri Synod, Union of Orthodox Jewish Congregations of America and Church of Jesus Christ of Latter-day Saints (the Mormons). The filing also cited support from authoritative teachings of monotheistic Orthodox Christianity, Islam and Sikhism (Buddhism and Hinduism were not mentioned).

The brief said varied religions have “remarkable unanimity on the origin and purpose of gender as immutable and divinely ordained.” It stated that both religious teaching and “practical experience” show that “gender is a given, consisting of attributes intrinsically connected with one’s birth sex -- not an individual choice," though noting certain medically anomalous cases.

The group is concerned that change in federal policy would “provoke serious religious conflicts,” especially for schools and colleges and potentially for many other organizations.

The opposite religious stance was taken in a March 2 brief from officials and entities of Conservative Judaism, the Episcopal Church, United Church of Christ, Unitarian Universalist Association, other organizations and 1,800 individuals. It stated that this grouping includes varying beliefs about gender identity but there's a "broad and growing embrace" of transgender people within "mainstream religion" and that "fundamental human dignity" requires treatment of students that follows "religiously neutral principles of equal protection under the law."

Another major brief, from the American Civil Liberties Union, said the Virginia school's policy "humiliates and stigmatizes" transgender students, with "devastating impact."

In other Supreme Court filings, a group of religious colleges objected that the Obama administration ignored the statutory rule-making process of “notice and comment” needed for such policy changes. For that and other reasons, the Trump team contends that the legal issues involved need further consideration, a point some leading law professors make in filings.

The Trump administration also thinks that states and local schools should take “the primary role” in setting educational policy. That’s similar to contentions in the brief filed by the associations that represent the nation’s 10,000 school superintendents and 90,000 local school boards. A related issue is whether federal judges and agencies have the power to settle social issues, rather than the U.S. Congress and state legislatures.

Meanwhile, psychiatrists and other professionals are debating whether surgery or hormone treatments are appropriate for youths with “gender dysphoria,” in some cases involving children in elementary school.

Journalists should bookmark this: All the texts regarding Gloucester County are posted by the ever-handy scotusblog.

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