A federal appeals court has issued a ruling that not only portends a firestorm on transgender policies in public schools but raises fundamental questions about language, biology, and the law’s role in extricating truth from obscurity when political correctness is prevalent.
In its ruling in Parents for Privacy v. Barr, a three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed a lower court’s decision and found that an Oregon school district did not violate federal law or constitutional rights with a policy allowing a transgender boy (a biological girl who lives as a boy) to use restrooms, locker rooms, and showers set aside for boys.
A portion of the Feb. 12 ruling reads:
In summary, we hold that [Oregon’s] Dallas School District No. 2’s carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students; it does not violate Title IX or any of Plaintiffs’ cognizable constitutional rights. A policy that allows transgender students to use school bathroom and locker facilities that match their self-identified gender in the same manner that cisgender students utilize those facilities does not infringe Fourteenth Amendment privacy or parental rights or First Amendment free exercise rights, nor does it create actionable sex harassment under Title IX.
The ruling is frustrating on legal grounds: Even though the panel of judges suggests the 14th Amendment doesn’t grant a child privacy rights, it states that the same amendment gives a transgender child the “right” to use a restroom matching their gender identity—which is essentially a different kind of privacy right.
How can that be?
According to the 9th Circuit panel’s ruling, the transgender child’s right to use a bathroom that matches how the child feels that day usurps another child’s right to privacy, and thus the transgender child isn’t simply as protected as other kids, but more protected.
Just as disturbing, if not more so, is the court’s insistence on making such a blanket ruling—denying the privacy rights of kids on so many legal grounds—after the judges clearly have accepted the premise of the transgender debate, which is hardly on solid ground at all.
For example, the ruling reads: “The panel held that there is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth.”
A transgender person who was assigned the opposite biological sex at birth. What does that mean?
What does it mean to be “assigned” sex at birth, eschew that, live as the opposite sex, and demand to be legally recognized as that gender with protections under the law?
Perhaps the 14th Amendment does not offer protection for privacy or bathroom rights for children in public schools. But the 9th Circuit’s ruling is based on a premise that relies more on political correctness than scientific fact.
Without questioning science, biology, psychology, or ethics to be sure that a “transgender person who was assigned the opposite biological sex at birth” should be using the bathroom of that person’s choosing, judges accept as reality what might be, in fact, a pleasant but distorted fiction.
The last significant time a court did this was the Supreme Court, on the issue of abortion. Even though multiple disciplines—religion, science, philosophy, and bioethics—all offered counter arguments against legalizing the murder of an unborn baby, justices accepted without question the premise that a fetus wasn’t really a baby with separate rights.
Although this false premise made the Supreme Court’s legalization of abortion in Roe v. Wade somewhat easier, it never has made logical sense—as the late Justice Antonin Scalia often alluded to—and the juxtaposition has made abortion sacrosanct to progressives.
It’s hard to pinpoint exactly why this is happening with transgender issues and why it happened similarly with abortion.
Perhaps the existence of a large and vocal lobby behind the cause—particularly when groupthink is prevalent and political correctness already has begun to be the ruling order of the day—aids in helping a court to co-opt logic, reason, and cynicism, and to accept a premise that’s as confusing as it is strange.
In other controversial areas—gun rights, free speech, and especially religion—the judiciary analyzes almost to an extreme the language, details, and motives of the case at hand to ensure the constitutionality of the decision holds.
A simple review of the oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission would prove this point.
That Supreme Court case in 2017 included a robust debate over whether designing and baking custom cakes was protected speech—and specifically making such cakes at the request of customers with a certain intention or message, such as to celebrate a same-sex marriage or an occult being.
If courts continue to accept the transgender debate on its surface, as one of privacy rights versus bathroom rights as opposed to extricating the root of the issue—while promoting a progressive, politically correct agenda—these rulings will be as legally and culturally harmful as abortion turned out to be.