Kenosha School District v. Whitaker

admin Statutory Construction, U. S. Supreme Court

In our brief, we challenged the opinion of the U.S. Court of Appeals for the Seventh Circuit, which had concluded that there was no privacy interests of other students implicated by members of the opposite sex using their restrooms.  This, we argued, rejected out of hand the long standing and universal practice of restroom separation by sex, based on nothing more than the judges’ own policy preferences.  Moreover, we argued, the court’s opinion was utterly oblivious to the numerous adverse consequences that would flow from its decision, applying not just to restrooms but to school locker rooms and showers as well, which will lead to all manner of disruption and injury to students.

Next, we argued that transgender plaintiffs often attempt to obscure the scope of the rulings they seek by alleging details of their particular case, such as a diagnosis, hormone use, and surgery. But all that is required to be “transgender” is a person’s declaration that it is so.  If the word “sex” is judicially redefined from a biological constant to include “gender,” a fluid concept that is self-defined and self-declared, the result will be to eliminate society’s delineation of persons by sex.

Additionally, we argued that the Supreme Court’s intervention in this case is necessary to reject the lower courts’ use of the preliminary injunction standard, which had granted a preliminary injunction based on nothing more than a 17-year-old girls’ claims that she might harm herself or commit suicide if not permitted to use the boys’ restrooms.  Standing, we noted, cannot be based on threats of self-harm.  Transgenderism is a mental disorder, and numerous studies have found that the vast majority of those who suffer from “gender dysphoria” also suffer from additional serious mental disorders. Many transgendered persons are also severely depressed, often to the point of being suicidal. Although some “experts” claim it is best to pander to the delusion of transgenderism, that treatment has little effect on mental health outcomes, which generally resolve without any treatment or indulgence.

Finally, we called upon the Court to restore order in the lower federal courts, bringing to an end the lawless practice of federal judicial amendment of the Civil Rights Act of 1964, to protect behaviors (such as homosexuality and transgenderism) that no one ever imagined were protected by the Act.  The lower courts apparently believe the same as retired Seventh Circuit Judge Richard Posner who said that, in deciding cases, a federal judge can just “forget about the law.”

Our brief was filed on behalf of Public Advocate of the United States, Conservative Legal Defense and Education Fund, Citizens United, Citizens United Foundation, and U.S. Justice Foundation.

Link to brief