Amicus Curiae Brief — R.G. & G.R. Harris Funeral Homes, Inc., Petitioner v. Equal Employment Opportunity Commission, et al.

No. 18-107

In the

Supreme Court of the United States

__________________

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

Petitioner,

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent,

and AIMEE STEPHENS,

Respondent-Intervenor.

__________________

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

__________________

BRIEF OF AMICI CURIAE FAMILY POLICY

GROUPS IN SUPPORT OF PETITIONER

__________________

JONATHAN R. WHITEHEAD

Counsel of Record

LAW OFFICES OF

JONATHAN R. WHITEHEAD LLC

229 SE Douglas Street, Ste. 210

Lee’s Summit, MO 64063

(816) 398-8305

jon@whiteheadlawllc.com

Attorney for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES .......................................iii

INTERESTS OF AMICI .............................................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 1

ARGUMENT ................................................................ 3

I. HOLDING THAT TRANSGENDER STATUS IS MERELY A

MATTER OF SEX OR SEX STEREOTYPING UNDER TITLE

VII WOULD INTERFERE WITH PARENTS’ INTERESTS

CURRENTLY PROTECTED UNDER TITLE IX. ............... 3

A. TITLE VII AND TITLE IX BOTH PROHIBIT

DISCRIMINATION BASED ON “SEX.” ............................ 3

B. TITLE IX PROTECTS THE RIGHTS OF SCHOOLS AND

THE INTERESTS OF PARENTS TO HAVE “SINGLE SEX”

FACILITIES AND PROGRAMS. ..................................... 4

C. TITLE IX WOULD NO LONGER PROTECT THE RIGHTS

OF SCHOOLS AND PARENTS TO AGREE TO HAVE

“SINGLE SEX” FACILITIES AND PROGRAMS AS

DETERMINED BY NATAL SEX. .................................... 5

II. DECIDING THAT TRANSGENDER STATUS IS MERELY A

MATTER OF SEX OR SEX STEREOTYPING UNDER TITLE

VII WOULD INTERFERE WITH PARENTS’ RIGHTS IN

THE MEDICAL CARE OF THEIR CHILDREN. ................. 6

A. GENDER IDENTITY IS NOT FIXED IN ALL CHILDREN

........................................................................... 7

ii

B. CONVERSION THERAPY BANS INHIBIT EFFORTS TO

ENCOURAGE NATAL SEX ACCEPTANCE. ................ 9

C. PRESSURE TO AVOID “REPARATIVE THERAPY” AND

UNPROVEN “SUICIDALITY” CLAIMS CAN LEAD TO

OVERRIDING PARENTS. ...................................... 10

III.DECIDING THAT TRANSGENDER STATUS IS MERELY A

MATTER OF SEX OR SEX STEREOTYPING UNDER TITLE

VII WOULD DEPRIVE CHILDREN OF PARENTAL

INVOLVEMENT IN OTHER WAYS, INCLUDING THE

RIGHT TO CUSTODY AND PARENTAL NOTIFICATION.. 14

A. RIGHT TO CUSTODY ................................................ 14

B. RIGHT TO FOSTER PARENT ..................................... 18

C. RIGHT TO PARENTAL NOTIFICATION ...................... 20

D. RIGHT TO FREE SPEECH ......................................... 22

CONCLUSION .......................................................... 25

APPENDIX

COMPLETE LIST OF AMICI CURIAE ........... Appx 1

iii

TABLE OF AUTHORITIES

Cases

A.B. v. C.D. and E.F., 2019 B.C.S.C. 604 ..... 22, 24, 25

A.B. v. C.D., et al., 2019 B.C.S.C. 254 ....................... 22

EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc.,

884 F.3d 560 (6th Cir. 2018) ................................ 2, 5

In re: JNS, No. F17-334 X (Hamilton County, Ohio)

.................................................................... 14, 15, 16

Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir.

2007) ......................................................................... 3

Meyer v. Nebraska, 262 U.S. 390 (1923) ..................... 3

Parham v. J. R., 442 U.S. 584 (1979) ......................... 6

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ......... 3

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .... 1

Troxel v. Granville, 530 U.S. 57 (2000)....................... 3

United States v. Davis, 139 S.Ct. 2319 (2019) ............ 1

Wisconsin v. Yoder, 406 U.S. 205 (1972) .................... 3

Statutes

20 U.S.C.A. § 1681 ....................................................... 3

20 U.S.C.A. § 1681(a)(5) .............................................. 4

iv

20 U.S.C.A. § 1681(a)(6) .............................................. 4

20 U.S.C.A. § 1681(a)(7) .............................................. 4

20 U.S.C.A. § 1681(a)(8) .............................................. 5

Md. Code Ann., Health Occ. § 1-212.1 ...................... 10

Md. Code Ann., Health Occ. § 1-212.1(a)(2) ............. 10

Other Authorities

ACLU, Open Letter to Principals and

Superintendents, December 7, 2015 ................ 21, 22

Asaf Orr and Joel Baum, SCHOOLS IN TRANSITION: A

GUIDE FOR SUPPORTING TRANSGENDER STUDENTS IN

K-12 SCHOOLS (2015) ............................................. 21

BLACK’S LAW DICTIONARY (9th ed. 2009)..................... 6

Chloe Chaplain, Christian Couple blocked from

adopting foster children amid ‘gay parents’ row,

November 6, 2016 ............................................ 19, 20

Douglas Quan, Who Gets to Decide When a 14-year

Old Wants to Change Gender?, NATIONAL POST,

January 18, 2019.................................................... 23

Eric Vilain and J. Michael Bailey, What Should You

Do If Your Son Says He’s a Girl? L.A. Times, May

21, 2015 ................................................................ 7, 8

v

J.R. Perry and E.R. Green, Safe & Respected: Policy,

Best Practices & Guidance for Serving Transgender

& Gender Non-Conforming Children and Youth

Involved in the Child Welfare, Detention, and

Juvenile Justice Systems (2014) ...................... 18, 19

Jay Keck, My daughter thinks she’s transgender. Her

public school undermined my efforts to help her,

USA TODAY, August 13, 2019 .................... 20, 21, 22

Kevin Grasha, Prosecutor: Parents’ Refusal of

Transgender Treatment Made Teen Suicidal,”

CINCINNATI ENQUIRER, Jan 26, 2018, at

https://www.cincinnati.com/story/news/2018/

01/26/prosecutor-parent-told-transgender-teen-hegoing-hell/1071010001/ .................................... 14, 15

Lisa Littman Correction: Parent reports of

adolescents and young adults perceived to show

signs of a rapid onset of gender dysphoria.” PLoS

ONE 14(3): e0214157.

https://doi.org/10.1371/journal.pone.0214157 ....... 11

Lisa Littman(2018) Parent reports of adolescents and

young adults perceived to show signs of a rapid

onset of gender dysphoria. PLoS ONE 13(8):

e0202330.https://doi.org/10.1371/journal.pone.0202

33 .......................................................... 11, 12, 13, 14

NCLP, Transgender Youth Project: Family

http://www.nclrights.org/transgender-youthproject-family/ ........................................................ 17

vi

Paige Parsons, Christian Couple say efforts to adopt

rejected over their views on sexuality, EDMONTON

JOURNAL, November 8, 2017 .................................. 19

Vermont Department for Children and Families,

Policy 76 in FAMILY SERVICE POLICY MANUAL 16, 17

World Professional Association for Transgender

Health, STANDARDS OF CARE FOR THE HEALTH OF

TRANSSEXUAL, TRANSGENDER, AND GENDERNONCONFORMING PEOPLE, 7th ed. 11. (2012) ....... 8, 9

Regulations

34 C.F.R. § 106.32 ........................................................ 4

34 C.F.R. § 106.33 ........................................................ 4

34 C.F.R. § 106.34 .................................................... 4, 5

34 C.F.R. § 106.34(b) ................................................... 4

34 C.F.R. § 106.34(c) .................................................... 4

34 C.F.R. § 106.41 ........................................................ 5

INTERESTS OF AMICI1

Your amici are groups dedicated to considering

the effect of government policy on family. Parents

have a fundamental right to teach and bring up their

children. A decision by this Court that “transgender

status” is merely a byword for “sex,” or that the sexes

are a kind of “stereotyping,” will limit and unsettle

parents’ fundamental rights in new and dangerous

ways.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This Court will decide whether a claim to be

“transgender” makes an employer’s even-handed policies based on natal sex a form of “sex discrimination.”

It will also decide whether “gender” is a set of sexual

stereotypes under Price Waterhouse v. Hopkins, 490

U.S. 228 (1989).

As noted in the Petition for Certiorari, the Sixth

Circuit treats sex — a person’s status as male or female based on reproductive anatomy and physiology

— as an illicit, ungrounded stereotype. Pet. at 11. And

once sex itself is an ungrounded stereotype, it becomes

impossible to apply the sex-specific policies that the

law allows, at least against any objector. Id. Under

this reading, a law meant to protect the sexes from

bias would make the claim to be of the male or female

sex vague and unintelligible. But see United States v.

Davis, 139 S.Ct. 2319 (2019)(addressing when laws

1 No one other than amici and their counsel authored any part of

this brief or made a monetary contribution to fund its preparation

or submission. All parties have consented to its filing in communications on file with the Clerk or provided a written consent.

2

are unconstitutionally void for vagueness). It would

subject pre-political definitions and rights to the veto

of any individual desiring to be within a class.

The case here involves no children. But it asks

the Court to declare, for the first time, that sex and

gender – and terms like ‘girls’ and ‘boys’ – lack any

“fixed external referent.” EEOC v. R.G. &. G.R. Harris

Funeral Homes, Inc., 884 F.3d 560, 575 n. 4 (6th Cir.

2018). Sex would be unmoored from testable ideas of

biology and law. Instead, laws that are supposed to

help parents — who care for boys and girls — would

turn into Kafkaesque traps. In one fell swoop,

“mother,” “father,” “son,” and “daughter” would lose

their legal meanings.

Compassion for those experiencing discomfort

with a male or female body is not a reason to overthrow pre-political, biological ideas of male or female

bodies. The Sixth Circuit’s rule would alter and undermine parents’ fundamental rights.

Section I shows how such a decision would upset and limit parental rights in educational and school

activities regulated by Title IX, with special reference

to areas beyond athletics.

Section II addresses why treating transgender

status as a matter of “sex” or “sex stereotyping” may

limit fundamental parental rights with respect to the

medical care of children.

Section III explains why treating transgender

status as merely an expression of sex or sex stereotyping may limit fundamental parental rights in other aspects.

3

ARGUMENT

I. HOLDING THAT TRANSGENDER STATUS IS MERELY

A MATTER OF SEX OR SEX STEREOTYPING UNDER

TITLE VII WOULD

INTERFERE WITH PARENTS’

INTERESTS CURRENTLY PROTECTED UNDER TITLE

IX.

The interest of parents in the care, custody, and

control of their children “is perhaps the oldest of the

fundamental liberty interests recognized by this

Court,” Troxel v. Granville, 530 U.S. 57, 65 (2000)(plurality), citing Meyer v. Nebraska, 262 U.S. 390, 399

(1923) and Pierce v. Society of Sisters, 268 U.S. 510,

534–535 (1925).

“This primary role of the parents in the upbringing

of their children is now established beyond debate as

an enduring American tradition.” Wisconsin v. Yoder,

406 U.S. 205, 232 (1972).

A. TITLE VII AND TITLE IX BOTH PROHIBIT

DISCRIMINATION BASED ON “SEX.”

Like Title VII, Title IX prohibits certain discrimination based on sex: “[n]o person in the United

States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected

to discrimination under any education program or activity receiving Federal financial assistance.” 20

U.S.C.A. § 1681 (emphasis added).

Lower courts explicitly draw from Title VII

caselaw when evaluating Title IX claims. See, e.g.,

Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir.

2007). Therefore, this Court’s decisions concerning the

definitions of “sex” and “gender identity” will change

interpretations of corresponding terms in Title IX.

4

B. TITLE IX PROTECTS THE RIGHTS OF SCHOOLS

AND THE INTERESTS OF PARENTS TO HAVE

“SINGLE SEX” FACILITIES AND PROGRAMS.

Title IX protects schools that choose to have

some facilities differentiated by sex. These laws also

protect legitimate parent interests; parents can organize or choose educational institutions with such facilities. These protections include:

•

Single-sex, nonvocational classes; 34

C.F.R. § 106.34(b).

•

Single sex charter schools; 34 C.F.R.

§ 106.34(c).

•

Human sexuality classes; 34 C.F.R.

§ 106.34.

•

Toilets; 34 C.F.R. § 106.33.

•

Locker rooms; 34 C.F.R. § 106.33.

•

Showers; 34 C.F.R. § 106.33.

•

Living/sleeping accommodations (dormitories); 34 C.F.R. § 106.32.

•

Traditional admissions

U.S.C.A. § 1681(a)(5).

policies;

20

•

Social fraternities or

U.S.C.A. § 1681(a)(6).

sororities;

20

•

Voluntary youth service organizations;

20 U.S.C.A. § 1681(a)(6).

•

Boy or Girl conferences; 20 U.S.C.A.

§ 1681(a)(7).

5

•

Father-son or mother-daughter activities; 20 U.S.C.A. § 1681(a)(8).

•

Physical education activities involving

bodily contact; 34 C.F.R. § 106.34.

•

Men’s and Women’s athletics. 34 C.F.R.

§ 106.41.

C. TITLE IX WOULD NO LONGER PROTECT THE

RIGHTS

OF

SCHOOLS

AND

PARENTS

TO

AGREE TO HAVE “SINGLE SEX” FACILITIES

AND PROGRAMS AS DETERMINED BY NATAL

SEX.

If sex has no external referent in biology as held

below at EEOC v. R.G. &. G.R. Harris Funeral Homes,

Inc., 884 F.3d 560, n. 4 (6th Cir. 2018) a mother cannot

select an all-girl or all-boys educational experience for

their child, even though that experience is supposedly

a choice protected by law. “All-girls” and “all-boys”

would have no externally agreeable meaning. A parent

could make major life decisions to give their child access to this choice, only to find it illusory. No parents

could reasonably agree with others about what it

means to be a girl or boy; they could merely agree to

mutually accept each child as a boy or girl.

Unless sex and gender have external referents

in biology, a father cannot send a child to summer

camp confident that the camp can separate sleeping

accommodations by gender. The girl’s dorm would not

be defined by an external referent; girls are those who

mutually accept each other as girls.

Indeed, unless sex and gender have external

referents in biology or law, neither father nor mother

6

has a shared meaning. Black’s says a “mother” is a

“woman who has given birth to, provided the egg for,

or legally adopted a child” – a term from before the 12th

century. BLACK’S LAW DICTIONARY 1106 (9th ed. 2009).

A “father” is a “male parent.” Id. at 682. But if

“woman” and “man,” “female and male,” are unfixed

and stereotypical, one can only ever be sure that one

is a parent.

Under the meaning of “sex” suggested by the 6th

Circuit, mothers and fathers will lose the right to

choose long-protected educational experiences for

their boys and girls.

II. DECIDING THAT TRANSGENDER STATUS IS MERELY

A MATTER OF SEX OR SEX STEREOTYPING UNDER

TITLE VII WOULD

INTERFERE WITH PARENTS’

RIGHTS IN THE MEDICAL CARE OF THEIR CHILDREN.

Other aspects of parenting would be impacted

by the 6th Circuit’s rule, as well.

For example, if sex lacks an external referent in

biology or law, consider the impact to parents’ right to

direct their child’s healthcare. This Court observed

that our family law rests on a presumption that “parents possess what a child lacks in maturity, experience, and capacity for judgment required for making

life’s difficult decisions.” Parham v. J. R., 442 U.S.

584, 602 (1979). The “natural bonds of affection” more

reliably lead to decisions in the best interests of the

child. Id. A parent’s healthcare decisions will usually

control, even in questions of hospitalization and surgery. Id. at 604.

7

Yet a growing number of parents report losing

this presumption in practice. Doctors face legal and

activist pressure to “affirm” children’s claims, without

considering whether a child might accept an identity

consistent with their male or female sex.

A. GENDER

IDENTITY

IS

NOT

FIXED

IN

ALL

CHILDREN

In 2015, Eric Vilain and J. Michael Bailey published an op-ed in the Los Angeles Times, asking

“[w]hat should you do if your son says he’s a girl?” Eric

Vilain and J. Michael Bailey, What Should You Do If

Your Son Says He’s a Girl? L.A. Times, May 21, 2015

at https://www.latimes.com/opinion/op-ed/la-oe-vilaintransgender-parents-20150521-story.html) (last accessed August 16, 2019). Vilain is director of UCLA’s

Center for Gender-Based Biology, and Bailey is a professor at Northwestern University. Id.

They hypothesized a five-year old boy who tells

his parents that he wants to be a girl. Should the parents affirm the child’s internal referent? Or encourage

acceptance of his birth gender? Id.

Vilain and Bailey were frank: “As scientists who

study gender and sexuality, we can tell you confidently: At this point no one knows what is better

for your son … we don’t yet know whether it’s

better to encourage adjustment or persistence.”

Id. (emphasis added).

Vilain and Bailey went on to criticize a statement by the then-Obama White House that decried

“conversion therapy” for sexual orientation and sex

identity. Id. But Vilain and Bailey said the science

8

shows these to be two different conditions. They believed “banning all therapists from helping families

trying to alleviate children’s gender dysphoria would

be premature, a triumph of ideology over science.” Id.

Gender dysphoria during childhood does not inevitably continue into adulthood. The vast majority of

research backs Vilain and Bailey’s position. According

to the World Professional Association for Transgender

Health’s standards of care, a supermajority of prepubescent children seeking help from a clinic will not

have dysphoria in adulthood:

Rather, in follow-up studies of prepubertal children (mainly boys) who were referred to clinics

for assessment of gender dysphoria, the dysphoria persisted into adulthood for only 6–23% of

children (Cohen-Kettenis, 2001; Zucker & Bradley, 1995). Boys in these studies were more

likely to identify as gay in adulthood than as

transgender (Green, 1987; Money & Russo,

1979; Zucker & Bradley, 1995; Zuger, 1984).

Newer studies, also including girls, showed a

12–27% persistence rate of gender dysphoria

into adulthood (Drummond, Bradley, PetersonBadali, & Zucker, 2008; Wallien & Cohen-Kettenis, 2008).

In contrast, the persistence of gender dysphoria

into adulthood appears to be much higher for

adolescents. No formal prospective studies exist.

WPATH, STANDARDS OF CARE FOR THE HEALTH OF

TRANSSEXUAL,

TRANSGENDER,

AND

GENDER-

9

NONCONFORMING PEOPLE, 7th ed. 11. (2012) (available

at

https://www.wpath.org/media/cms/Documents/SOC%20v7/Standards%20of%20Care_V7%20F

ull%20Book_English.pdf) (Last accessed August 11,

2019).

Thus, the studies show a full 77% to 94% of prepubertal boys who are actually referred to clinics for

dysphoria will not be dysphoric in adulthood. Similarly, the current best evidence is that, including girls,

73% to 88% of children will “desist” in any gender dysphoria by adulthood. While WPATH states that persistence is “much higher” for adolescents, it admits

that no formal prospective studies exist. Id. The claim

in the standards are based on a single, retrospective

study of just 70 children. Id.

B. CONVERSION THERAPY BANS INHIBIT EFFORTS

TO ENCOURAGE NATAL SEX ACCEPTANCE.

Despite Vilain and Bailey’s cautious, scientific

approach, the literature issued by activist groups

shows overwhelming pressure to treat gender identity

as immutable, to satisfy the idea that professionals

have treated the LGBTQ community properly.

The desire to treat all forms of sexuality, gender

expression, and gender identity as fixed has led to demands to ban “conversion therapy.” Yet repeated scientific studies show gender expression is not fixed. In

those cases, it is not immoral to ask whether a female

body can be accepted as fully dignified, or whether a

male body can be accepted without disgust, discomfort, or dysphoria. This is not to suggest that dysphoria is made-up; rather, science seems to tell us that

some dysphoria changes or resolves. And that fact of

change is especially true among children.

10

The human internal compass does not reliably

point to a true north. Part of the maturity, experience,

and capacity for judgment that accrues to parents is

the hard-earned wisdom that ideals change. Some individuals may never experience a sense of acceptance

about their natal male or female body. But many children with dysphoria do come to accept their bodies.

Parents can help children realize that dignity and human worth accrues to each human body, male or female.

However, a rule like the one proposed by the 6th

Circuit, which makes the internal compass the only

factor in determining legal sex, would undermine parents and professionals as they seek to explore whether

a particular child’s dysphoria may resolve.

C. PRESSURE TO AVOID “REPARATIVE THERAPY”

AND UNPROVEN “SUICIDALITY” CLAIMS CAN

LEAD TO OVERRIDING PARENTS.

Are medical professionals free to give parents

and children unbiased advice on these issues, as Professors Vilain and Bailey did in 2015? Increasingly,

the answer is no.

Nineteen states have enacted “conversion therapy” bans. In many cases the bans include language

banning therapy targeted at acceptance of male or female sex. For example, Maryland’s law prohibits “any

effort to … change gender expression.” Md. Code

Ann., Health Occ. § 1-212.1. It allows “coping,” but

only when it does not “change gender identity.” Md.

Code Ann., Health Occ. § 1-212.1(a)(2).

11

But as Vilain and Bailey noted, a five-year old

girl who says she is a boy might desist. Most similarlysituated children do desist. Professionals in such

states, however, cannot legally suggest the five-year

old girl might benefit from therapy that would encourage accepting the fundamental goodness of a female

identity.

This legal pressure, combined with uncertain

medical literature on the issues, works to deprive parents of their right to understand and direct their children’s medical care.

A recent study highlights these concerns. Assistant Professor Lisa Littman, of Brown University’s

School of Public Health, published a descriptive study

proposing a clinical phenomenon she termed “Rapid

Onset Gender Dysphoria” (ROGD).2 The study hypothesizes that some gender dysphoria is a phenomenon and that social influences, parent-child conflict,

and maladaptive coping mechanisms may be contributing factors for some individuals. It collected parent

reports, which sometimes described traumatized

youth repeating online information to overeager

healthcare providers.

2 Lisa Littman (2018) Parent reports of adolescents and young

adults perceived to show signs of a rapid onset of gender dysphoria. PLoS ONE 13(8): e0202330. https://doi.org/10.1371/journal.pone.020233; PLoS ONE conducted an editorial review, and

issued more detailed information about the processes, but left the

Results section unchanged. See Lisa Littman, Correction: Parent

reports of adolescents and young adults perceived to show signs of

a rapid onset of gender dysphoria.” PLoS ONE 14(3): e0214157.

https://doi.org/10.1371/journal.pone.0214157 (Last accessed August 10, 2019).

12

Littman published short summaries to show

representative responses. Many included social

trauma. For example, one respondent said:

“A 12-year-old natal female was bullied specifically for going through early puberty and the responding parent wrote ‘as a result she said she

felt fat and hated her breasts.’ She learned

online that hating your breasts is a sign of being

transgender.”

Another respondent:

“a 14-year-old natal female and three of her natal female friends were taking group lessons together with a very popular coach. The coach

came out as transgender, and within one year,

all four students announced they were also

transgender.”

One of the major themes of bullying was animosity toward those who are heterosexual or cisgender. Id. at 17. “The groups targeted for mocking by

the friend groups are often called “heterosexual….” Id.

One participant explained, “[t]hey are constantly putting down straight, white people for being privileged,

dumb and boring…” Id. Another elaborated: “[i]n general, cis-gendered people are considered evil and unsupportive, regardless of their actual views on the

topic.” Id. at 17.

When asked what sources were influential for

these children, 63.6% identified “YouTube transition

videos.” Id. at 20. 61% identified “Tumblr,” a microblogging site. Id. 42.9% identified an online group

of friends. Id. One parent wrote: “we feel she was

highly influenced by the ‘if you are even questioning

13

your gender – you are probably transgender’ philosophy.” Id. at 20.

Some parents also reported that their children

seemed to treat online information as more important

or reliable than mainstream doctors and psychologists. Id. at 23. 16% of parents reported that their

child defended the practice of lying or withholding information from therapists or doctors to obtain hormone therapy. Id.

Finally, parents reported what seemed to be a

clinical rush to judgment. Of those parents who knew

the content of their child’s visit, 23.8% said hormone

therapy was offered on the first visit. Id. at 24. One

parent reported “[w]hen we phoned the clinic, the doctor was hostile to us, told us to mind our own business.

Our family doctor tried to reach our son’s new doctor,

but the trans doctor refused to speak with her.” Id. at

25.

Perhaps worse, 84% of the parents were reasonably sure or positive that their child had misrepresented or omitted parts of their history. Id. at 25.

Parents also reported that children had access to

online communities that told them what to say to obtain a diagnosis. Said one parent: “[a]t [the] first visit,

[my] daughter’s dialogue was well-rehearsed, fabricated stories about her life told to the [the] outcome

she desired. She parroted people from the internet.”

Id. at 27. Said another: “I overhead my son boasting

on the phone to his older brother that ‘the doc swallowed everything I said hook, line and sinker ….” Id.

14

Littman clarified that her study is a proposed

phenomenon meriting more study. It is not “proof” of

a distinct kind of dysphoria. “It is unlikely that friends

and the internet can make people transgender. However, it is plausible that the following can be initiated,

magnified, spread, and maintained via the mechanisms of social and peer contagion: (1) the belief that

non-specific symptoms…should be perceived as gender dysphoria and their presence as proof of being

transgender; (2) the belief that the only path to happiness is transition; and (3) the belief that anyone who

disagrees with the self-assessment … is transphobic,

abusive, and should be cut out of one’s life.” Id. at 32.

III.

DECIDING THAT TRANSGENDER STATUS IS

MERELY

A

MATTER

STEREOTYPING UNDER

DEPRIVE

OF

SEX

OR

TITLE VII

CHILDREN

OF

SEX

WOULD

PARENTAL

INVOLVEMENT IN OTHER WAYS, INCLUDING

THE

RIGHT

TO

CUSTODY

AND

PARENTAL

NOTIFICATION.

A. RIGHT TO CUSTODY

The idea that sex and gender lack any external

referent in biology is used to deprive parents of their

ultimate right: the right to continued custody of their

children.

For example, in Ohio, In re: JNS, No. F17-334

X (Hamilton County, Ohio), Hamilton County Job &

Family Services petitioned for temporary custody of

JNS. JNS had contacted a crisis hotline, claiming that

his parents had “told him to kill himself.” Kevin

Grasha, Prosecutor: Parents’ Refusal of Transgender

Treatment Made Teen Suicidal,” CINCINNATI

15

ENQUIRER, Jan 26, 2018, at https://www.cincinnati.com/story/news/2018/01/26/prosecutor-parenttold-transgender-teen-he-going-hell/1071010001/ (last

accessed August 11, 2019).

However, the court found that it was the parents who had brought the child to Cincinnati Children’s Hospital for psychiatric treatment of anxiety

and depression. The parents were also financially supporting the child’s talk therapy. According to the

court, “[t]he parents sough appropriate mental health

treatment when their child’s generalized anxiety and

depression reached the point that hospitalization became necessary.” In re: JNS, supra, at 2.3

The court was further concerned that the child’s

diagnosis “rather quickly” become one of gender dysphoria. Id. It noted a lack of reliable data: “[t]he entire

field of gender identity and non-conforming gender

treatment is evolving rapidly and there is a surprising

lack of definitive clinical study available to determine

the success of different treatment modalities.” Id.

The court then expressed concern about the role

of the hospital: “It is a concern for the Court that the

statistic presented by … the Director of the

Transgender Program in her testimony is that 100%

of the patients seen by Children’s Hospital Clinic who

3 A copy of the In re: JNS order has been republished at several

sites, including https://www.wcpo.com/news/local-news/hamilton-county/cincinnati/transgender-boy-from-hamilton-countywins-right-to-transition-before-college (last accessed August 18,

2019).

16

present for care are considered to be appropriate candidates for continued gender treatment.” Id.

The court went on to address the issue of suicidal ideation. While the child had expressed “suicidal

ideation,” and the parents had stipulated to such ideation, the court found the actual medical records

showed the child was not at risk of suicide. The court

said it would not let claims of suicidal ideation govern

the disposition of cases before it. Id. at 3.

However, the end result of JNS is that caring

and supportive parents were pressured to give up

their legal rights by doctors and advocates.

This situation will repeat itself, at least in those

states that have explicitly instructed child welfare

workers to treat non-affirming homes (homes that do

not immediately affirm) as a threat to child wellbeing.

A decision by this Court that gender is merely a set of

stereotypes would encourage these efforts to treat parental involvement as bigoted or unreasonable.

For example, in Vermont, the state’s policy is

that in the area of LGBTTQQIAPP4 identity, “Division staff will affirm the … identity of all children to

create a supportive environment.” Vermont Department for Children and Families, Policy 76 in FAMILY

SERVICE

POLICY

MANUAL,

at

3

(https://dcf.vermont.gov/sites/dcf/files/FSD/Policies/76

.pdf)(last accessed August 11, 2019). “Division staff

shall not attempt to persuade a[ transgender] individ-

4 “lesbian, gay, bisexual, trans, two spirit, queer, questioning, in-

tersex, asexual, pansexual, polysexual”

17

ual to reject or modify their … gender identity, or gender expression. Staff will not impose personal … beliefs onto children and youth served by the division.”

Id. The policy does not require a professional assessment, to determine whether persistence is likely.

Instead, the Division says the caregiver’s beliefs

should be analyzed for risks and dangers. It tells social

workers to ask if the caregiver “has not, will not, or is

unable to provide care … necessary to protect the child

from harm, including self-harm.” Id. at 4. It later suggests that supportive families always “support children’s identities even if it feels uncomfortable.” Any

rejection “significantly impacts” health risks, including self-harm and suicide. Id. at Appx. II.

Thus, Vermont’s manual leaves little room to

question whether a medical professional has assessed

the likelihood of persistence or desistence. Instead,

children who “cannot safely remain in their homes”

will be placed in an “affirming” transgender environment – regardless of the child’s age, mental health, or

medical history.

These state agency decisions are being driven

by sexual orientation and gender identity advocacy

groups. For example, the National Center for Lesbian

Parents has organized a section to represent children,

or to take the side of affirming parents in child custody

cases. See NCLP, Transgender Youth Project: Family

http://www.nclrights.org/transgender-youth-projectfamily/ (last accessed August 11, 2019).

18

B. RIGHT TO FOSTER PARENT

Well-known LGBTQ advocates now ask government agencies to screen foster and adoptive parents

for a willingness affirm even hypothetical identities.

The Human Rights Campaign’s “All Children – All

Families” certification program requires foster and

adoption groups to tell foster parents that “they may

not even be aware of their [Sexual Orientation or Gender Identity] at the time of placement. Therefore, it is

possible that any child or youth that a parent adopts

or fosters, could ultimately ‘come out’ one day.”

But, of course, this advice glosses over the medical

consensus that up to 80 percent of preadolescent children who express gender nonconformity may desist.

HRC’s advocacy of Gay, Lesbian, and Transgender

identities has pushed them to lump these statuses together, ignoring the reality that Sexual Orientation

and Gender Identity are two different issues, requiring different care.

For example, New York City’s Administration for

Children’s Services’ Office of LGBTQ Policy and Practice’s manual suggests foster parents cannot use their

religious beliefs when foster parenting: “[d]o not use

personal, organizational, and/or religious beliefs to

justify discrimination … a [transgender / gender nonconforming] person’s gender identity or gender expression. … Furthermore, the Children’s Services LGBTQ

Policy prohibits staff, providers, volunteers, and foster

parents from using these beliefs to negatively impact

TGNC children, youth, and adults.” J.R. Perry and

E.R. Green, Safe & Respected: Policy, Best Practices &

Guidance for Serving Transgender & Gender NonConforming Children and Youth Involved in the Child

19

Welfare, Detention, and Juvenile Justice Systems

(2014) (available at https://casala.org/wp-content/uploads/2016/01/Safe-and-Respected_06_23_2014_

WEB.pdf) (accessed August 11, 2019).

This kind of policy, advocated by HRC and others,

has led to reports of religious parents being blocked

from fostering or adopting.

In Edmonton, Canada, an evangelical Christian

couple alleged that they were at first recommended as

adoptive parents. But then the parents were told their

beliefs were “contrary to the ‘official position of the Alberta government,’” and revoked. Paige Parsons,

Christian Couple say efforts to adopt rejected over their

views on sexuality, EDMONTON JOURNAL, November 8,

2017, at https://edmontonjournal.com/news/localnews/christian-couple-say-efforts-to-adopt-rejectedover-their-views-on-sexuality (last accessed August

11, 2019).

Likewise, in the United Kingdom, a government

agency blocked an evangelical Christian couple from

adopting two children they were currently fostering.

The couple claims they had expressed interest in

adopting two children in their care. A social worker

told the parents that a gay couple had expressed interest in the children. The couple expressed their belief

that the children would benefit from a “mummy and

daddy.” The adoption council held that these “views

could be detrimental to the long-term needs of the children.” The couple’s adoption request was refused, and

social workers warned their foster status could be put

up for review. See Chloe Chaplain, Christian Couple

blocked from adopting foster children amid ‘gay par-

20

ents’ row, November 6, 2016, at https://www.standard.co.uk/news/uk/christian-couple-blocked-fromadopting-foster-children-amid-gay-parents-rowa3388456.html (last accessed August 11, 2019).

C. RIGHT TO PARENTAL NOTIFICATION

As in the area of medical care, parents increasingly find that schools have adopted policies that prohibit affirming natal sex. And many schools have

adopted policies that keep parents in the dark about

their child’s situation.

For example, in a recent USA TODAY op-ed,

Jay Keck reports that his daughter on the autism

spectrum “came out” as transgender to her teachers at

school. Jay Keck, My daughter thinks she’s

transgender. Her public school undermined my efforts

to help her, USA TODAY, August 13, 2019 (available at

https://www.usatoday.com/story/opinion/voices/2019/

08/12/transgender-daughter-school-undermines-parents-column/1546527001/). Keck’s daughter was on

the autism spectrum and had experienced social challenges. Rather than contact Keck and his wife, the

school immediately started referring to her with a

masculine name, using male pronouns, and providing

access to a gender-neutral restroom.

At the next IEP meeting, Keck asked staff to

use the child’s legal name. The social worker present

confirmed their right to make such a request. School

staff, however, ignored the parents’ request. The district’s assistant superintendent blamed “the law,” but

there was no law. The superintendent was apparently

referring to a 2016 “Dear Colleague” letter from the

21

Obama administration, which was later enjoined and

rescinded. Id.

This has not stopped the National Education

Association from encouraging automatic acceptance of

gender claims by students. “The school environment

may be the only place a transgender student feels safe

enough to be themselves,” says the NEA’s “Schools in

Transition” manual, produced with the help of HRC

and ACLU. Asaf Orr and Joel Baum, SCHOOLS IN

TRANSITION: A GUIDE FOR SUPPORTING TRANSGENDER

STUDENTS IN K-12 SCHOOLS (2015), http://assets2.hrc.org/files/assets/resources/Schools-In-Transition.pdf Even when a natal male may be sleeping in

the same room as females, the guide advises non-disclosure to other students and parents. Id. at 27.

Keck also says his daughter’s counselor refuses

to give him written answers or advice. She is willing

to make statements off the record, apparently, but

fears professional charges if she violates Illinois’ “conversion therapy” ban. Illinois’ “conversion therapy”

law prohibits therapists from questioning the child’s

professed gender identity, or even exploring whether

the child would be comfortable with their sex. Keck,

supra.

Keck notes that the American Civil Liberties

Union has sent schools letters asserting that “it is

against the law to disclose a student’s sexual orientation or gender identity even to a student’s parents or

other school administrators.” The ACLU claims this

right is a constitutional right to privacy, and not, as

some might expect, a rule under the Family Educational Rights and Privacy Act (FERPA). See ACLU,

22

Open Letter to Principals and Superintendents, December

7,

2015

(available

at

https://www.aclu.org/sites/default/files/field_document/privacy_open_letter_dec_2015_0.pdf) (last accessed August 12, 2019). FERPA provides parents the

right to inspect and review the child’s educational records until they are 18; it appears the ACLU alleges a

constitutional duty to get around the statute. Id.

And the ACLU’s materials tell schools that disclosing gender identity to a parent may result in suicide, physical abuse, or homelessness. Id.

Keck says his local school refused to put his

child’s legal name on their diploma. He notes that his

child plans to approach Planned Parenthood of Illinois, which now offers “Affirming Hormone Therapy”

in all 17 of its Illinois clinics, with no significant new

review of mental health. Keck, supra.

D.RIGHT TO FREE SPEECH

Finally, insisting that sex is merely self-referential can lead to infringements on parental freedom

of speech. Once gender is cast as working from “stereotypes,” and urging acceptance is linked to suicide and

self-harm, parents can be forced to carry the government approved message about the meaning of their

child’s sex.

For example, consider the recent Canadian case

of A.B. v. C.D. and E.F., et al., the subject of two decisions by the Supreme Court of British Columbia. A.B.

v. C.D., et al., 2019 B.C.S.C. 254 and A.B. v. C.D. and

E.F., 2019 B.C.S.C. 604.

23

A.B., a natal female, is called “Max” in media

coverage. “Max” realized a desire to have a masculine

body after watching a YouTube animated video in 7th

grade:

“[T]he Danish short film documents the struggles between Emilie, a transgender boy, and his

mother. The film opens in a clothing store. The

mom picks out a dress for Emilie, but Emilie

prefers military-style clothes.

‘It just kind of clicked right away,’ Max says.”

Douglas Quan, Who Gets to Decide When a 14-year Old

Wants to Change Gender?, NATIONAL POST, January

18, 2019 (https://nationalpost.com/news/canada/whogets-to-decide-when-a-14-year-old-wants-to-changegender).

Max’s father shared joint custody with Max’s

mother. When Max was taken to a local hospital for an

evaluation, Max was presented forms that clearly disclosed the uncertain outcomes of treatment: “treatment in young adolescents is a newer development,

and the long-term effects are not fully known.” Id.

Hospital staff were ready to begin hormone injections

the same day. Id. When Max’s father, who was not at

the meeting, objected to immediate changes, the hospital simply refused his objection. “[W]hile staff always strive to get parents onboard with a proposed

course of treatment, ‘under these circumstances we

are of the view that it is ultimately up to Max to give

or withhold consent to his own medical care; neither

you nor his mother can make this decision for him.’”

Id.

24

On appeal to the Supreme Court of British Columbia, that court held that the father could not talk

to the press about the case. The court also held that

the father’s speech could be “family violence,” and so

restrained:

It is declared under the Family Law Act that: …

Attempting to persuade A.B. to abandon treatment for gender dysphoria; addressing A.B. by

his birth name; referring to A.B. as a girl or

with female pronouns whether to him directly

or to third parties; shall be considered to be

family violence under s. 38 of the Family Law

Act.

2019 B.C.S.C. 604 at ¶ 10.

In an appeal of the original order, the court

went further, to prohibit AB from receiving any materials questioning what is in his best interests:

… exposing AB to videos and other materials

that question whether his gender identity is real

or the treatments he seeks are in his best interests, is an attempt to persuade AB to abandon

treatment. While those arguments may be

properly advanced in court, they are harmful

when made to AB by his father.”

Id. at ¶ 82-3 (emph. added).

The court acknowledged the father had an “interest” in free expression. But it prevented the father

from expressing doubts about the child’s treatment. “A

parent is expected to act in the best interest of the children, and so may be criticized for distributing the

Court’s reasons for judgment inappropriately, such as

25

to children and neighbours.” Id. at 60. Applying principles of “necessity and proportionality,” the court

found a protective order necessary and proportional to

protect AB from “harm.” Id. at 64.

In A.B., then, a parent has been prevented from

discussing what might be in the child’s best interest.

If the 6th Circuit’s rationale is made national law, family courts will face similar situations in the United

States. The cultural and professional pressures could

limit the speech of parents, who are sincerely driven

by the bonds of affection.

CONCLUSION

This Court recognizes that the child is not the

mere creature of the state. Parents must nurture and

direct children, to prepare [them] for additional obligations. Children are created out of sexual difference,

and parents are in a unique position to explain why

men and women are equally valued and important,

and not a matter of stereotype.

The Sixth Circuit’s blithe assertion that sex, as

a legal and scientific matter, is a set of stereotypes

without external referent, will unsettle the legal protections that allow this important work to continue.

This Court should reject the Sixth Circuit’s sweeping

attempt to redefine “sex.”

26

Respectfully submitted,

JONATHAN R. WHITEHEAD

Counsel of Record

LAW OFFICES OF

JONATHAN R. WHITEHEAD LLC

229 SE Douglas Street, Ste. 210

Lee’s Summit, MO 64063

(816) 398-8305

jon@whiteheadlawllc.com

Attorney for Amici Curiae

August 23, 2019

APPENDIX

APPENDIX

COMPLETE LIST OF AMICI CURIAE ........... Appx 1

Appx 1

APPENDIX I – COMPLETE LIST OF AMICI

CURIAE

1. Jim Minnery, President

Alaska Family Action

2. Nicole Theis, President

Delaware Family Policy Council

3. John Stemberger, President

Florida Family Policy Council

4. Eva Andrade, President

Hawaii Family Forum

5. Bob Vander Plaats, President/CEO

The FAMiLY LEADER

6. Ryan McCann, Executive Director

Indiana Family Institute

7. Kent Ostrander, Executive Director

The Family Forum

8. Gene Mills, President

Louisiana Family Foundation

9. Carroll Conley, Executive Director

Christian Civic League of Maine

10. Andrew Beckwith, President

Massachusetts Family Institute

Appx 2

11. John Helmberger, Chief Executive Officer

Minnesota Family Council

12. Karen Bowling, Executive Director

Nebraska Family Alliance

13. Shannon McGinley, Executive Director

Cornerstone Action

14. Len Deo, Founder & President

New Jersey Family Policy Council

15. Jason J. McGuire, Executive Director

New Yorkers for Constitutional Freedoms

16. John L. Rustin, President

NC Family Policy Council

17. Aaron Baer, President

Citizens for Community Values

18. Norman Woods, Executive Director

Family Heritage Alliance

19. David Fowler, President

The Family Action Council of Tennessee,

Inc.

20. Victoria Cobb, President

The Family Foundation of Virginia

Appx 3

21. Mark Miloscia, Executive Director

Family Policy Institute of Washington

22. Allen Whitt, President

The Family Council & Family Policy Institute

23. Julaine Appling, President

Wisconsin Family Council

24. Jonathan M. Saenz, Esq., President

Texas Values