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

Supreme Court briefAug 23, 2019

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No. 18-107

In The

Supreme Court of the United States

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

Petitioner,

EQUAL OPPORTUNITY EMPLOYMENT COMMISSION,

Respondent,

AND

AIMEE STEPHENS,

Respondent-Intervenor.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF MILITARY SPOUSES UNITED AS

AMICI CURIAE IN SUPPORT OF PETITIONER

August 23, 2019

Arthur A. Schulcz, Sr.

Chaplains’ Counsel, PLLC

21043 Honeycreeper Pl.

Leesburg, Virginia 20175

(703) 645-4010

art@chaplainscounsel.com

Counsel of Record

for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

TABLE OF CONTENTS

INTERESTS OF THE AMICUS CURIAE . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 10

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 11

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Bill of Rights Precludes Government from

Recognizing or Forcing Acceptance of a

Biological Male’s Claim He Is a Female . . . 12

The Issue Before the Court: Did

Congress Exclude Biology from Title

VII’s Definition of Sex . . . . . . . . . . . . 15

The Individual Right to Personal

Security and Privacy Was Recognized as

a Fundamental, Absolute Right of

United States Citizens When the

Constitution Was Adopted . . . . . . . . 17

The absolute right of personal

security . . . . . . . . . . . . . . . . . . 19

Inherent in the absolute right of

personal security is the right of

privacy . . . . . . . . . . . . . . . . . . . 20

II.

The right of personal security

included special protection for

women . . . . . . . . . . . . . . . . . . . 22

The Bill of Rights specifically

identified and retained some of

Blackstone’s absolute personal

rights including the inherent

right of personal privacy . . . . . 23

The Ninth Amendment retained

Blackstone’s absolute personal

rights for all American

Citizens . . . . . . . . . . . . . . . . . . 26

The Sixth Circuit’s Decision Is

Incompatible with the Bill of Rights’

Protection of Amici’s Privacy and First

Amendment Rights . . . . . . . . . . . . . . 27

The Sixth Circuit’s Decision Authorizes

Persons Suffering from a Recognized Mental

Disorder, Gender Dysphoria, to Unilaterally

Harm Others While Escaping Liability . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

iii

TABLE OF AUTHORITIES

CASES:

Byars v. United States, 273 U.S. 28 (1927) . . . . . . 16

Coolidge v. New Hampshire, 403 U.S. 443(1971) . 16

District of Columbia v. Heller, 554 US 570(2008) . 12

Ex parte Jackson, 96 U.S. 727 (1877) . . . . . . . . . . . 26

Griswold v. Connecticut, 381 U.S. 479(1965) . . 16, 26

Katz v. United States, 389 U.S. 347 (1967) . . . . . . 25

NAACP v. Button, 371 U.S. 415 (1963) . . . . . . . . . 21

NAACP v. State of Alabama, 357 U.S. 449 (1958) . 21

Parker v. Levy, 417 U.S. 733 (1974) . . . . . . . . . . . . . 1

The Downtown Soup Kitchen D/b/a Downtown Hope

Center v. Municipality of Anchorage, Anchorage

Equal Rights Commission, No. 3:18-CV-00190-SLG,

2019 WL 3769623,

(D. Alaska Aug. 9, 2019) . . . . . . . . . . . . . . . . . passim

W.Va. State Board of Ed. v. Barnette, 319 U.S. 624

(1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 28

Wooley v. Maynard, 430 U.S. 705 (1977) . . . . . . . . 21

STATUTES:

§ 533 of 2013 National Defense Authorization Act,

Public Law 112-239, 126 Stat 1727 . . . . . . . . . . . . . 8

§ 532 of 2014 National Defense Authorization Act,

Public Law 113-66,127 STAT. 672 . . . . . . . . . . . . . . 8

Title VII of the Civil Rights Act of 1964 (Pub. L.

88-352) as amended, 42 U.S.C. § 2000e . . . . . passim

Title IX of the Education Amendments of 1972,

20 U.S.C. § 1681 . . . . . . . . . . . . . . . . . . 10, 14

COMMENTARIES:

William Blackstone’s Commentaries on the English

Law (1756)

Book 1 . . . . . . . . . . . . . . . . . . . . . . 11,12, 17-19

Book 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

James Kent “Commentaries on American Law”

(1826-30) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

RULES:

S. Ct. Rule 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MISC:

AP News 1/11/19 article by Rachel D'Oro, “ Faithbased shelter fights to keep out transgender women”

found at

https://www.apnews.com/85494d367c2d4a38b1749f7

6a89f49c3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Christian Post, Transgender Bathroom Policies Have

Led to 21 Attacks on Women (2/16/17), available at

https://www.christianpost.com/news/transgenderbathroom-policies-have-led-to-21-cases-of-crimesagainst-women-family-research-council.html . . . . . 6

Diagnostic and Statistical Manual of the American

Psychiatric Association (DSM-5) . . . . . . . . . . . . . . 15

Female Erasure (Ruth Barrett ed., 2019) . . . . . . . . 3

Ryan T. Anderson, Sex Reassignment Doesn’t Work.

Here Is the Evidence, (3/9/2018)

https://www.heritage.org/gender/commentary/sex-rea

ssignment-doesnt-work-here-the-evidence . . . . . . . 7

Lawrence C. Mayer & Paul R. McHugh, “Sexuality

and Gender,” 50 The New Atlantis 1 (Fall 2016),

https://www.thenewatlantis.com/docLib/20160819_T

NA50SexualityandGender.pdf . . . . . . . . . . . . . 15, 29

NBC News report, Teacher fired for refusing to use

transgender student's pronoun (12/10/18), available

at https://www.nbcnews.com/.../teacher-firedrefusing-use-transgender-studen... . . . . . . . . . . . . . 7

The 2104 National Transgender Discrimination

Survey, found at

https://williamsinstitute.law.ucla.edu/wp-content/upl

oads/AFSP-Williams-Suicide-Report-Final.pdf . . . . 7

The J. of Clinical Endocrinology & Metabolism 3869,

3873 (2017), found at https://doi.org/10.1210/jc.201701658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Washington Examiner, Professor suing Ohio

University for forcing him to use a student's

transgender pronoun (11/24/18) available at

https://www..com/.../professor-wanted-to-use-astuden...; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

INTERESTS OF THE AMICUS CURIAE1

Military Spouses United is an informal group

of military spouses and women united by their

common concerns raised here. Audrey Rogers is their

president.

The Military is a unique community. Parker v.

Levy, 417 U.S. 733, 743 (1974) (“This Court has long

recognized that the military is, by necessity, a

specialized society separate from civilian society”).

Its members are not asked if they agree with policies

imposed upon them by their appointed and elected

authorities, policies which can have serious

consequences and often change the rules and

conditions that existed when they agreed to serve.

These concerns are particularly highlighted here

because some of Military Spouses United members

and their families are stationed overseas and must

live on U.S. bases whose facilities are necessary for

their sustainment and living. This dependence limits

their freedom to choose among differing options of

where they shop, exercise, and engage in recreational

Pursuant to Supreme Court Rule 37, all Parties have received

timely notice of Amici’s intent to file this Brief and have

consented to its filing. No Party or Party’s Counsel authored

this Brief in whole or in part, or contributed money that was

intended to fund its preparation or submission; and no person

other than the Amici Curiae, their members or their Counsel,

contributed money that was intended to fund the preparation or

submission of this Brief.

activities involving use of changing, showering or

bathroom facilities.

Military Spouses United raises five specific

concerns affecting the military community arising

from the Sixth Circuit’s conclusion it could rewrite

Title VII’s definition of “sex” to include biological

males claiming they can change their “sex” to female

by a mere assertion, a voluntary “gender reidentification.” This judicial legislation changes what

was formerly considered an immutable or

unalterable term or category, i.e., either male or

female as determined biologically at birth, into a

meaningless variable that can be changed on a

whim. This makes sex a choice rather than a

biological fact and an irrelevant and meaningless

term with no objective and/or immutable criteria.

It appears to Amici the Sixth Circuit has

modified the Constitution outside of its Article V

provisions using raw judicial power, ignoring the due

process of law. It has done this by empowering

Respondent here and others who might claim the

same rights now or later to assault and abrogate

these Amici’s absolute and unalienable right to

personal privacy and security specifically protected

by the Constitution’s Bill of Rights, and especially

the First (religion, free speech and association),

Fourth and Ninth Amendments.

These Amici’s five concerns are:

1. Female erasure.2 The term “female” used to

mean a characteristic associated with women based

on their unique physical, physiological, and

emotional characteristics. These distinct differences

formed the basis for statutory protections society

thought necessary to provide protection against

discrimination in certain areas, e.g., Title IX. Those

protections become meaningless if sex is a variable

that can change on the individual’s will. This erases

the unique and well-recognized distinctions that

define “female.”

Recognizing a biological male as a female, a

protected status under Title VII, based on an

individual’s own choice and feelings erases the

distinctions between male and female, making them

interchangeable in all meaningful aspects. One other

nation eliminated that distinction; it used the term

“comrade” to make males and females

interchangeable. History shows that concept did not

work very well with women being the losers.

This phenomenon can be seen in the

consequences of allowing biological males to compete

as females in sports. The U.S. Dept. of Ed., Office for

Civil Rights (“OCR”), opened an investigation against

the Connecticut Interscholastic Athletic Conference

and Glastonbury, CN, Board of Education on August

8, 2019, in response to parents’ and students’ claim

See Female Erasure (Ruth Barrett ed., 2019)

that allowing biological males, who claim to be

female, to compete in girls athletics discriminates

against biological females. U.S. Dept. of Ed, OCR

letter to Roger Brooks, Alliance Defending Freedom,

re: Complaint Nos. 01-19-4025 & 01-19-1252. These

males have dominated their female events. The

parents and students claim the presence of these

biological males in competitive events sends a

message to females that they should not try to

compete, given men’s superiority in certain factors

when measured against females. The record in

Connecticut and other places shows females have no

chance to win against men claiming to be female.

Biological males have challenged women

shelters’ policies that exclude biological men because

of the trauma a biological male would inflict on the

shelter’s residents. The Downtown Soup Kitchen

D/b/a Downtown Hope Center v. Municipality of

Anchorage, Anchorage Equal Rights Commission,

No. 3:18-CV-00190-SLG, 2019 WL 3769623, at *1 (D.

Alaska Aug. 9, 2019) (“Most of the women at Hope

Center shelters have escaped from sex trafficking or

been abused or battered, primarily at the hands of

men”).3

Hope Center’s attorney told the Judge “women have told

shelter officials that if biological men are allowed to spend the

night alongside them, ‘they would rather sleep in the woods,’

even in extreme cold like the city has experienced this week

with temperatures hovering around zero.” AP News 1/11/19

article by Rachel D'Oro, “ Faith-based shelter fights to keep out

transgender women” found at https

://www.apnews.com/85494d367c2d4a38b1749f76a89f49c3

2. Feelings versus Facts. There appears to be a

trend to the unwarranted and dangerous

substitution of “feelings” for “fact” as the subjects to

which courts apply law. Judges are supposed to

decide law based on the facts. Recognizing “gender”

in place of “sex” requires courts to evaluate feelings

rather than facts and decide which feelings are

superior to others. This undermines, if not destroys,

the very concept of individual rights supported by

the due process of law, which depends on facts, not

feelings. This allows courts to ignore the reality of

the serious and critical biological differences between

men and women.

Rather than examining the facts of biology and

physiology of the different sexes and the impact of

their differences, courts are now being asked to

evaluate whether one person’s feelings trump

another person’s well-founded natural fear when a

biological male claiming to be female is allowed into

formerly female private and secure places where

women’s physical distinctions, e.g., breasts and pubic

areas, are exposed. See Hope Center above and note

3 supra.

3. Coerced Consent. Women currently have the

right to consent to who can interact with them

sexually. Women should continue to enjoy free

consent regarding who can share private, sexually

revealing places with them. Redefining sex as

"gender" would strip women of their freedom to

consent and instead would coerce them to share

private, sexually revealing spaces with biological

males. This would also destroy women’s unalienable

right to personal security and privacy. See

§ I.B-C infra.

4. Granting biological males legal access to

protected female private spaces creates uncertainty

and a natural fear in females. Women and their

children are most vulnerable to deviant and criminal

activity in these private places and situations.

Women and children will have little or no legal

recourse for prevention, defense, or imposition of

liability for damages from such encounters if Title

VII eliminates the biological differences between the

sexes. Reports of attempted criminal acts against

women and children in stores which have opened

women’s restrooms, dressing, fitting and changing

rooms to biological males are evidence this fear is not

unfounded speculation.4

5. Government compelled speech and behavior.

The government’s exercise of its power through Title

VII to coerce acceptance and approval of what many

consider unacceptable behaviors, results in assaults

on and conflicts with Amici’s right to personal

security and privacy and their First, Fourth and

Christian Post, Transgender Bathroom Policies Have Led to 21

Attacks on Women (2/16/17), available at

https://www.christianpost.com/news/transgender-bathroompolicies-have-led-to-21-cases-of-crimes-against-women-familyresearch-council.html

Ninth Amendment rights and interests. This

coercion inevitably suppresses any evidence or

discussion showing the behaviors are harmful. See

Notes 5-7, 9 infra. Persons diagnosed with gender

dysphoria, a recognized mental disorder, see note 9

infra, experience high negative mental and physical

conditions and injuries from body altering surgery,

e.g., high rates of suicide, substance abuse,5

depression, and later remorse for a bad choice.6

People who do not cooperate with redefining sex as

gender have been harmed. Teachers and professors

have been fired for refusing to address students by

their desired pronoun rather than their biological

one.7

The 2104 National Transgender Discrimination Survey ,

https://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP

-Williams-Suicide-Report-Final.pd

Ryan T. Anderson, Sex Reassignment Doesn’t Work. Here Is

the Evidence, (3/9/2018)

https://www.heritage.org/gender/commentary/sex-reassignmentdoesnt-work-here-the-evidence

Washington Examiner, Professor suing Ohio University for

forcing him to use a student's transgender pronoun (11/24/18)

available at https://www..com/.../professor-wanted-to-use-astuden...; NBC News report, Teacher fired for refusing to use

transgender student's pronoun (12/10/18), available at

https://www.nbcnews.com/.../teacher-fired-refusing-usetransgender-studen...

This conflict is further illustrated in the actual

situation involving a chaplain whose orthodox,

Christian belief embraces and adheres to the biblical

Creation account that God made humans only as

males and females, with no mistake in that

designation. The chaplain’s commanding officer was

a biological woman who adamantly claimed she was

a male.8 She informed the chaplain that during the

unit’s annual training, the chaplain, who was

married, would be sharing sleeping accommodations

with the commander who was still a biological female

because they were part of a command team. The

chaplain informed his endorser of the situation and

stated there was no way he would sleep with another

female not his wife. The commander received orders

precluding her attendance at the training, thus

avoiding a conflict. Had that not happened, the

chaplain’s career could have ended because his

natural and religious beliefs would be in conflict with

the commander’s view of reality, i.e., she was a male

because she said so and any conflicting views were

not tolerated.

The chaplain theoretically had some statutory

protection, see § 533 of 2013 National Defense

Authorization Act (“NDAA”), Public Law 112-239,

126 Stat 1727; § 532 of 2014 NDAA, Public Law 11366,127 STAT. 672. Any other officer or enlisted

person would find themselves with few options and

Counsel was involved in this issue which never reached the

public news.

no defense against malicious rumors, allegations of

disrespect of a peer, failure to obey an order, etc.

Sharing sleeping quarters with a biological female

would result in the chaplain’s loss of his

endorsement, result in rumors of sexual impropriety,

create marriage difficulties, and the possibility of

unfounded charges of sexual misconduct if the

biological woman decided to claim she was sexually

assaulted or harassed. This situation is a made to

order stressor for married military couples and

military persons with traditional biblical beliefs

concerning sex and marriage.

The above situation highlights these Amici’s

concerns and the risks they face because of limited

choices for medical, professional and commercial

services on military bases, involving female private

and protected spaces, e.g., medical, legal,

recreational, athletic and shopping facilities. Any

change to Title VII resulting from this case would be

mandatory, stripping Amici of their well-established

rights to personal security and privacy.

INTRODUCTION

Military Spouses United is an informal group

of military spouses and women united by their

common concerns raised here. Their great concerns

center and spring from the profound impacts that

follow if Title VII is judicially rewritten to exclude

biology from its definition of “sex”, recognizing

transgender as a protected category. Those impacts

include threats to the Amici’s constitutional right to

personal privacy, safety and security, their First

Amendment rights, and those of their children and

families. These threats are especially serious given

the unique military culture, community, structure

and environment in which they live

These amici leave it to Petitioners and other

Amici to address why (a) Congress and the Executive

who signed the bill did not and could not have

included biological males claiming to be females or

gender identity preference in Title VII’s definition of

“sex” when that legislation was passed; and (b) such

inclusion is inconsistent with other legislation

addressing “sex.” For example, allowing courts to

redefine Title VII’s meaning of sex to include gender

identity essentially vitiates the purposes of Titles VII

and IX since allowing one’s sex to be self-determined

apart from his/her biological characteristics makes

those statutes and their purposes meaningless.

SUMMARY OF ARGUMENT

The Sixth Circuit’s rewrite of Title VII’s

definition of “sex” to include a biological male who

demands to be treated as a female reflects an assault

upon these Amici absolute and unalienable rights to

personal security and its inherent, corollary or

collateral right of personal privacy. The

Constitution’s Bill of Rights, specifically the First,

Fourth and Ninth Amendments, protect these rights

of personal security and privacy. Respondent asks

this Court to affirm by sheer judicial power the Sixth

Circuit’s modification of the Constitution outside of

Article V’s amendment procedures, abandoning the

due process of law.

Sir William Blackstone’s Commentaries on the

English Law (1756), (“Commentaries”) clearly

defined these rights of personal security and privacy.

Blackstone explained these were fundamental rights

of every Englishman under England’s unwritten

Constitution, including our colonial forbearers and

America’s founders. Those rights became our

fundamental rights. No party has or can point to any

recognized official surrender of those rights to the

federal or local government by either American

citizens or the States. These rights of personal

security and privacy are further protected by

common law criminal sanctions such as assault,

sexual assault, rape, battery, and unlawful

imprisonment.

II.

Respondent also asks this Court to authorize

biological males sufferings from a recognized mental

condition, gender dysphoria, to unilaterally impose

that condition’s negative consequences and

manifestations on females and children, like these

amici, while depriving these females protection of

their basic rights. This has never been done before.

Courts have never prioritized the consequences of a

biological male’s mental illness or condition over

innocent females’ rights to personal security, privacy,

First Amendment protections and freedom from fear

of assault or other crimes.

ARGUMENT

The Bill of Rights Precludes Government

from Recognizing or Forcing Acceptance

of a Biological Male’s Claim He Is a

Female

Sir William Blackstone’s Commentaries, “Book

the First. Of the Rights of Persons. Chapter I: Of the

Absolute Rights of Individuals”, clearly defined the

“absolute rights” of all Englishmen at the time of the

War of Independence and the Constitution’s

ratification. See District of Columbia v. Heller, 554

U.S. 570, 595 (2008) (citing Blackstone’s discussion

of the right to bear arms). The Declaration of

Independence presents a long list of American

grievances which identify specific violations of those

well-established rights as Englishmen which

Blackstone defined.

The founders and citizens of the new United

States were suspicious of centralized, arbitrary

power. Americans obtained their independence at

great cost after a long war to secure the absolute and

unalienable rights Blackstone’s Commentaries

described. They wanted to protect these rights from

the tyranny of despots, whether as monarchs,

parliaments, or other men.

The issue facing the American people at the

time the Constitution was ratified was the proper

and well-defined limitations on the proposed federal

government’s power. They did not want the new

government to subvert, reduce or marginalize their

fundamental rights the Constitution did not

specifically mention. Americans insisted as a

condition of ratification Congress provide a Bill of

Rights guaranteeing the new federal government

would not abuse or diminish their fundamental

rights purchased by blood and sacrifice. See W.Va.

State Board of Education v. Barnette, 319 U.S. 624,

636 (1943).

That term, “Bill of Rights” was not created in a

vacuum. Blackstone articulated its pedigree and

meaning, giving the term substance and context. To

ensure all those “fundamental rights” they enjoyed

as Englishmen were secured from federal

government encroachment and abuse, the Founders

drafted and the States ratified 10 constitutional

amendments. Those amendments became our Bill of

Rights.

The very purpose of a Bill of Rights was

to withdraw certain subjects from the

vicissitudes of political controversy, to

place them beyond the reach of

majorities and officials and to establish

them as legal principles to be applied by

the courts. One's right to life, liberty,

and property, to free speech, a free

press, freedom of worship and assembly,

and other fundamental rights may not

be submitted to vote; they depend on

the outcome of no elections.

Barnett, 319 U.S. at 638.

The Bill of Rights contains one specific

constitutional guarantee at issue before this Court.

Amendment IX states: “The enumeration in the

Constitution, of certain rights, shall not be construed

to deny or disparage others retained by the people.”

The Ninth Amendment, in conjunction with the other

identified rights in the first 8 amendments, bars this

Court from recognizing new rights that destroy the

absolute and unalienable right of personal security

and privacy and diminish our other fundamental

rights. Such destruction is the inevitable

consequence of recognizing as a protected class

biological males demanding treatment as females.

The Issue Before the Court: Did

Congress Exclude Biology from

Title VII’s Definition of Sex

Gender dysphoria is a recognized mental

health disorder.9 It’s a condition which has serious

negative consequences to those suffering from it or

those who come in contact with such persons. Those

consequences include high suicide rates, depression,

destructive addictions and other mental issues. See

Lawrence C. Mayer & Paul R. McHugh, “Sexuality

and Gender,” 50 The New Atlantis 1 (Fall 2016),

https://www.thenewatlantis.com/docLib/20160819_T

NA50SexualityandGender.pdf (last visited Aug. 19,

2019).

The Sixth Circuit’s decision now before this

Court allows males to self-identify as females

without a sex change operation and to be treated as

females, allowing unrestricted access to formerly

“protected female privacy spaces.” Such protected

privacy spaces include private, business related or

government changing rooms, bathrooms and bathshower facilities where females undress and/or

Gender dysphoria is listed as a mental disorder by the

Diagnostic and Statistical Manual of the American Psychiatric

Association (DSM-5). Gender dysphoria was called “gender

identity disorder” before 2013 and part of the medical literature

as early as 1923. See 102 The J. of Clinical Endocrinology &

Metabolism 3869, 3873 (2017), found

at https://doi.org/10.1210/jc.2017-01658 (last visited May 21,

2019).

expose portions of their body which historically have

been shielded from public view, e.g, female breasts

and pubic areas. These protected privacy spaces,

until recently, were limited to young children and

females as determined by biology. This privacy

historically protected the women and children using

them from unwelcome contact, trauma, viewing or

access by biological males. See Hope Center and note

3 supra.

Respondent asks the Court to “sit as a

super-legislature to determine the wisdom, need, and

propriety of laws that touch economic problems,

business affairs, or social conditions.” See Griswold

v. Connecticut, 381 U.S. 479, 482 (1965). This

conflicts with the duty of courts to protect citizens

from threats to their rights, including personal

privacy and security, and not empower those with

disruptive behavior or mental disorders to harm or

force the natural consequences of that behavior or

disorder, including criminal acts, on ordinary citizens

who rely on the law and courts for protection.

“Constitutional provisions for the security of

person and property are to be liberally construed,

and ‘it is the duty of courts to be watchful for the

constitutional rights of the citizen, and against any

stealthy encroachments thereon.’” Byars v. United

States, 273 U.S. 28, 32 (1927) (quoting Boyd v. U.S.,

116 U.S. 616, 635 (1886) and Gouled v. U.S., 255

U.S. 298, 304 (1921)); accord Coolidge v. New

Hampshire, 403 U.S. 443, 453–54 (1971)(quoting

Boyd).

The Sixth Circuit ignored the natural

consequences of elevating gender dysphoria, a

recognized mental disorder, to a protected class,

essentially finding historic protections for women

and children are fossilized notions inconsistent with

the current fad to be supersensitive to the feelings of

confused individuals. That court appears to have

abandoned its duty to enforce constitutional

guarantees and protect the vulnerable from trauma

and, in some cases such as Hope Center, to prevent

further victimization and injury. The Sixth Circuit

seeks to amend the Constitution outside of Article

V’s processes and provisions by ignoring its duty.

The Individual Right to Personal

Security and Privacy Was

Recognized as a Fundamental,

Absolute Right of United States

Citizens When the Constitution Was

Adopted

The fundamental right of personal security

and its inherent corollary, the right of personal

privacy and safety, was well-established in the

English common-law. Blackstone identified it as one

of the rights of all Englishmen.

Blackstone explained “the primary and

principal object of the law” are rights; he identified

“rights that are commanded” and “wrongs that are

forbidden”, 1 Commentaries at *122. He subdivided

rights into two classes, “first, those which concern

and are annexed to the persons of men… or the

rights of persons”, and second, “the rights of things.”

Id. He explained persons were “either natural

persons or artificial. Natural persons are such as the

God of nature formed us” and artificial persons were

formed by law, such as corporations, for government

and society’s purposes. Id at *123.

Id.

By the absolute rights of individuals, we

mean those which are so in their

primary and strictest sense; such as

would belong to their persons merely in

a state of nature, and which every man

is entitled to enjoy, whether out of

society or in it.

Individuals are endowed with “those absolute

rights ... by the immutable laws of nature” but

preserved by “friendly and social communities.” Id. at

*124. According to Blackstone, it followed “that the

first and primary end of human laws is to maintain

and regulate these absolute rights of individuals”,

id., and “the principal view of human laws is, or

ought always to be, to explain, protect and enforce

such rights as are absolute, which in themselves are

few and simple[.]” Id. at *124-25. Blackstone then

explained, “the rights of the people of England ...

may be reduced to three principal or primary

articles; the right of personal security, the right of

personal liberty, and the right of private property.”

Id. at *129.

Nowhere in our history do we find a precedent

where a recognized mental disorder establishes an

absolute right for a biological male to behave in ways

that damage or harm innocent females or children,

violating their absolute right to personal security

and privacy.

The absolute right of personal

security

“The right of personal security consists

in a person’s legal and uninterrupted enjoyment of

his life, his limbs, his body, his health, and his

reputation.” Id. Concerning enjoyment of an

individual’s body, Blackstone’s third point explaining

an individual’s enjoyment of her body states:

3. Besides those limbs and members

that may be necessary to a man in order

to defend himself or annoy his enemy,

the rest of his person or body is also

entitled, by the same natural right, to

security from the corporal insults of

menaces, assaults, beating, and

wounding; though such insults amount

not to destruction of life or member.

Id. at *134. This directly applies to the issue here

and the Amici’s concerns and interests.

Inherent in the absolute right

of personal security is the

right of privacy

Inherent in the absolute right of

personal security is the corollary, ancillary or

collateral right of privacy. Privacy is inherent and

ancillary to personal security because it provides

both the expectation of safety from unwelcome

invasions of that privacy and the protection

necessary for safety from unwelcome invasions.

Privacy excludes likely or possible threats to

personal security. For women, that includes

protection from unwanted contacts, sexual advances,

both actual and threatened, and other crimes or

threats against a woman’s body or that of her

children. This would include fear of assault,

emotional distress, and embarrassment from the

unwanted viewing, touching, or exposure of intimate

private female body parts by biological males.

When Blackstone wrote his Commentaries,

our nation was founded, the Constitution and the

14th Amendment were ratified, and up until

recently, the appearance of a biological man in a

woman’s personal protected privacy space would

automatically be considered assault. Such

appearance would naturally put women or children

in fear of injury or sexual battery. A male claiming in

that time he had the right to walk into a female

dressing room or shower because he felt like or

thought he was a woman would have been instantly

declared a lunatic and a criminal. Nothing shows

that fear was unreasonable then or is unreasonable

now. See note 3 supra. Privacy is the result of

establishing the conditions for personal security by

limiting the natural means that compromise that

security.

The First Amendment also has an inherent

privacy right, the flip side or corollary of our rights to

associate and assemble peaceably. See NAACP v.

State of Alabama, 357 U.S. 449, 462, (1958) (First

Amendment protects freedom to associate and

privacy in one's associations). The right to assemble

also means the right not to assemble and to limit our

associations for a specific time. See NAACP v.

Button, 371 U.S. 415, 430-31(1963); Griswold, 381

U.S. at 483. The right to free speech includes the

right not to be forced to speak or speak a message

one disagrees with. Wooley v. Maynard, 430 U.S.

705, 714 (1977). Correspondingly, the right to

personal security for females and children means the

right to ensure security by limiting access to those

areas where exposure of private and intimate bodily

parts places them in great potential danger and

vulnerability from the opposite sex.

The First Amendment right to limit one’s

associations to either many or none deserves special

consideration given the circumstances of biological

males seeking to enter female private and protected

spaces. This First Amendment right reinforces the

recognized right of personal security and privacy.

The right of personal security

included special protection

for women

Blackstone’s Book 4, “Public Wrongs”,

identifies special crimes “immediately affecting the

personal security of individuals, relat[ing] to the

female part of his majesty's subjects”, 4

Commentaries at 208. These were crimes specifically

directed against women because of their sex’s

characteristics. The first was “that of their forcible

abduction and marriage”, id. The second was rape.

Id. at 210 The fact they were crimes under English

common-law and its Constitution shows there were

special concerns for and severe penalties for violating

women’s rights to security and privacy. Laws against

assault and battery also protected women.

Until recently, there has been no question that

allowing a biological male into female dressing,

changing or bathroom facilities was a violation of a

woman’s sense of privacy and control over her body.

This was the equivalent of a trespass, and the

natural fear of a physically stronger man in a private

place gave rise to an assault per se, in addition to

fears of actual violence or other acts of a criminal or

tortuous nature.

The Bill of Rights specifically

identified and retained

Blackstone’s absolute

personal rights including the

inherent right of personal

privacy

Our colonist forefathers and founders

were greatly concerned the new federal government

would usurp their hard-fought rights and liberties

because the Constitution did not clearly identify or

define those rights. Ratification of the Constitution

was premised on the timely enactment of a Bill of

Rights. While identifying specific fundamental rights

in the first eight amendments, they “retained” their

other fundamental rights for “the people” under the

Constitution’s Ninth Amendment.

English common law continued to be the law

of the individual States and the basis for new federal

law, although English law per se did not govern and

control the law in the newly independent United

States. Blackstone’s Commentaries remained the

legal authority for American courts and legal

systems, and his rights and wrongs continued to be

applied in American jurisprudence. Successive

reprints of his commentaries updated the application

to American law and jurisprudence.

Chancellor James Kent, “Commentaries on

American Law” (1826-30), adopted Blackstone’s

methodology and explanation of the law. For

example, his Lecture 24, “Of the Absolute Rights of

Persons”, tracks very closely with Blackstone’s

Commentaries.

The rights of persons in private

life are either absolute, being such as

belong to individuals in a single

unconnected state; or relative, being

those which arise from the civil and

domestic relations.

The absolute rights of individuals

may be resolved into the right of

personal security, the right of personal

liberty, and the right to acquire and

enjoy property. These rights have been

justly considered, and frequently

declared, by the people of this country to

be natural, inherent, and unalienable.

Id. at 1, htps://lonang.com/library/reference/kentcommentaries-american-law/kent/24/. Compare with

1 Commentaries at *129 (“the rights of the people of

England ... may be reduced to three principal or

primary articles; the right of personal security, the

right of personal liberty, and the right of private

property.”

The Constitution neither delegates nor

recognizes any power to abrogate those rights except

where compelling governmental interests are at

stake or the provisions of Article V are used to

amend the Constitution.

This Court has recognized the

ancillary or peripheral right to privacy

in the specific rights comprising the Bill

of Rights. The First Amendment, for

example, imposes limitations upon

governmental abridgment of ‘freedom to

associate and privacy in one's

associations.’ NAACP v. State of

Alabama, 357 U.S. 449, 462 (1958.) The

Third Amendment's prohibition against

the unconsented peacetime quartering

of soldiers protects another aspect of

privacy from governmental intrusion.

To some extent, the Fifth Amendment

too ‘reflects the Constitution's concern

for * * * ’* * * the right of each

individual ‘to a private enclave where

he may lead a private life.’”(citation

omitted)

Katz v. United States, 389 U.S. 347, 351, n.5 (1967).

Katz, a Fourth Amendment case, held “the

Fourth Amendment protects people, not places.” Id.

at 351. The Fourth amendment does not protect

what a person knowingly exposes to the public, but

“what he seeks to preserve as private, even in an

area accessible to the public, may be constitutionally

protected.” Id. That principle certainly applies here

to the Amici’s interests in protecting their specific

personal privacy and security rights in maintaining

control over exposure of their and their children’s

bodies and maintaining the specific uniqueness of

that right given their status as females.

Griswold, finding a right of privacy in the

marital relationship, cited approvingly Katz’s

holding on the “peripheral rights” of privacy in the

First, Third, Fourth and Fifth Amendments. 381

U.S. at 484. Griswold explained, “Without those

peripheral rights, the specific rights would be less

secure.” Griswold explained how the “freedom to

associate and privacy in one’s associations” was a

First Amendment peripheral right, id. at 430.

“Association in that context is a form of expression of

opinion; and while it is not expressly included in the

First Amendment its existence is necessary in

making the express guarantees fully meaningful. Id

at 43. See, e.g., Ex parte Jackson, 96 U.S. 727, 733

(1877) (“Liberty of circulating [a publication] is as

essential to [freedom of the press] as liberty of

publishing; indeed, without the circulation, the

publication would be of little value”).

The Ninth Amendment

retained Blackstone’s

absolute personal rights for

all American Citizens

The very language of the Ninth

Amendment clearly stated the nation’s decision to

ensure that all of their rights they had known as

Englishmen were protected from diminishment or

destruction. The full scope of Blackstone’s

fundamental rights, especially the right to personal

security, are retained in that Amendment. There is

no record of the American people rejecting those

rights nor ceding them to the government.

The Sixth Circuit’s Decision Is

Incompatible with the Bill of Rights

Protection of Amici’s Privacy and

First Amendment Rights

Consideration of the issues arising from a

biological male’s claim his real sex is female rather

than that indicated by his actual sexual equipment

must consider the actual consequences of granting

such a claim.

Respondent claims he can use government

power and agencies to force Petitioner to

acknowledge and treat Respondent as a female based

on Respondent’s claim he is a male who wants to

change into a female despite being born a biological

male. Respondent is still a biological male. He does

not argue his right to be treated as a female despite

being a biological male ends at the Funeral Home

property line. Rather he claims entitlement to enjoy

all the rights available to biological females.

Absent from the Sixth Circuit’s discussion is

the impact on the fundamental and well-established

constitutional rights of other Americans, including

these Amici, flowing from the Sixth Circuit’s Title

VII rewrite. The Court cannot enlarge a protected

category if doing so conflicts with or assaults the

“absolute” rights of others, including these Amici.

The Constitution is constructed so its defined

and protected rights support and complement each

other, ensuring what courts have referred to as

ordered liberty. For example, Fifth or Fourteenth

Amendment rights don’t conflict with the First

Amendment. See Barnett, 319 U.S. at 639 (“Much of

the vagueness of the due process clause disappears

when the specific prohibitions of the First become its

standard. *** [W]hile it is the Fourteenth

Amendment which bears directly upon the State it is

the more specific limiting principles of the First

Amendment that finally govern this case.”).

Male and female adults and parents have

come to rely on the historic and inherent privacy of

these uniquely private places such as dressing,

changing or bathroom facilities to provide safety for

themselves and their children from sexual predators

of the opposite sex by excluding the opposite sex.

Governmental policies removing the natural

barriers between biological males and females have

left victims without legal recourse to recover

damages for the violation of their privacy or other

injuries including psychological, physical, and

emotional damage. Those damages are easily

foreseeable when government agencies remove the

historic restrictions on biological males from the

private places where females should have every

expectation of privacy and security. See note 3 supra.

II.

The Sixth Circuit’s Decision Authorizes

Persons Suffering from a Recognized

Mental Disorder, Gender Dysphoria, to

Unilaterally Harm Others While Escaping

Liability

The Sixth Circuit’s decision here shows a

willful blindness to the consequences of placing a

biological man with a recognized mental disorder,

gender dysphoria,10 in a protected class. That allows

him to run roughshod over well-established female

privacy and personal security rights.

This is not the case of a person with a

disability seeking a reasonable accommodation. Here

a biological man demands treatment as a woman and

the Sixth Circuit has granted his request despite the

obvious dangers to the personal security and privacy

rights of females. That decision allows a biological

man with a mental disorder to enter into those

special protected female privacy places. The Sixth

Circuit decision ignores reality and the constitutional

rights of privacy and personal security of females.

Unwanted exposure to a biological male,

whether dressed or undressed, in these previously

historic private places can (1) produce long-lasting

emotional, psychological and physical injury and

trauma, see Hope Center and note 3 supra; (2) divest

See note 9 supra and Lawrence C. Mayer & Paul R. McHugh,

“Sexuality and Gender,” op. cit.

parents from control over when and how their

children learn of and become exposed to the realities

of the different sexes; and (3) open children and

women particularly to sexual abuse, harassment,

unwanted sexual advances, or voyeuristic

opportunities from such males. Even if Respondent

commits no crime, his very presence creates tension,

stress, and fear; in some cases such presence creates

actual trauma, see Hope Center and note 3 supra.

Yet under the Sixth Circuit’s decision

biological men demanding treatment as women can

escape liability for the harm they cause. The recently

decided Downtown Hope Center case, described in

Amici’s Interests, illustrates in graphic detail the

potential untrammeled violation of female victims’

rights. It also illustrates the foreseeable piling on of

traumatic harm with no liability for the male

perpetrator and no recourse for the female or child

victim. This pursuit of an ideology has no foundation

in American jurisprudence.

Hope Center is a faith-based shelter for

battered and abused women. Id. at *1 (“Most of the

women that Hope Center shelters have escaped from

sex trafficking or been abused or battered, primarily

at the hands of men”). The Sixth Circuit’s ruling

ignores the privacy and personal security interests of

these unfortunate women which now must give way

to Respondent’s “feelings.” Likewise, the faith and

religious beliefs of those who operate Hope Center

and minister to these victims means nothing. They

are expected to facilitate, if not take part in, the

continued traumatization of women already abused

by exposing them to biological men in what was

formerly a private and protected female space.

The 1/11/19 AP News article at Note 3

describes the serious emotional damage Hope

Center’s women clients have suffered and the stark

choices they would face were the Anchorage Equal

Rights Commission to succeed in forcing Hope

Center to admit that biological man claiming to be a

woman: “they would rather sleep in the woods, even

in extreme cold like the city has experienced this

week with temperatures hovering around zero.” Id.

Even being forced to consider the choice in

other circumstances would be serious “intentional

infliction of emotional distress” and the perpetrators

would be liable for damages and medical treatment.

But because of the Sixth Circuit’s ruling, regardless

of how many women were traumatized by this

biological man’s presence and/or his behavior, they

would be without remedy since the law protects the

biological man’s actions. This is absurd.

Government may provide special treatment for

gender dysphoria that does not involve subjecting

innocent bystanders to trauma or harm, but that

decision should come not from unelected judges, but

from those who make laws legislatively and are

accountable to the voters for their decisions.

CONCLUSION

The Sixth Circuit has established a dangerous

precedent. This Court should grant Petitioner Harris

Funeral Home’s request for relief and clearly and

strongly reject the Sixth Circuit’s ruling, reasoning,

and attempt to avoid Article V’s provisions to change

the Constitution. The Court should also reaffirm the

well-established right of personal privacy and

security and admonish the lower courts their duty is

to protect those rights from degradation, destruction

or marginalization.

Respectfully submitted,

/S/ Arthur A. Schulcz Sr.

Arthur A. Schulcz Sr.