Amicus Curiae Brief — Gloucester County School Board, Petitioner v. Gavin Grimm

No. 20-1163

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IN THE

Supreme Court of the United States

____________________

GLOUCESTER COUNTY SCHOOL BOARD, Petitioner,

v.

GAVIN GRIMM, Respondent.

____________________

On Petition for a Writ of Certiorari

to the U.S. Court of Appeals for the Fourth Circuit

____________________

Brief Amicus Curiae of

Public Advocate of the United States,

Eagle Forum, Eagle Forum Foundation,

Recover America Now, California

Constitutional Rights Foundation, One Nation

Under God Foundation, Conservative Legal

Defense and Education Fund, I Belong Amen

Ministries, Center for Morality, and

Restoring Liberty Action Committee in

Support of Petitioner

____________________

JAMES N. CLYMER

Lancaster, PA

J. MARK BREWER

Houston, TX

GARY G. KREEP

Ramona, CA

STEVEN C. BAILEY

Ramona, CA

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record

March 26, 2021

JOSEPH W. MILLER

Fairbanks, AK

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TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

THE FOURTH CIRCUIT’S ANALYSES OF TITLE IX

AND THE EQUAL PROTECTION CLAUSE ARE

FLAWED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Fourth Circuit Misapplied Title IX

and the Equal Protection Clause . . . . . . . . 5

B. The Fourth Circuit’s Decision Violates

Established Precedents. . . . . . . . . . . . . . . . 7

C. Who Is Similarly Situated When It

Comes to Sex-Segregated Facilities? . . . . . 9

II. SPECIAL RIGHTS FOR TRANSGENDER PERSONS

CAN BEST BE ASSERTED, AND CANNOT

EFFECTIVELY BE OPPOSED, USING THE

FOURTH CIRCUIT’S “NEWSPEAK”. . . . . . . . . . . . 10

A. Addressing Transgenderism in Plain

Speak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Addressing Transgenderism Using

Newspeak . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Judicial Law Making . . . . . . . . . . . . . . . . 19

ii

III. THE FOURTH CIRCUIT’S DECISION OPENED

THE DOOR TO SOCIETAL CHAOS AND HARM TO

YOUNG PEOPLE . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Sex-Rights Litigation Has Proceeded

Down a Slippery Slope . . . . . . . . . . . . . . . 20

B. Sex Change Therapies Are Highly

Dangerous . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iii

TABLE OF AUTHORITIES

Page

HOLY BIBLE

Genesis 1:26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Genesis 2:24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Genesis 5:2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Psalm 139:13-14, 16 . . . . . . . . . . . . . . . . . . . . . . . .

Matthew 19:4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

21

13

15

13

U.S. CONSTITUTION

Fourteenth Amendment. . . . . . . . . . . . . . . . 3, passim

STATUTES

20 U.S.C. §§ 1681-88 (Title IX) . . . . . . . . . . 3, passim

REGULATIONS

34 C.F.R. § 106.33 . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CASES

Bell v. Tavistock, High Court, Point 151

(Jan. 12, 2020) . . . . . . . . . . . . . . . . . . . . 23,24,26

Bostock v. Clayton County,

140 S. Ct. 1731 (2020) . . . . . . . . . . . . . . . . . . . . 5

Bowers v. Hardwick, 478 U.S. 186 (1986). . . . . . . 21

Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . 21

Obergefell v. Hodges, 576 U.S. 644 (2015) . . . . . . 21

Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . 21

Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) . . . 8,9

United States v. Virginia, 518 U.S. 515 (1996). . . . 8

MISCELLANEOUS

American Psychiatric Association, “Gender

Dysphoria Diagnosis” . . . . . . . . . . . . . . . . . . . 17

iv

D. Arthur, “A Former Transgender Opposes

Transgender Rights,” (Mar. 26, 2021). . . . . . .

E. Barry, “A Massachusetts City Decides to

Recognize Polyamorous Relationships,” New

York Times (July 1, 2020) . . . . . . . . . . . . . . . .

Blackstone, IV Commentaries on the Laws of

England . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. Brooks, “The Controversial Research on

‘Desistance’ in Transgender Youth,

KQED (May 23, 2018) . . . . . . . . . . . . . . . . . . .

J. Campellone, M.D. & R.K. Turley, RN,

“Understanding the Teen Brain,” Univ.

of Rochester Medical Center

Health Encyclopedia . . . . . . . . . . . . . . . . . . . .

Catholic Medical Association, Letter co-signed

by American College of Pediatricians and

Christian Medical & Dental Association

(Mar. 17, 2021). . . . . . . . . . . . . . . . . . . . . . . . .

M. Stanton Evans, The Theme Is Freedom

(Regnery Publishing: 1994) . . . . . . . . . . . . . . .

“Father faces arrest and jail time for trying to

stop doctors from transitioning his middle

school daughter to a boy,” The Gateway

Pundit (Mar. 13, 2021). . . . . . . . . . . . . . . . . . .

F. Kao and A. Jones, “We Must Fight the

Sexualization of Children by Adults,”

Heritage Foundation (Oct. 5, 2019) . . . . . . . .

B. Lang, “Queer Polyamorous Love Story ‘Ma

Belle, My Beauty’ Sells to Good Deed

(Exclusive),” Variety (Feb. 18, 2021) . . . . . . . .

J. Law, Sex Appealed: Was the U.S. Supreme

Court Fooled? (Eakin Press: 2005) . . . . . . . . .

N. McCorvey, I Am Roe (HarperCollins: 1994) . . .

11

22

20

14

14

25

23

15

16

22

21

21

v

G. Orwell, “Politics and the English Language,”

(1946) . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 19

B. Palmer, “How many kids are sexually abused

by their Teachers: Probably millions,”

Slate (Feb. 8, 2012) . . . . . . . . . . . . . . . . . . . . . 16

S. Saint Thomas and T. Andrews, “12 GenderRelated Terms You Should Know and

Understand: Consider this your cheat sheet,”

Cosmopolitan (Oct. 29, 2020) . . . . . . . . . . . . . 18

L. Sax, “How common is intersex? A response to

Anne Fausto-Sterling,” The Journal of

Sex Research (Aug. 2002) . . . . . . . . . . . . . . . . 13

E. Sheff, Ph.D., “Polyamory Advocacy: Activists

and Organizations Dedicated to Advocating

for Polyamory,” Psychology Today

(Mar. 21, 2016). . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Shrier, Irreversible Damage: The Transgender

Craze Seducing Our Daughters

(Regnery Publishing: 2020) . . . . . . . . 24, 25, 26

J. Van Maren, “World-renowned child psychiatrist

calls trans treatments ‘possibly one of the

greatest scandals in medical history,’” The

Bridgehead (Sept. 25, 2019) . . . . . . . . . . . . . . 25

“When Do Children Feel Modesty?”

You Are Mom (Mar. 15, 2019) . . . . . . . . . . . . . 16

“Who We Are,” NAMBLA (2011) . . . . . . . . . . . . . . 22

T.M. Wizemann, edt., “Every cell has a sex,”

Exploring the Biological Contributions to Human

Health: Does Sex Matter? (National Academies

Press: 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

INTEREST OF THE AMICI CURIAE1

Public Advocate of the United States and Eagle

Forum are nonprofit social welfare organizations,

exempt from federal income tax under Internal

Revenue Code (“IRC”) § 501(c)(4). Eagle Forum

Foundation, Recover America Now, California

Constitutional Rights Foundation, One Nation Under

God Foundation, and Conservative Legal Defense and

Education Fund are nonprofit educational and legal

organizations, exempt from federal income tax under

IRC § 501(c)(3). I Belong Amen Ministries is a

ministry headed by David Arthur, a former

homosexual and former transgender person. Center

for Morality and Restoring Liberty Action Committee

are educational organizations. Amici organizations

were established, inter alia, for the purpose of

participating in the public policy process, including

conducting research, and informing and educating the

public on the proper construction of state and federal

constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil

rights secured by law. Some of these amici also filed

amicus briefs earlier in this case:

• G.G. v. Gloucester County School Board, No. 152056, Fourth Circuit, Brief Amicus Curiae in

1

It is hereby certified that counsel for the parties have consented

to the filing of this brief; that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to its filing; that no counsel for a party authored this brief in

whole or in part; and that no person other than these amici curiae,

their members, or their counsel made a monetary contribution to

its preparation or submission.

2

Support of Petition for Rehearing En Banc (May

10, 2016);

• Gloucester County School Board v. G.G., No. 16273, U.S. Supreme Court, Brief Amicus Curiae

in Support of Petitioner (January 10, 2017); and

• G.G. v. Gloucester County School Board, No. 152056, Fourth Circuit, Brief Amicus Curiae in

Support of Affirmance (May 15, 2017).

In addition, some of these amici have filed amicus

briefs in other similar cases, including:

• EEOC v. Harris Funeral Homes, No. 16-2424,

Sixth Circuit, Brief Amicus Curiae in Support of

Affirmance (May 24, 2017);

• Zarda v. Altitude Express, No. 15-3775, Second

Circuit, Brief Amicus Curiae in Support of

Affirmance (July 26, 2017);

• Altitude Express v. Zarda, No. 17-1623, U.S.

Supreme Court (Petition Stage), Brief Amicus

Curiae in Support of Petitioners (July 2, 2018);

• Harris Funeral Homes v. EEOC, No. 18-107,

U.S. Supreme Court (Petition Stage), Brief

Amicus Curiae in Support of Petitioner (August

23, 2018);

• Harris Funeral Homes v. EEOC, No. 18-107,

U.S. Supreme Court (Merits Stage), Brief

Amicus Curiae in Support of Petitioner (August

23, 2019); and

• Bostock v. Clayton County & Altitude Express

v. Zarda, Nos. 17-1618 & 17-1623, U.S. Supreme

Court (Merits Stage), Brief Amicus Curiae in

Support of the Employers (August 23, 2019).

3

SUMMARY OF ARGUMENT

The Fourth Circuit’s opinion is inconsistent with

both Title IX and the Equal Protection Clause. Judge

Niemeyer’s dissent exposed the key flaws in the

majority opinion. First, the word “sex” in Title IX

clearly referred to physiological distinctions between

males and females. Second, the exception in Title IX

allowing “separate living facilities for the different

sexes” clearly was based on biological indicators.

Third, Grimm made no challenge to constitutionality

of the Title IX exception allowing separate bathrooms

by biological sex. Fourth, Grimm never established

that biological females (who were identified as male)

were similarly situated to (cisgender) biological males,

so as to trigger the Equal Protection Clause. The

Fourth Circuit’s crushing of the eternal, scientific, and

fundamental difference between males and females

violated the principles set out in at least two prior

decisions of this Court.

The court below revealed its bias and favoritism

for plaintiff-respondent Grimm and hostility to the

School Board and all those who defended its decisions

to accommodate Grimm in other ways than were

demanded. The Court below immediately adopted the

terminology of referring to biological female Grimm

with male pronouns, indicating its pre-supposition

that a person can change sexes. It referred to

biological sex as “assigned sex” as if it existed only

arbitrarily in the mind of a physician. For the

statutory term “sex” it employed the word “gender,”

which unlike “sex,” has no fixed meaning. It also

exhibited religious animus, describing a former lesbian

4

who left that lifestyle when she became a Christian by

including that among “ugly” comments opposing

special rights to Grimm.

As Judge Niemeyer

explained, the panel opinion revealed that it was

written “to effect policy rather than simply apply law.”

As the Petition stressed, in previously granting

certiorari, this Court already determined that the Title

IX issue presented in this case warrants review. In

addition, the consequences of allowing the Fourth

Circuit decision to stand will have far ranging

consequences. Prior decisions in this area are not just

resolutions of “cases” but rather more akin to a court

writing a law — here a law which will require school

boards to allow boys into the girls’ showers based on

subjective, unchallengeable “feelings.” Also, each such

decision in the past has been the stepping stone to

more claims for special sex-based rights. It would be

difficult to find an area of the law where the “slippery

slope” argument has more application. Additionally,

the Fourth Circuit detailed all of the counseling and

sex-change therapies given to Grimm, but not once

stopped to consider that those could be injurious to

children. There now exists a substantial body of

medical evidence that cross-sex therapies are

dangerous, irreversible, and should never be used for

minors. The enthusiasm exuded by the court below for

Grimm’s journey from girl to boy blinded the court to

the dangers of taking that impossible journey.

5

ARGUMENT

I.

THE FOURTH CIRCUIT’S ANALYSES OF

TITLE IX AND THE EQUAL PROTECTION

CLAUSE ARE FLAWED.

A. The Fourth Circuit Misapplied Title IX

and the Equal Protection Clause.

In dissent, Judge Niemeyer unraveled the legal

basis for the majority opinion below. First, he

addressed Grimm’s claim that denying her access to

the boys’ room violated the Title IX provision that no

person “on the basis of sex, be excluded from

participation in, be denied the benefits of, or be

subjected to discrimination” under covered programs.

He made clear that the meaning of the word “sex” in

1972, when Title IX was enacted, was in reference to

“the physiological distinctions between males and

females.” Grimm v. Gloucester County School Board,

972 F.3d 586, 632 (4th Cir. 2020) (Niemeyer, J.,

dissenting).

Judge Niemeyer’s view was not

countermanded by this Court’s decision in Bostock v.

Clayton County, 140 S. Ct. 1731 (2020). There, this

Court made clear that it was not deciding the meaning

of “sex.” Id. at 1739.

Judge Niemeyer addressed the exception built into

Title IX’s prohibition against sex discrimination by

which Congress authorized “‘maintaining separate

living facilities for the different sexes,’” which

regulations make clear included “‘separate toilet,

locker room, and shower facilities.’” 20 U.S.C. § 1686;

34 C.F.R. § 106.33. He explained that the purpose of

6

the exception was grounded in Congress’s

understandings that there were “biological indicators”

that distinguished the sexes, and therefore Congress

was addressing the difference between biological males

and biological females. Grimm at 632 (Niemeyer, J.,

dissenting).

It is undisputed that Grimm is a biological female.

Grimm never challenged Title IX’s authorization of

“separation of restrooms — indeed, he seeks to use the

male restrooms so separated from female restrooms”

even though granting access to the boys’ room “would

allow him to use restrooms contrary to the basis for

separation.” Id. at 634 (emphasis added).

With respect to the Equal Protection claim, Judge

Niemeyer explained that Grimm never demonstrated

that biological males were similarly situated to

biological females. See Subsection C, infra. And,

Grimm never argued “that Title IX violates the Equal

Protection Clause in allowing educational institutions

to separate restrooms on the basis of sex.” Id. at 635.

Judge Niemeyer concluded that “[i]n light of this

rationale, Grimm cannot claim that he was

discriminated against when he was denied access to

the male restrooms because he was not, in fact,

similarly situated to the biologically male students

who used those restrooms.” Grimm at 636.

7

B. The Fourth Circuit’s Decision Violates

Established Precedents.

Judge Niemeyer’s dissent also noted various

inconsistencies between the majority opinion and this

Court’s and Fourth Circuit precedents:

both the Supreme Court and [the Fourth

Circuit] have previously indicated that it is

this type of physiological privacy concern

[separate restrooms, locker rooms, and

showers] that has led to the establishment of

such sex-separated facilities. See United

States v. Virginia at 550 n.19 (recognizing that

“[p]hysical differences between men and

women” are “enduring” and render “the two

sexes ... not fungible” and acknowledging,

when ordering an all-male Virginia college to

admit female students, that such a remedy

“would undoubtedly require alterations

necessary to afford members of each sex

privacy from the other sex;” Faulkner v. Jones,

10 F.3d 226, 232 (4th Cir. 1993) (noting

“society’s undisputed approval of separate

public rest rooms for men and women based on

privacy concerns”). [Grimm at 634 (Niemeyer,

J., dissenting) (cleaned up).]

The school board’s petition points out that this

Court has appropriately recognized that the

distinctions between male and female do not prohibit

providing different, but equivalent, facilities for the

two sexes: “one distinction between the sexes that the

Equal Protection Clause allows is the designation of

8

spaces ‘necessary to afford members of each sex

privacy from the other sex in living arrangements.’”

Pet. Cert. at 29-30. Although United States v.

Virginia, 518 U.S. 515 (1996), cited by Petitioner, did

not involve a challenge to sex-segregated facilities, it

did acknowledge their permissibility. Similarly, this

Court in that decision’s footnote 19 also noted that the

Military, Naval, and Air Force Academies permit

“minimum essential adjustments” to the physical

standards required for female cadets “because of

physiological differences between male and female

individuals.” United States v. Virginia at 550 n.19

(quoting 10 U.S.C. § 4342).

Further, in Tuan Anh Nguyen v. INS, 533 U.S. 53

(2001), this Court acknowledged differential treatment

of federal immigration laws with respect to U.S.

citizenship to a child born outside of the United States

to unwed parents. If the mother is a U.S. citizen, the

child automatically acquires U.S. citizenship. But if

only the father is a U.S. citizen, the Immigration and

Nationality Act requires additional criteria to be met

for the child to inherit that citizenship. Justice

Kennedy reasonably concluded:

To fail to acknowledge even our most basic

biological differences ... risks making the

guarantee of equal protection superficial, and

so disserving it. Mechanistic classification of

all our differences as stereotypes would

operate to obscure those misconceptions

and prejudices that are real.

The

distinction embodied in the statutory scheme

here at issue is not marked by misconception

9

and prejudice, nor does it show disrespect for

either class. [Nguyen at 73 (emphasis added).]

The Fourth Circuit’s decision, if allowed to stand,

could lead to distortion of federal laws, such as the

INA provisions at issue in Nguyen, whereby a

transgender man who is a citizen could give birth

abroad, and the child would not receive the

streamlined citizenship provisions for a citizen mother.

C. Who Is Similarly Situated When It Comes

to Sex-Segregated Facilities?

The Fourth Circuit ruled that a biological female

who self-identifies as a male is similarly situated in all

material respects to a cisgender biological male. If the

Fourth Circuit’s decision is allowed to stand, why

would the same logic not allow a white person to selfidentify as a (trans-racial) black person to claim Equal

Protection coverage, leaving Equal Protection

jurisprudence in a terrible mess? Then, Equal

Protection could be triggered by anyone who chooses to

self-identify into a protected class or a quasi-protected

class, merely based on subjective “feelings.”

Viewed another way, if transgender individuals

are considered to be differently situated from both

males and females, they should be provided their own

restroom comparable to what males and females are

separately provided. Then the claim of discrimination

disappears because that is the essence of what the

school board did when it created additional unisex,

single-person restrooms, providing additional privacy

for those who need or desire it.

10

The petition should be granted to reverse the lower

court’s decision because a school prohibiting a student

from using the restroom designated for the opposite

biological sex does not violate the Equal Protection

Clause or Title IX. Moreover, Title IX’s exception for

separate “living facilities” was never challenged.

II. SPECIAL RIGHTS FOR TRANSGENDER

PERSONS CAN BEST BE ASSERTED, AND

CANNOT EFFECTIVELY BE OPPOSED,

U S I N G THE FO U R TH C I R C U I T ’ S ’

“NEWSPEAK.”

The Fourth Circuit decision exuded favoritism for

Gavin Grimm on every page. It discussed every aspect

of her journey from girl to boy, with the court

describing its own decision to compel the School Board

to cater to her feelings as a “resounding” victory for

her. Grimm at 593. It adopted all of the terminology

of the Grimm briefs. Her female nature was only her

“assigned sex” or “birth assigned sex.” Id. at 593-94.

She suffered from “stigma.” Id. at 593. “[B]eing

transgender is natural and is not a choice.” Id. at 594.

She faced “unique challenges.” Id. at 597. The Court

accepted as reasonable that she felt “‘anxiety and

shame’” using the bathroom at the nurse’s office. Id.

at 598.

The parents who objected to her use of the boys’

room “vehemently opposed” allowing it. Id. at 599.

Among the “ugly” comments was that Grimm’s gender

was a “choice” as was the statement by a “former”

lesbian (with the court below putting the word former

in quotation marks as if to say that there is no such

11

person), that her lesbianism was an addiction from

which Jesus Christ set her free.2 Id. at 599. While

anything that Grimm “felt” was treated with care, the

personal religious testimony of the witness was treated

with animus. The court asserted transgenderism was

“not a psychiatric condition,” but at the same time,

reported that transgender persons are nine times more

likely to attempt suicide than the general population.

Id. at 594.

As Judge Niemeyer stated, the fact that the

majority opinion devoted over 20 pages to her

transgender status physically and psychology, revealed

“its effort to effect policy rather than simply apply

law.” Id. at 636-37 (Niemeyer, J., dissenting). When

court decisions are dominated by policy arguments, it

justifies an explanation of the other side of that

argument. And when a court decision is expressed in

a language that favors one side of the case, some

analysis is required.

In his novel 1984, George Orwell explained in a

fictionalized setting how changing the language

changes thinking. Orwell called this official language

of Oceania “Newspeak.” In his essay “Politics and the

English Language,” Orwell elaborated on this

technique, explaining “[I]f thought corrupts language,

language can also corrupt thought... This invasion of

one’s mind by ready-made phrases ... can only be

2

Amici herein, David Arthur, lived for two decades as a

homosexual and trans person and testifies that he was delivered

by his faith in Jesus Christ. See D. Arthur, “A Former

Transgender Opposes Transgender Rights,” (Mar. 26, 2021).

12

prevented if one is constantly on guard against them,

and every such phrase anaesthetizes a portion of one’s

brain.”

The Circuit’s opinion below refers to plaintiffappellee Gavin Grimm, who everyone concedes is a

biological female, by using the male pronouns “he” and

“him.” Thus, even before the first word of analysis,

and without any explanation, the court below accepts

the premise of the lawyers for Gavin Grimm that a

female should be referred to as a male. At that point,

the plaintiff is halfway home. (This amicus brief

resists Newspeak by using female pronouns to refer to

the once, now, and forever female respondent — Gavin

Grimm.)

Until very recently, it would be possible to address

the public policy problem presented in this case in

honest, direct, and realistic terms using words

according to their ordinary public meaning. Today,

language is being changed, as illustrated by the court

below, and such “plain speak” is no longer accepted.

Indeed, even to discuss the problem of transgender

persons in the way it would have been discussed just

a few years ago sounds jarring to the collective ears of

a woke culture. This is no accident. To illustrate the

point, consider the following two approaches: first,

how such a person would be viewed historically — and

in a way that millions of “politically incorrect”

Americans still view the issue; then, how changes in

language altered the lower court’s thinking and

decision-making.

13

A. Addressing Transgenderism in Plain

Speak.

Local school boards are responsible for the

education and safety of each student and they should

not be ordered by elitist judges (who often send their

children to private schools) to create dangerous and

sexualized environments in which students are to be

educated.

Every person is born a male or a female.3 Genesis

5:2; Matthew 19:4. A girl who identifies as a boy is not

a boy who was born into a girl’s body by mistake.

Sexual orientation may be a choice, but no one can

choose their sex — that was chosen for every person at

the moment of conception, not assigned by a doctor at

the moment of birth. It is binary. It is not arbitrary.

These are scientific facts that have been known

throughout millennia, worldwide. They are not

opinions.

A girl who doesn’t like to play with dolls is no less

a girl. Not everyone is the same, but we are all created

3

The tiny number of persons born with atypical sex

characteristics does not change the fact people are born male or

female. Sex is not just about anatomy. Every cell reflects the

difference between a male and a female. See T.M. Wizemann,

edt., “Every cell has a sex,” Exploring the Biological Contributions

to Human Health: Does Sex Matter? (National Academies Press:

2001). The percentage of intersex persons is estimated to be 0.018

percent, although advocates of transgender rights often use the

fraudulent estimate of 1.7 percent. See L. Sax, “How common is

intersex? A response to Anne Fausto-Sterling,” The Journal of Sex

Research (Aug. 2002).

14

in the “image” and “likeness” of God. Genesis 1:26.

Even if the opposite sex behavior is extreme, such a

person is probably just going through what has been

forever described as “a phase.” Many people had

confusion about sex while growing up. Studies of

transgender children have shown that anywhere from

65 to 94 percent eventually ceased to identify as

transgender.4 If the “orientation” persists, it may

require counseling to affirm that acting on what a

person “feels” at any time, particularly during

childhood, puberty, and adolescence, gives a person no

objective standard by which to lead their lives. There

are studies showing that the brain is not fully

developed until a person reaches the age of 25.

The rational part of a teen’s brain isn’t

fully developed and won’t be until age 25 or

so.

In fact, recent research has found that

adult and teen brains work differently. Adults

think with the prefrontal cortex, the brain’s

rational part. This is the part of the brain that

responds to situations with good judgment and

an awareness of long-term consequences.

Teens process information with the

amygdala. This is the emotional part.

[Teens] weren’t thinking as much as

they were feeling. [J. Campellone, M.D. &

R.K. Turley, RN (medical reviewers)

“Understanding the Teen Brain,” Univ. of

4

J. Brooks, “The Controversial Research on ‘Desistance’ in

Transgender Youth, KQED (May 23, 2018).

15

Rochester Medical Center Health Encyclopedia

(emphasis added).]

The role of parents, teachers, counselors is to urge

the child or teen to take a deep breath and stop

obsessing about themselves. Volunteer at a soup

kitchen. Focus on studies and hobbies. Society

certainly must not be so solicitous of such “feelings” as

to affirm and encourage them. Encouraging students

to believe the lie that they can change sex only

worsens the problem the student is experiencing.

The use of dangerous hormone therapy or surgery

for minors is nothing short of child abuse and should

not be permitted. Certainly the state has no authority

to tell parents that their children must accept

therapies to change their sex.5 Find a way to adjust to

your being a girl, because you cannot change it — just

like you cannot be taller just because you want to be.

Moreover, there is a spiritual component to this

understanding, and it is revealed in Holy Writ. God

chose your sex, and God does not make mistakes.6 God

created you as an individual. Sex is a powerful force

in life, and that is no surprise to God, as he created

that drive as well. But we live in a fallen world. Even

if you were a victim of sexual abuse, that abuse is part

of your history, but it does not define you. Even if you

5

“Father faces arrest and jail time for trying to stop doctors from

transitioning his middle school daughter to a boy,” The Gateway

Pundit (Mar. 13, 2021).

6

See Psalm 139:13-14, 16 (NIV).

16

have strong “feelings,” you cannot yield to act on all of

them. Self-control is essential to live a successful life.

Lastly, each young person has a sense of modesty,

which mothers particularly understand.7

The

responsibility of parents and school officials is to

respect and protect that modesty. In recent years, it

seems that our elitist influencers, and many in public

education efforts, seek to make children immodest,

sexualizing children rather than protecting them,

making them more likely to be exploited by adults —

even by teachers.8 “Childhood used to be a time of

innocence. But as our culture has become more and

more sexualized, children have become the casualties

of adult exploitation.” [F. Kao and A. Jones, “We

Must Fight the Sexualization of Children by Adults,”

Heritage Foundation (Oct. 5, 2019) (emphasis added).]

7

“When Do Children Feel Modesty?” You Are Mom (Mar. 15,

2019) (“Children feel modesty by age four. They start to

experience shame, and this mixes with their desire for autonomy.

In addition, they don’t want strangers to look at them. Also, they

don’t like physical exams or questions about their bodies.”).

8

See B. Palmer, “How many kids are sexually abused by their

Teachers: Probably millions,” Slate (Feb. 8, 2012).

17

B. Addressing

Newspeak.

Transgenderism

Using

Now, how would the above “plain speak”

arguments be made using Newspeak?9 Well, they can’t

be made. The Fourth Circuit opinion appears to arise

from the following presuppositions that defy rebuttal.

1. A biological female who identifies as a male is

a male born into a female’s body. (The adjective

“biological” must always be used before male and

female when referring to this outmoded, artificial

construct of society.)

2. You can choose your sex gender, and change

sexes genders. (Note: remember never to argue using

the word sex, because it is so clearly false that you can

9

Leading the way in developing transgender Newspeak are the

evolving views of the American Psychiatric Association relied on

by the Fourth Circuit. It recently issued a statement explaining

how the terminology in that organization’s own Diagnostic and

Statistical Manual of Mental Disorders has evolved over the past

four decades.

[T]he first two editions of DSM contained no

mention of gender identity. It was not until 1980

with the publication of DSM–III that the

diagnosis “transsexualism” first appeared....

With the release of DSM–IV in 1994,

“transsexualism” was replaced with “gender

identity disorder in adults and adolescence” in

an effort to reduce stigma.... With the publication

of DSM–5 in 2013, “gender identity disorder” was

eliminated and replaced with “gender

dysphoria.” [American Psychiatric Association,

“Gender Dysphoria Diagnosis.” (emphasis added).]

18

change your sex, so we will substitute “gender” for

“sex.” It doesn’t matter that gender just yesterday was

thought of as being short for “grammatical gender,”

which is a linguistic term by which nouns in several

languages were classified as masculine, feminine, or

neuter.10)

3. Persons are not limited to the “binary” options

of being males and females. Gender is just arbitrarily

assigned at birth. And, there are an infinite number

of choices:

Agender, Gender Nonconforming,

Cisgender, Transgender, Genderqueer, Gender fluid,

Non-Binary, Intersex.11

(No doubt this Court

eventually will be asked to decide if each “gender”

deserves its own bathroom.)

4. Each person — even though a child or

adolescent — must have the right to act on their

feelings, no matter what they are, and no matter how

the world must bend to accommodate how they feel.

Opposing views, Biblical counseling, and other

counseling designed to have the person live at peace

with his/her/etc. gender are “ugly.”

10

The new, expansive use of “gender” is reminiscent of Lewis

Carroll’s telling of a conversation between Humpty Dumpty and

Alice: “When I use a word,” ... “it means just what I choose it to

mean—neither more nor less.” ... “When I make a word do a lot of

work like that,” said Humpty Dumpty, “I always pay it extra.” If

that rule were followed, the word “gender” would be very well paid

indeed.

11

See S. Saint Thomas and T. Andrews, “12 Gender-Related

Terms You Should Know and Understand: Consider this your

cheat sheet,” Cosmopolitan (Oct. 29, 2020).

19

C. Judicial Law Making.

Once the Fourth Circuit decided the issue

presented, it did not just resolve a “case” or

“controversy” between the parties, but it, in effect,

enacted a law which will govern all government

schools, and possibly private and sectarian schools as

well, at least in Virginia, West Virginia, Maryland,

North Carolina, and South Carolina. And, other courts

no doubt will not limit its application to the facts of

this case. It will require a school to allow a girl to use

a boy’s locker room and showers as well as restrooms.

And, it will require that a boy be allowed to use a girl’s

bathroom, locker room, and showers. Additionally, it

will not require any particular proof of cross-sex

change, such as seeking counseling, undergoing

hormone therapy, or undergoing surgical procedures.

It likely will not require the change of sex on a birth

certificate or a driver’s license, or any period over

which the person’s “feelings” are manifested, or

preventing a student from exhibiting “gender fluidity”

in switching back and forth, depending on which

shower the student wants to use that day.

George Orwell’s essay quoted supra contended

that, “political speech and writing are largely the

defense of the indefensible.... Thus political language

has to consist largely of euphemism, question-begging

and sheer cloudy vagueness.” A judicial decision that

equates “sex” with “gender” that applies legal

principles based on subjective feelings, that affirms for

America the notion that one can change one’s sex, and

that directs that the interests of all other persons be

20

subordinated to one person’s dysphoria, cannot be

allowed to stand.

III. THE FOURTH CIRCUIT’S DECISION

OPENED THE DOOR TO SOCIETAL CHAOS

AND HARM TO YOUNG PEOPLE.

A. Sex-Rights Litigation Has Proceeded

Down a Slippery Slope.

As petitioners point out, this Court has already

recognized once that the Title IX issue presented in

this case warrants review. Pet. Cert. at 15-16. These

amici agree that this petition poses an important

question of federal law that has not been, but should

be, settled by this Court. See Supreme Court Rule 10.

But in addition, the importance of reviewing the

Fourth Circuit’s decision is enhanced by an

understanding of how sex-based rights jurisprudence

has developed in recent years.

Sex rights activists have a long history of pursuing

revolutionary change through a series of gradual,

incremental “reforms,” all the while hiding their

ultimate, more radical objectives. In the 1980s, the

only request made by these activists was to

decriminalize homosexual conduct — to take the state

out of the bedroom. Such laws against sodomy were

rarely enforced, but stood as a moral statement of the

society against what Blackstone called “crimes against

nature,” Blackstone, IV Commentaries on the Laws of

England, chapter 15. Indeed, this Court upheld the

constitutionality of a Georgia state law criminalizing

homosexual sodomy based on Justice White’s

21

reasonable conclusion that there was no “fundamental

right to engage in homosexual sodomy.” Bowers v.

Hardwick, 478 U.S. 186, 191 (1986). However, the

Bowers precedent was swept away not many years

later in Lawrence v. Texas, 539 U.S. 558 (2003) in a

decision which relied heavily on social science studies

who embraced the homosexual rights cause.

Although Courts never go back to see if they had

been fooled by litigants, there is good reason to believe

that Lawrence v. Texas was a contrived case, staged so

it could reach this Court to impose its will on the

nation. See J. Law, Sex Appealed: Was the U.S.

Supreme Court Fooled? (Eakin Press: 2005). Also,

Norma McCorvey admitted that a fraud upon the

Court had been committed in Roe v. Wade, 410 U.S.

113 (1973).

See N. McCorvey, I Am Roe

(HarperCollins: 1994).

During debates over same-sex “civil unions,”

LGBTQ activists insisted that such unions would not

necessarily lead to legalized homosexual “marriage,”

but they did when the Biblical definition of marriage

(see, e.g., Genesis 2:24) was overturned by this Court in

Obergefell v. Hodges, 576 U.S. 644 (2015).

During debates over same-sex “marriage,” gay

advocates and their allies rejected the “slippery slope”

arguments of conservatives who said that the same

argument used in favor of same-sex “marriages” and

unions would be used to legalize “multiple-partner

unions.” Just a few short years later, the city of

Somerville, Massachusetts acted to recognize

“polyamorous” relationships, “broaden[ing] the

22

definition of domestic partnership to include

relationships between three or more adults.” E. Barry,

“A Massachusetts City Decides to Recognize

Polyamorous Relationships,” New York Times (July 1,

2020). With the successful “gay” revolution as their

model, activists touting “sexual freedom” and “family

diversity” are pushing for “social acceptance for

polyamorous relationships.”

E. Sheff, Ph.D.,

“Polyamory Advocacy: Activists and Organizations

Dedicated to Advocating for Polyamory,” Psychology

Today (Mar. 21, 2016). Just last month, Hollywood, as

a trusted ally of the cultural left, joined the push. See

B. Lang, “Queer Polyamorous Love Story ‘Ma Belle,

My Beauty’ Sells to Good Deed (Exclusive),” Variety

(Feb. 18, 2021). The notorious North American

Man/Boy Love Association (“NAMBLA”) continues to

operate: “NAMBLA’s goal is to end the extreme

oppression of men and boys in mutually consensual

relationships .... NAMBLA is strongly opposed to

age-of-consent laws and all other restrictions which

deny men and boys the full enjoyment of their bodies

and control over their own lives.” See “Who We Are,”

NAMBLA (2011).

Even if “slippery slope” arguments in court are

viewed as fanciful, the Fourth Circuit’s decision, if

allowed to stand, will strike another blow at

conventional, Biblical morality in the culture. It will

sanction the very unscientific notion that people can

change their sex, and that this is the road to

happiness. It will cause many parents, school officials,

and counselors to encourage sex changes using

dangerous and untested drugs and irreversible

surgeries. It will take young people and render them

23

sterile in pursuit of an impossibility. In the historic

battle between Neopagan and Christian Culture, it

will be a victory for the former and a defeat for the

latter. See generally M. Stanton Evans, The Theme Is

Freedom (Regnery Publishing: 1994) at 113-130. And

the Courts, increasingly, will be viewed by many

Americans as a corrosive influence on society,

constitutionalizing public policy issues to transform

this into a thoroughly secular nation, putting us at

risk. See Thomas Jefferson’s warning inscribed on the

wall of the Jefferson Memorial: “Indeed I tremble for

my country when I reflect that God is just: that his

justice cannot sleep for ever.”

B. Sex Change

Dangerous.

Therapies

Are

Highly

Ignored by the court below were the “health risks”

of transsexual surgeries and hormone therapies for

children, including mastectomies to remove a young

woman’s healthy breasts to achieve the flat-chested

look of a man. And yet, such radical procedures are

not only being conducted in leading hospitals on minor

children, but they are also defended fervently by

pro-LGBTQ advocates, who insist that the “rights” and

desires of “trans” minors are preeminent in this

cultural and public policy debate.12 If the fiction of sex

12

Fortunately, in December, the U.K. High Court ruled: “It is

highly unlikely that a child aged 13 or under would be competent

to give consent to the administration of puberty blockers. It is

doubtful that a child aged 14 or 15 could understand and weigh

the long-term risks and consequences of the administration of

puberty blockers.” Bell v. Tavistock, Point 151 (Jan. 12, 2020).

24

change is given encouragement by this Court, it will

share responsibility for the damage inflicted on our

nation’s children, much of which was recently detailed

by Abigail Shrier in Irreversible Damage: The

Transgender Craze Seducing Our Daughters (Regnery

Publishing: 2020).

The following is a sampling of the massive and

often permanent health risks for adolescent and

pre-adolescent children pursuing medically induced

“(trans)gender transitions”:

•

“Testosterone thickens the blood.... There is

some indication that biological women on

these doses of testosterone may have nearly

five times the risk of heart attack than women

have, and two-and-a-half times that of men.”

Irreversible Damage at 169.

•

“Shortly after cross-sex hormones are

introduced, permanent changes result. If a

biological girl regrets her decision and stops

taking testosterone, her extra body and facial

hair will likely remain, as will her clitoral

engorgement, deepened voice, and possibly

even the masculinization of her facial features.

While massive doses of testosterone must be

maintained to continue the full effects of

transition, eliminating testosterone doesn’t

whisk an adolescent back to where she

started.” Irreversible Damage at 170.

“The long-term effects [of “transgender”

testosterone “therapy”] include heightened

rates of diabetes, stroke, blood clots, cancer,

•

25

and, as we’ve seen, heart disease. In general,

mortality risk rises.” Irreversible Damage at

170.

•

“[W]orld-renowned child and adolescent

psychiatrist Christopher Gillberg says he

thinks unproven treatment of

trans-identifying children is ‘possibly one of

the greatest scandals in medical history.’

Professor Gillberg’s neuropsychiatry group at

Sweden’s Gothenburg University ... has called

for an immediate moratorium on the use of

puberty blocker drugs because of their

unknown long-term effects.” J. Van Maren,

“World-renowned child psychiatrist calls trans

treatments ‘possibly one of the greatest

scandals in medical history,’” The Bridgehead

(Sept. 25, 2019).

•

“Currently, there is no conclusive medical

evidence that children who experience gender

incongruence receive long-term benefit from

medical and surgical interventions associated

with ‘gender transition.’... Also, there are

potentially severe long-term safety risks from

pubertal suppression and cross-sex hormone

therapy in children, including infertility,

abnormal bone development, premature

cardiovascular disease and thromboembolic

disease, to name just a few.” Catholic Medical

Association, Letter co-signed by American

College of Pediatricians and Christian Medical

& Dental Association (Mar. 17, 2021).

26

•

The pro-LGBTQ London, U.K.-based Gender

Identity Development Service (“GIDS”) states

in an informational flier: “We do not fully

know how hormone blockers will affect bone

strength, the development of your sexual

organs, body shape or your final adult height.

There could be other long-term effects of

hormone blockers in early puberty that we

don’t yet know about.” (cited in Point 63, Bell

vs. Tavistock High Court decision, Jan. 12,

2020).

•

Plastic surgeon Dr. Patrick Lappert: “I can

reverse masculinizing your nose, I can reverse

masculinizing your jaw; I can reverse

masculinizing your hairline … But I cannot

reverse a mastectomy. All I can do is make

you a new breast mound, but it’s not a breast.

It’s a lump on your chest which looks like a

breast.” Writes Shrier: “The difference

between a healthy organ with biological

capacities—in this case, erotic sensation and

milk production—and a lump of flesh that

resembles it turns out to be pretty significant

to doctors bound by the Hippocratic oath. The

two forms may seem fungible to a layperson.

But according to Dr. Lappert, eliminating

biological capacities merely for the sake of

aesthetics is wrong and—in virtually all other

areas of medicine—strictly verboten.”

Irreversible Damage at 172-73.

27

CONCLUSION

For the reasons stated above, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

JAMES N. CLYMER

CLYMER MUSSER &

SARNO, P.C.

408 West Chestnut St.

Lancaster, PA 17603

Attorney for CLDEF

J. MARK BREWER

BREWER, PRITCHARD

& BUCKLEY, P.C.

770 S. Post Oak Lane

Suite 620

Houston, TX 77056

Attorney for CLDEF

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

JOSEPH W. MILLER

LAW OFFICES OF JOSEPH

MILLER, LLC

P.O. Box 83440

Fairbanks, AK 99708

Attorney for RLAC

GARY G. KREEP

STEVEN C. BAILEY

CALIFORNIA

*Counsel of Record

CONSTITUTIONAL RIGHTS

FOUNDATION

March 26, 2021

932 D Street, Suite 2

Ramona, CA 92065

Attorneys for CCRF