Newman Society Files SCOTUS Brief in ‘Transgender Bathroom Case’
The Cardinal Newman Society filed an amicus curiae brief with the U.S. Supreme Court on Tuesday in the case Gloucester County School Board v. G.G. arguing against the Obama administration’s attempt to impose radical “transgender” policies on schools that threaten religious freedom.
“We are grateful for the support of those who have joined us and the First Liberty Institute in filing this brief, especially the leaders of several religious schools and colleges that make so many invaluable contributions to American society,” said Cardinal Newman Society President Patrick Reilly. “The Obama administration’s ideological redefinition of Title IX is already being used to threaten and harm both religious and secular education, and the situation will only get worse if the Court does not intervene.
“As long as federal agencies are allowed to dispense with procedure and redefine laws that Congress clearly intended for other purposes, any White House administration will be free to impose ideology or unsound science without the rule of law,” Reilly continued. “A positive ruling in this case would be a strong response to the Obama administration’s abuse of power and disregard for the religious freedom of all Americans, especially educators.”
Although the case revolves around the Gloucester County Public Schools in southeastern Virginia, it has great significance to religious educators, for whom the redefinition of Title IX poses serious problems. “Reading ‘sex’ to include gender identity raises significant constitutional concerns when applied to religious persons, religious organizations or religious colleges that receive Title IX funds,” the brief argues.
The brief was authored by expert attorneys of the First Liberty Institute, a nonprofit law firm in Plano, Texas, dedicated to preserving religious freedom. Joining the Newman Society in filing the brief were several faithful Catholic colleges recommended in The Newman Guide, including Aquinas College (Tenn.), Benedictine College, John Paul the Great Catholic University, The Thomas More College of Liberal Arts, Thomas Aquinas College, Wyoming Catholic College, and the online Ignatius Angelicum Liberal Studies Program.
Eight Catholic schools also joined the brief that are recognized by the Newman Society’s Catholic Education Honor Roll: Catholic Memorial High School in Waukesha, Wis.; Holy Rosary Academy in Anchorage, Alaska; Notre Dame Academy in Toledo, Ohio; Notre Dame Regional High School in Cape Girardeau, Mo.; Pius X Catholic High School in Lincoln, Neb.; St. Joseph Academy in San Marco, Calif.; St. Theodore Guerin High School in Noblesville, Ind.; and Seton School in Manassas, Va.
The Association of Christian Schools International and several individual educators were also among the signers, including Dr. Francis Beckwith, professor of philosophy and church-state studies at Baylor University; Dr. Thomas Farr, associate professor of the practice of religion and international affairs at Georgetown University and director of Georgetown’s Religious Freedom Project; Dr. David Lyle Jeffrey, distinguished professor of literature and humanities at Baylor University; Dr. Byron Johnson, Baylor University’s distinguished professor of the social sciences and founding director of the Institute for Studies of Religion; and attorney Edward Morse, the McGrath, North, Mullin and Kratz Endowed Chair in Business Law at Creighton University School of Law and a senior affiliated scholar at Creighton’s Institute for Economic Inquiry.
Last September, the Newman Society, several Newman Guide-recommended colleges, the National Catholic Bioethics Center and Dr. Byron Johnson filed a brief authored by First Liberty Institute urging the Supreme Court to hear Gloucester County School Board v. G.G..
At the time the brief was submitted, Reilly stated, “Instead of protecting women, the Obama administration wants to force both secular and religious schools to violate women’s privacy, compromise their safety and deny the God-given sexuality of both males and females.” He asserted that regardless of how the Court rules, Catholic colleges and schools should resist implementing policies that embrace gender ideology “because it contradicts Church teaching.”
“Instead, we have recommended human sexuality policies that help protect schools’ Catholic identity and support their mission to form students in Christ,” Reilly said.
The Gloucester County School Board was sued in June 2015 by a biologically female student who was denied use of a school’s male restroom facilities. A federal district court upheld the school board’s policy on privacy concerns. But the U.S. Court of Appeals for the 4th Circuit ruled against the school board in April 2016, citing a private letter from a Department of Education official to an attorney inquiring about the Gloucester school board policy. The letter confirmed the Obama administration’s reinterpretation of “sex” in Title IX to protect “gender identity.” The Supreme Court put a temporary hold on the 4th Circuit’s decision.
Although Title IX was intended to protect women from discrimination, especially with regard to ensuring athletic opportunities for women at U.S. colleges, the Obama administration is now using the law to demand gender identity inclusion and dismantle education policies that are naturally determined by a person’s biological sex. The reinterpretation affects privacy in locker rooms, bathrooms and student residences, and it undermines the progress under Title IX by allowing biological males to compete in women’s sports.
It’s clear that when Title IX was passed by Congress in 1972, references to sex discrimination referred only to biological sex and not gender identity. Congress has never amended Title IX to include gender identity protection, but that hasn’t stopped the Obama administration from issuing threats to schools that refuse to comply with its interpretation of the law.
By failing to follow proper lawmaking procedures, the government deprived concerned parties of the ability to “speak to government officials and reach their fellow citizens through public hearings on this matter, and help regulators think through the consequences of such a policy,” especially concerning religious freedom, argues the brief from the Newman Society, colleges and other parties.
The administration’s reinterpretation of Title IX in 2014 has led to national campaigns by LGBT activist groups targeting faith-based educational institutions as “bigoted” for requesting religious exemptions to the law. Only a handful of Catholic colleges that receive federal funds requested the exemptions. They explained in letters to the Department of Education Office for Civil Rights why being forced to violate Church teachings regarding human sexuality would compromise the religious mission of their institutions.
Following the Obama administration’s lead, lawmakers in California proposed discriminatory legislation targeting the religious freedom of Catholic and other faith-based colleges in the state. The Newman Society joined in a multi-faith statement in August 2016 opposing the bill, which led to significant amendments.
It’s unclear at this point what actions the incoming Trump administration will do to address the Obama administration’s protection of gender identity under Title IX. A date for oral arguments before the Supreme Court in the Gloucester case has not yet been scheduled.