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If ‘Sex’ Is a Feeling, Why Not Age?

Thankfully, the Minnesota Court of Appeals recently rejected the claimed right of a man to change the date of his birth on his birth certificate because he “feels most comfortable around people who are 5-15 years younger” and “identifies as an age significantly younger than his chronological age.” The birth date change, he said, would allow him to “develop a more cohesive sense of self.” But we have to ask, “If sex is not now a biological fact, but a feeling, why should age be a chronological, historical fact?”

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What the Texas-Tennessee Bathroom Decision Means

This week a federal district court judge ruled in the “bathroom” lawsuit filed by Texas and Tennessee and several other states. The lawsuit involved the legal effect of the “guidance letter” sent by the Obama administration telling public schools and colleges to allow bathrooms and locker rooms to be used based on a person’s psychological self-identification of their sex. He ruled that the letter had no force of law. What does the decision mean relative to Tennessee?

What the Decision Means

The decision means, for now, that Tennessee does not have to have a psychologically based, self-defining sex policy when it comes to bathrooms and locker rooms. It is still okay to use biology to define who uses which restroom or locker room.

The good news is that the court said the word “sex” in Title IX of the federal law is not ambiguous and that if the Obama administration wants to re-define the word, it needs to follow the rules for changing the law, not send letters. This was a win for the rule of law.

However, there are also a couple of things the decision does not mean that you need to understand.

What the Decision Does Not Mean, Part I

First, it does not mean that the issue is over and decided. The Obama administration will surely appeal, though a Trump administration may have the head of its Department of Justice drop the appeal. However, even if that happens, there is still the case out of Virginia that liberal lawyers control and that the U.S. Supreme Court has been asked to review. We don’t know yet if the Court will hear it. To put it in football season parlance, a win is a win though the “season” is not over.

What the Decision Does Not Mean, Part II

Second, the decision doesn’t mean the safety and privacy of your child (or grandchild) is now protected. One organization in another state said, “When parents send their children to school today, they can focus on education and rest assured that their privacy and safety is protected.”

To make sure I understood that statement correctly, I asked, “Does your state have a law that prohibits public schools from having a local policy that allows students to self-identify and choose the bathroom or locker room they want to use?” The answer was “no.”

That means the school a Texas child attends could have a policy that does not protect privacy and safety by using the objective criteria of biological sex for bathrooms and locker rooms.
And the same is true in Tennessee. It didn’t have to be true, but it is true.

Why Your Child Is Not Protected

The reason the privacy and safety of your child or grandchild is not protected is because the bill this spring that would have prevented a local school from having a psychologically based, self-defining sex policy for bathroom and locker room use was killed by the bill’s House sponsor.

Some will say that the victory in court means that not passing that bill was the right thing to do. I disagree.
Those who say this decision shows the wisdom of killing the bill probably mean that the ACLU no longer has a legal tool—the guidance letter—to use to threaten our schools with lawsuits if they don’t adopt a psychologically based, self-defining sex policy. I agree, but that misses the point in two regards.

First, if it undermines the ACLU’s ability to argue that a biologically-based sex policy for bathrooms and locker rooms is wrong, then it also undermines the lawsuit some legislators worried about Tennessee getting hit with if they passed the bill. The decision is not only bad for the ACLU in a lawsuit in Texas, but it is also bad for them if they sued Tennessee!

Second, and more importantly,Tennessee schools can still adopt a psychological, self-defining sex policy for use of bathrooms and at least some have.

If you think each school system should have the authority to redefine sex for the children in their school system—if you think the meaning of the word “sex” should vary from place to place and is not a universal concept—then killing the bill (or voting against it as some did) was the right thing.

However, I happen to think, as do a large number of Tennesseans, that the word “sex” is rooted in biology, sex is important, and redefining sex is not one of the things local schools should have the authority to do.
Such a limitation on local authority is not a strange idea. There are all kinds of state rules that limit the authority of local school systems. Shoot, we even limit whom they can hire and fire!

So don’t be fooled by those who say the Texas decision protects our children from bad bathroom and locker room policies in our local schools or by those who say the decision means not passing the law in Tennessee was a good thing.

If you don’t want a 13-year-old girl to find herself with a boy in her bathroom or locker room, it still would have been good if the “bathroom bill” had passed.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Undoing of Title IX

Title IX of the 1972 Education Amendments was passed to ensure equal opportunities in education for biological females. It has been applied in numerous contexts, from increased allocation of funds to women’s athletics to allowing women to have housing and dormitories that are comparable in quality to those provided to male students. Title IX addressed an important need: the unequal treatment of biological female students in relation to the treatment of biological male students.

However, the entire purpose and effect of Title IX may have just been nullified by a recent federal court decision that held the definition of “sex” is “susceptible to more than one plausible reading.” The court declared the relevant statute, which says schools “may provide separate toilet, locker room, and shower facilities on the basis of sex,” is “ambiguous” and could be read to encompass biological males who identify as females.

Following the logic of the Fourth Circuit Court, Title IX can now be considered to ensure equal opportunities in education for girls and boys who identify as girls. The Obama administration did so in recent guidelines it sent to all public school districts on the subject. Yet in statutory construction, words have singular meaning throughout, so if the word “sex” is changed in the section related to bathrooms, it is changed for the entire statute.

The dissent picked up on this glaring problem, and wrote that such a reinterpretation of the term “sex” as applied to the whole of the statute would “render Title IX and its regulations nonsensical.” The majority even partly conceded that point, saying, “We agree that ‘sex’ should be construed uniformly throughout Title IX and its implementing regulations.”

This is an implicit acknowledgment that they have altered the entire statutory scheme of Title IX. Thus, if “sex” now means gender identity and not biological sex, then there is no real, functional purpose left for Title IX. An anti-discrimination law that affords special protection for women but also allows men to garner the same protection under the same law is absurd and illogical.

If the legal status of protected classes like race and sex are now based on an identity and not one’s actual race or sex, then it is reasonable to question the need or efficacy of all anti-discrimination laws. Any connection between law and reality has been severed. If a male can legally become a female by mere identification, what is to prevent someone from becoming a different race or age if he or she identifies as such?

We are now entering an era in which reality has become subjective, not in the Platonic sense, but as actual legal status having the force of law. The legal system is at a tipping point: is it going to address objective realities or be subject to the vagaries of judges deciding if someone’s identity trumps another’s anatomy? The age-old maxim of “justice is blind” is now a relic, as Lady Justice no longer wears a blindfold and judges are now actively picking and choosing whose liberties they value more by mandating compliance of the many to the will of a few.

This decision is yet another in a string of cases in which judges place their personal policy concerns over legal reasoning, statutory language, and, incredibly, students’ rights to bodily privacy. Results-oriented jurisprudence causes chaotic results in a precedent-based system because there is no legal rhyme or reason for how the judge reached a conclusion. This leaves states to sort out the collateral damage that comes with implementing a judicial decision without a coherent legal framework. In this case, two judges redefined “sex” under Title IX to get the result they wanted without addressing the ramifications of changing what it means to be a woman and the new effect that now has on Title IX.

The same justice system that provided liberty to millions with landmark anti-discrimination laws is now undermining those very laws by investing legal status in one’s psychology at the expense of his or her biology. The practical result is that vital anti-discrimination laws like Title IX may be rendered useless by the ironic efforts of those preaching “inclusion” and “tolerance.”

Zack Pruitt is a Legislative Liaison with Alliance Defending Freedom and formerly FACT’s Director of Public Policy.

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Will Gender Identity Go the Way of Sexual Orientation?

I have to hand it to liberals and sexual libertines—they come up with great words, and when those words develop certain connotations that may not be helpful to their cause, they change the definition. And if their word “gender identity” takes the same course as “sexual orientation,” then we’re headed for chaos.

You may recall, if you’re old enough, that those who engaged in sex with a person of the same sex were once called sodomites, not pleasant imagery in a culture familiar with Sodom and Gomorrah.

Then the word “homosexual” came along. That word, too, carried a negative connotation. Having sex with a person of the same sex, which is what the word meant, just seemed unnatural to most people. In fact, some state’s referred to such sex as “crimes against nature.”

Then came the word “sexual orientation.” As memory serves me, at first it simply was a nicer sounding word for homosexual behavior. In fact, for many of us, “sexual orientation” was really synonymous with “homosexual.”

Consequently, LGBT advocates came up with the brilliant strategy of rebranding the word “sexual orientation” and joining it at the hip with the evil word “discrimination.” The word “sexual orientation” morphed so that it no longer applied only to homosexuals, but to all persons; everyone, it was now said, had a sexual orientation and none was more “natural” than any other. This meant the laws prohibiting discrimination based on sexual orientation now ostensibly protected everyone.

The question is whether the word “gender identity” will someday soon morph, too? Perhaps it must if the gender wars are to be “won.”

Today, “gender identity” seems to carry the connotation of “transgender,” a person with a biological and/or anatomical structure reflecting one sex but who wants to be identified by the sex they think of themselves as being in their head. Even as the word “sexual orientation” was once synonymous with the word homosexual, “gender identity” is currently synonymous with transgendered persons.

The problem sexual libertines have is that most people are not confused about their sex and most people still want their privacy in those intimate settings in which persons of the opposite sex may be present. What has created the firestorm of opposition is the fact that a very small percentage of the population wants everyone else to adapt to them.

How can the gender identity crowd convince the overwhelming majority that laws against gender identity discrimination are good for them, too? What if the word “gender identity” sheds its narrow connotation and, as happened with sexual orientation, becomes something that everyone has? Now a law prohibiting discrimination based on gender identity ostensibly protects everyone! But there are two problems with that.

First, such a view of gender identity means no one is protected and Title IX’s protections against discrimination become meaningless. If, as a man, I can identify as a man or a woman (or something in-between), then the prohibition on gender identity discrimination means a state or business can no longer have a shower limited to women and to men who think they are women. Such a law would ban me from showering with the ladies simply because I “identify” consistent with my biology.

Such a law would simultaneously discriminate in favor of those who identify contrary to their biology, letting them use the women’s shower, and discriminate against those who identify consistent with their biology, not letting them use the same shower. Ironically, such a law essentially says I have to identify a certain way in order to do certain things, and that’s discrimination based on identity!

If we all have an “identity” and you can’t discriminate based on identity, then all you guys who can’t make the UT men’s basketball teams, don’t let the Lady Vols discriminate against you just because you “identify” consistent with your biology! You don’t even have to fake thinking you’re a woman anymore. Title IX is gone.

But the second problem is all binary distinctions between the sexes are gone, not just Title IX. C.S. Lewis ominously spoke of this day years ago in his book The Abolition of Man. Here is what he said regarding man’s “conquest of Nature”:

The final stage will come when Man, by eugenics, prenatal conditioning, and by an education and propaganda based on a perfect applied psychology, has obtained full control over himself. Human nature will be the last part of nature to surrender to Man. The battle will then be one. We shall have “taken the thread of life out of the hand of Clotho1” and be henceforth free to make our species whatever we wish to be. The battle will indeed be won. But who, precisely, will have won it?

The plan has all come together. Eugenics, with artificial reproduction, selective abortions, and gene manipulation virtually unrestrained, is now fully in place. Obama’s “guidance letter” is making sure the educational program is in place. Pop psychology today is providing the necessary assistance and, of course, the propaganda from the mainstream media has been in place for years.

Good point, Mr. Lewis. I wish we’d all read your book sooner, because we’re all about to lose.


  1. Clotho, in ancient Greek mythology, was responsible for “spinning the thread of human life.” She also made major decisions, such as when a person was born, thus, in effect controlling people’s lives.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Tipping Point

In 1996 Malcolm Gladwell wrote an article called “The Tipping Point” (later a book), an analysis of how social behaviors reach a certain point and then “take off.” America is coming to a legal “tipping point” that will either restore the rule of law and the Constitution or destroy them both.

Last month I wrote about the first shot fired in the new “Civil War” when Gov. Cuomo banned all non-essential travel to North Carolina because it chose to designate multi-occupancy public bathrooms according to biological sex rather than gender identity. In the last ten days, the volleys in this new war kept coming.

Last week fifty-one families sued the Chicago public school system for its gender-bending bathroom policy, arguing that it violated their children’s constitutional right to bodily privacy that previous courts have found in the Constitution.

Fast-forward to this week. On Monday the state of North Carolina sued the United States and its Department of Justice on the grounds that the department has no authority to assert that the prohibition in the 1964 Civil Rights law against discrimination based on biological sex now means “gender identity,” the sex you think you are in your head. The Department of Justice immediately sued the state back.

The next day North Carolinians for Privacy, an unincorporated non-profit association, sued the U.S. Department of Justice and the U.S. Department of Education for, among other things, asserting as a “rule” its sex-means-gender-identity philosophy is unconstitutional because that “rule” was never lawfully adopted as a real rule in accordance with the administrative procedures act.

And while not widely discussed or appreciated, the lawsuit our organization has filed has added to this legal conflict. It asks our state courts whether the Supreme Court’s Obergefell decision on same-sex “marriage” invalidated our state’s marriage license statute or amended it, statutory amendments being something a court clearly has no constitutional authority to do. The Supreme Court had to do one of the other, because certainly no new statute has been enacted by the General Assembly that would authorize same-sex “marriage” licenses.

What does all this mean? It means the Supreme Court’s legitimacy is about to reach a tipping point.

In 1992 Justice Souter, in sustaining the constitutional validity of Roe v. Wade, said, “If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.” He added, “The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the nation to which it is responsible.”

All these lawsuits are putting the Court on a collision course with its legitimacy. They are putting the Court in a position in which it must begin to overrule, in some instances, literally hundreds of years of constitutional precedent and established norms of constitutional and statutory construction in order to reach the result its majority philosophically agrees with, which is the Obama administration’s position.

In the next year or two, these lawsuit will force the Court either to return to the rule of law and stop killing the Constitution by trying to make it a “living instrument” or kill the rule of law, kill the Constitution, and assert its supremacy over all things governmental in our nation. In other words, the Court is about to reach the legitimacy tipping point.

Personally, I suspect that the Court will reach the results it desires, not those that the Constitution and its precedence would require. That is when we will find out which of two tipping points Americans will have reached.

Will we have gotten to the point we just don’t care so long as we have a job and enough things to entertain us, or will we then realize the truth of what Justice Scalia said last summer—we are no longer our own rulers, but we are ruled by “a majority of the nine lawyers on the Supreme Court?” Only if we reach the latter tipping point will Americans take it upon themselves, as Scalia said, to remind the Court of its “impotence” and demand that Congress do something about it.

The tipping point is coming, America. What side will you tip toward?

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

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