Article Jan 19, 2017

ERLC submits amicus brief in important student privacy and religious liberty case at the Supreme Court

The ERLC has submitted an amicus brief in an important case affecting the future of student privacy, religious liberty, and parental rights in local schools that is set to be argued at the Supreme Court this Spring.

In Gloucester County School Board v. G.G., the court is set to offer an opinion on two main issues: (1) Whether courts should defer to a government agency’s interpretation of a statute; (2) whether the Department of Education’s interpretation of Title IX’s sex discrimination prohibition lawfully allows for “gender identity” to fit into the definition of sex discrimination.

As with many Supreme Court cases, the issues for consideration often seem narrower than they really are. But in fact, this case is supremely important because it will determine the scope, terms, and venue of the transgender debate in public settings for years to come: Will transgender advocates be required to convince lawmakers to pass legislation in Congress, or will the Supreme Court effectively pass this legislation from the bench?

The case arises as the result over a conflict involving a biological female (“G.G.”) who identifies as a transgender male who desires to use a men’s restroom facility in a public school.

The case comes during an immense debate throughout the United States over how best to accommodate persons who believe their gender identity to be at odds with their biological sex. The outgoing Obama administration has attempted to implement sweeping changes in accordance with their support for transgender ideology through regulations, not through passing legislation in Congress.

The fallout of the Court’s ruling will certainly define the power of local communities to govern their public schools on the sensitive subject of whether members of one biological sex may use the restroom facilities of a different biological sex. But depending on the scope of the decision, the ruling’s impact could be much broader and touch almost every area of public life.

It is the position of the ERLC that the Supreme Court should not give deference to the Department of Education’s specious reinterpretation of Title IX; and moreover, that the government should not sanction the controversial theory of gender that underlies core questions about transgenderism and gender identity. To adopt controversial ideology at the expense of student privacy and student safety is unwise. The ruling could gravely affect free speech and religious liberty, too. Controversial debates should be settled legislatively and with elected officials working with their constituents—not by unelected, unaccountable bureaucracies.

Expressing its opposition to the Department of Education’s interpretation of Title IX, the ERLC joined a brief with other religious organizations expressing concerns over conflicts between gender identity and religious liberty.

The brief, available here, contains a section on Southern Baptist beliefs about gender and sex in the context of other religious traditions beliefs on sex and gender. The brief’s argument expresses concern about the problematic implications that a bad ruling could pose for religious liberty. Drawing on a 2014 Southern Baptist Convention transgender resolution, the brief cites the following about gender identity and transgenderism:

“The gift of gender is thus part of the goodness of God’s creation.” We “affirm God’s good design that gender identity is determined by biological sex and not by one’s self-perception—a perception which is often influenced by fallen human nature in ways contrary to God’s design.” Disconnecting gender identity from natal sex harmfully “engender[s] an understanding of sexuality and personhood that is fluid.” That is why we oppose practices such as cross-sex hormone therapy and gender reassignment surgery as means of altering one’s body “to conform with one’s perceived gender identity.” And “we continue to oppose steadfastly all efforts by any governing official or body to validate transgender identity as morally praiseworthy.”

The brief goes on to describe the effects that a bad ruling could portend for religious liberty:

Interpreting Title IX’s prohibition on sex discrimination as an implicit ban on gender- identity discrimination would undermine the ability of religious organizations to govern their own institutions consistent with their tenets. Maintaining religious schools, colleges, and universities that reflect the faith of their sponsoring religious organizations would be in jeopardy. But also, because federal civil rights laws for employment and housing contain the same prohibition on sex discrimination as Title IX, a misstep in this case could threaten religious liberty across a broad range of circumstances, including employment, housing, and public accommodations.

We acknowledge the serious challenges faced by a small number of people who experience gender dysphoria or other issues of gender identity. They are fellow citizens who deserve kindness and compassion; their concerns should be addressed. But meeting their needs, when voluntary solutions are unavailing, is a task for Congress and other legislators who can balance competing interests.

The date of oral arguments has not yet been determined, but a decision on the ruling is expected sometime this summer.

Stay tuned as the ERLC will monitor this case closely and any implications the ruling will have for student privacy and religious liberty.