‘Two Genders' too hot to handle? The Supreme Court punts again
We know the Supreme Court can only accept a fraction of cases on appeal and must consider a range of challenges as broad as the Constitution itself. But it seems that issues begging for resolution are being pushed aside, tipping the scales toward acceptance.
Is the raging debate over 'two genders' too hot to handle? The high court's rejection of gender-related cases covering school restrooms, locker rooms, and women's sports has been a source of frustration since 2019. The unresolved question is whether Title IX protects students based on their biological sex rather than their gender identity — a question the Supreme Court has never answered.
Rejecting cases about school sports and spaces has stymied resolution of issues surrounding students' rights and schools' obligations to protect them. Related cases now challenge discrimination against students wearing expressive T-shirts. We have seen stories of female athletes and spectators at sporting events being told to remove shirts declaring 'Girls' sports for girls only.' The Supreme Court's latest dodge involves a T-shirt proclaiming 'There are only two genders.'
In its May 27 order, the court denied a petition to hear the case of L.M. et al. v. Middleborough. Not all justices agreed. Justice Samuel Alito, joined by Justice Clarence Thomas, issued a weighty 14-page dissent.
'This case presents an issue of great importance for our nation's youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive,' Alito wrote.
He went on to highlight the blatant double standard upheld by the lower courts.
'In this case, a middle school permitted and indeed encouraged student expression endorsing the view that there are many genders,' he wrote. 'But when L. M., a seventh grader, wore a T-shirt that said, 'There Are Only Two Genders,' he was barred from attending class. And when he protested this censorship by blocking out the words 'Only Two' and substituting 'CENSORED,' the school prohibited that shirt as well.'
Alito goes on to explain how the lower court fabricated a new test for viewpoint discrimination, 'cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates.' He warns the divided interpretation of the relevant precedent in Tinker v. Des Moines Independent Community School District 'underscores the pressing need for clarification. … The court has instead decided to let the confusion linger.'
This is not the first time the Supreme Court has dodged the schoolyard debate between gender ideology and biology.
Since 2019, three cases involving students' rights to sex-based school facilities from three different circuit courts have been denied. The Supreme Court had a prime opportunity to correct the silence two years ago but punted. Negligence has consequences. Illinois middle school girls are being forced to undress with transgender-identifying males in their PE locker room. Males in Loudoun County, Virginia, are being punished for objecting to a confrontational transgender-identifying female in the boys' bathroom.
Yet the Supreme Court continues to stonewall appeals from three states seeking reinstatement of laws protecting women's sports based on biological sex. The delay has devastated female student-athletes.
West Virginia passed its Save Women's Sports law in 2021 but has faced legal whiplash in federal court ever since. While its petition languishes, girls continue to lose out as a transgender-identifying male, who won multiple middle school awards in girls' shot put, qualified and competed as a freshman at the West Virginia state championship.
Gov. Patrick Morrisey (R) decried the violation of state law. 'A boy is competing in girls' sports at the high school state track meet in West Virginia,' he said. 'It's wrong and unfair. I'm again urging officials to keep separate scores so that the true winners can be awarded once we win in court.'
As cases multiply, it's hard to understand why the Supreme Court avoids taking them. These cases cry out for resolution.
Alito, with 20 years on the high court — nearly as long as the newest four justices combined — expresses palpable frustration over the latest denial regarding the 'two genders' T-shirt. The argument from the First Circuit declaring that a 'general prohibition against viewpoint-based censorship does not apply to public schools' practically dares the court to take L.M.'s case.
So does a fundamental issue plaguing all gender-related cases in schools. Alito's dissent sums it up: '[S]ome lower courts are confused on how to manage the tension between students' rights and schools' obligations. Our Nation's students, teachers, and administrators deserve clarity on this critically important question.'
Students are wearing T-shirts, female athletes are boycotting, and poll after poll shows the American public overwhelmingly agrees it's time for biological truth to be upheld in sports, women's spaces, and speech.
We are making our appeal. Respectfully submitted, it is time for the Supreme Court to step up to the plate.
Doreen Denny is a Senior Advisor at Concerned Women for America.
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