Bathroom Issue Nothing to Do with Education

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The mother is calling upon "everyone in the school system to be trained just on what transgender is, what gender fluid is" so they can support transgender children and make their lives in school better.

The mother wants schools and lawmakers to "do their jobs" and guarantee the "rights" and "safety" of transgender children. There’s no mention whether the Camp Hill mom will take her case to Court.

But there is ample precedent. Across the country, transgender students, encouraged by parents and advocates, are filing lawsuits to compel schools to do just that.

Last week, a federal court in Pittsburgh issued a preliminary injunction compelling the Pine-Richland School District to permit transgender students to use the communal bathroom of the sex they identify with rather than their biological sex.

Parents of transgender children to educators, lawmakers: Protect our children and educate yourselves
Parents of transgender children to educators, lawmakers: Protect our children and educate yourselves
On the heels of measures by the Trump administration to roll back equality guidelines for transgender students, the parents of transgender children say they are fearful and concerned over the safety of their children, but hopeful at the same time.

The judge ruled the school’s policy that required transgender students to use the bathroom of their biological sex or one of the many private, unisex bathrooms will cause irreparable harm to them.

The transgender student plaintiffs sued under Title IX and the Equal Protection Clause of the 14th Amendment.

Title IX expressly defines "sex" as fixed, binary and genetically-determined based upon human reproduction and its regulations expressly permit separate facilities for the sexes.

The Equal Protection Clause had never been used or recognized as providing special "rights" for the transgender. Thus, the judge should have dismissed the suit. However, the judged decided to make his own law and invent a right where none existed.

The case received national attention because one of the plaintiffs is the brother of the famous singer Jackie Evancho, who sang at President Donald Trump’s inauguration.

Even though Juliet Evancho is a biological boy the school obeyed his request and treated him as a girl in almost every way including referring to him as "Juliet" instead of his legal name Jacob. The school even permitted her to be nominated for Homecoming Queen.

Regarding bathrooms the school tried to compromise.

It offered transgender students the use of the many unisex bathrooms, which would have ensured their privacy, safety and dignity. They rejected the compromise and sued the school.

In their complaint, the student plaintiffs defined themselves as individuals whose "gender identity diverges from the sex they were assigned at birth."

By "assigned at birth" they mean the sex indicated on their birth certificate when they were newborns as determined by their genitalia. To transgender advocates, that’s wrong.

They say it’s not biology that determines sex. They believe one’s sex is determined by how one "self-identifies"; one can simply "identify" as being of a sex different from the sex revealed by one’s genitalia.

So, transgender is in the mind, not the body.

According to transgender advocates, for example, just say you’re a girl and the public must accommodate you as a girl, regardless of your male genitalia.

Say you’re a boy and the public must accommodate you as a boy.

There’s no test, quiz or questionnaire. You just declare you are whatever sex you decide.

What about biology? Transgender advocates deny the obvious biological determination of sex and replace it with their views of sex based upon "a person’s internal sense of their own gender."

Not only do transgender advocates deny biology and use Orwellian terminology to redefine sex, they also wrongfully claim their lawsuits are about "equal access to education."

These lawsuits contain no allegation of discrimination in the classroom.

Transgender students receive the same education all students receive. Educational instruction does not occur in the bathrooms; it occurs in the classrooms were "transgender" students sit equally alongside their classmates.

The Judge in the Pine-Richland case focused his preliminary order on permitting transgender students use of the bathrooms of their choice, including the communal bathrooms of the opposite sex.

However, the complaint asks for more – the transgender students demand the use of all sex-designated facilities (i.e. locker rooms and showers) and to be treated by the school in every way based upon their self-identified sex.

The Judge already indicated they are likely to win their case.

That means a 17-year boy sporting male genitalia, who identifies as a girl, will be able to jump in, lather up and rinse off with the girls in the girls’ shower.

It also means girls who identify as boys will be permitted to join the boys’ athletic teams. It means no more girls clubs or boys clubs or any policy, accommodation, event, activity of any kind that differentiates based upon sex.

Juliet Evancho will likely win her case at the District Court.

If the school appeals to the 3rd Circuit, parents with children in Central Pennsylvania’s public schools beware – any decision by that court would likely be binding upon our schools.

There’s a similar case coming out of Virginia in which the transgender student, Gavin Grim, won at the 4th Circuit.

The Supreme Court had agreed to hear the case, but earlier this week sent it back because of Trump’s recent executive order on transgender. The case will likely make its way back the Supreme Court.

When it does it is my hope that Judge Neil A. Gorsuch is on the Supreme Court. An originalist and textualist, Judge Gorsuch will interpret Title IX and the 14th Amendment as they were meant and according to their text – meaning no inventing new rights by the judiciary.

Transgender advocates like our Camp Hill mom should fight their battles in the Pennsylvania General Assembly.

That is what our Founding Fathers intended – for our legislatures to make law and for our judiciary to interpret it. But, with the current makeup of the Supreme Court, even the addition of Gorsuch may not be enough to help restore our Constitutional Republic created by our Founding Fathers.

We shall see.

Marc A. Scaringi, an attorney, is a frequent PennLive Opinion contributor. He hosts the "Marc Scaringi Show," which airs Saturdays at 12 p.m. on WHP 580 AM in Harrisburg. He writes from Camp Hill, Pa.