By DEACON MIKE MANNO, JD
While the world and nation seem to be burning up, thanks to the Marxists in the streets, there are a couple of circuit court opinions that are worth mentioning.
The first is in an Eighth Circuit case where the court vacated a district court’s preliminary injunction against enforcement of four Arkansas laws which regulated abortion: The Unborn Child Protection From Dismemberment Abortion Act, the Sex Discrimination by Abortion Prohibition Act, and two amendments to existing law concerning the disposition of fetal remains, and the requirement to maintain forensic samples from aborted children.
In the second case, a panel of the Eleventh Circuit upheld a lower court decision that a school district’s policy of restricting students’ use of bathrooms according to a student’s gender at birth was unconstitutional. In doing so, it upheld a claim by a transgender boy who wished to use the boys’ facilities instead of the girls’ as a violation of his rights under Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment.
Both are interesting in how the respective sides found legal arguments.
The first case harks back to a case that, in my opinion, was wrongly decided by the U.S. Supreme Court, June Medical Services v. Russo, which was decided earlier this year. In that case a Louisiana statute requiring that doctors performing abortions have admitting privileges at a nearby hospital was struck down by a 5-4 vote. Four of the five voting to strike the law found that balancing the state’s interest in regulation against the burden on women, the law was unconstitutional.
The fifth vote came from Chief Justice John Roberts whoconcurred in the result only. Several years earlier in a similar Texas case, Roberts had voted to uphold that law. Thus when the Russo case came before the court most observers — me included — saw Roberts voting to uphold the Louisiana law as he had done in the Texas case. He didn’t; in effect he switched sides, and that perplexed a lot of folks.
But Roberts’ concurring opinion stated that he was concurring only in the result, not the reasoning. In it he expressed his view that he had to give deference to the legal doctrine of stare decisis (precedent). Thus if the Louisiana law imposed “undue burdens” on a woman’s ability to obtain an abortion, as the Texas law had been found to do, the Louisiana law had to be unconstitutional as well.
But he rejected the contention that the undue burden standard required courts to weigh the law’s benefits against the burdens it imposed. Such an inquiry, he wrote, would invite grand balancing tests in which “unweighted factors mysteriously are weighed,” which could lead to arbitrary results. Thus, since nothing in prior cases suggested that weighing of costs and benefits of abortion regulations was a job for the courts, state legislatures have “wide discretion” to pass legislation in areas where there is “medical and scientific uncertainty.”
Therefore, assuming that the law has a “legitimate purpose” and is reasonably related to that purpose, it should be upheld. Since Roberts had specifically rejected the balancing test, as did the four dissenting justices who had voted to uphold it, the balancing test was now an impermissible measure to test the validity of an abortion regulation.
Thus the Eighth Circuit found that Arkansas had “wide discretion” to pass its challenged laws. The lower court’s preliminary injunction was vacated and the case remanded to it for “reconsideration in light of Chief Justice Roberts’ separate opinion” in the Russo case.
In the second case above, the facts were interesting. A young girl in elementary school decided she was a boy. She was taken for medical and psychological testing and as a result of the professional opinions offered, her parents allowed her to begin transitioning from girl to boy. She was subjected to hormone treatments and procedures to keep her breasts from enlarging.
As she moved from elementary school to high school the plaintiff (I’m not going to subject you to the he/she pronouns) was able to get some state records changed, such as plaintiff’s driver’s license (to male), began dressing as a boy and used masculine pronouns. The plaintiff’s school also used male pronouns, but because the plaintiff was listed as a girl on plaintiff’s birth certificate, the school held he was still a she and could not use the school boys’ bathrooms. Plaintiff was not banned from the girls’ rooms, but was given the option of using a multi-stall girl’s room — which plaintiff found “insulting” — or a single stall gender-neutral facility — which plaintiff found “isolating, depressing, humiliating, and burdensome.”
All of which a good plaintiff must allege. So the student sued and the district court found for the plaintiff. The appeal to the Eleventh Circuit, in the words of the court, “calls upon us to decide whether the [school policy] barring [plaintiff] from the boys’ restroom squares with the Constitution’s guarantee of equal protection and Title IX’s prohibition of sex discrimination.” On a 2-1 vote it decided it didn’t.
The majority on the appeals court held that Title IX, which deals with education, prohibits the school from “providing different aid, benefits, or services…or services in a different manner” because of sex. And since the Supreme Court in Bostock v. Clayton County earlier this year held that Title VII, which deals with discrimination in employment, includes gender identity and transsexual persons under the prohibition against discrimination on account of sex, “This reasoning applies with the same force to Title IX’s equally broad prohibition on sex discrimination.”
The school, of course, argued that schools are “a wildly different environment than” workplaces and education “is the province of local government officials.” The court, however, disagreed, “With Bostock’s guidance, we conclude that Title IX, like Title VII, prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex.”
After rejecting the school’s claims, including privacy arguments, the court found that the school “allowed all non-transgender boys to use the boys’ restroom. It allowed all non-transgender students with male driver’s licenses and birth certificates to use the boys’ restroom. But because Mr. Adams [the plaintiff] is a transgender boy, the School Board singled him out for different treatment.”
However, the chief judge of the circuit dissented.
“Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the commonsense example of an acceptable classification on the basis of sex. And for good reason: It protects well-established privacy interests in using the bathroom away from the opposite sex. Although the Supreme Court recently considered the relationship between transgender status and sex in the context of claims of employment discrimination under Title VII, it declined to consider the permissibility of sex-separated bathrooms.”
He went on to dispute the findings that the school’s bathroom policy violates equal protection, but rather “serves important objectives” by “protecting the interests of children in using the bathroom away from the opposite sex and in shielding their bodies from exposure to the opposite sex.”
The dissent then went on to quote then-Professor Ruth Bader Ginsburg, “Separate places to disrobe, sleep, [and] perform personal body functions are permitted, in some situations required, by regard for individual privacy.”
The problem with this case is as we have observed before. The Supreme Court, in its ill-considered Bostock decision, while attempting to redefine sex discrimination to only employment issues, opened the door to a complete redefining throughout the existing federal code. It is beginning to work like the “find and replace” function on your word processor.
We need some good legal minds, such as we found in the first case above, to get into this fray and stop the application of Bostock while germinating and not yet full grown.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. CDT on Faith On Trial on IowaCatholicRadio.com.)
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