General
SCOTUS Amici Curiae Brief in Gloucester County School Board v. GG (2017)
SCOTUS Amici Curiae Brief in Gloucester County School Board v. GG, January 10, 2017
Interpreting “sex” to mean gender identity would generate conflicts with religious persons and institutions across a range of fronts. Major religious traditions—including those represented by amici—share the belief that a person’s identity as male or female is created by God and immutable. That belief is contradicted by the U.S. Department of Education’s interpretation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). The government’s view, accepted by the Fourth Circuit majority, is that “one’s internal, perceived sense of gender identity is determinative when it diverges from physiological sex.” Br. Pet. 26–27 (citation omitted).
In addition to Petitioner’s arguments, the contradictions between the Department’s interpretation of Title IX and religious beliefs shared by millions of Americans offer an additional reason to reverse. Affirming the Fourth Circuit’s decision would unleash conflicts over religious liberty resembling the conflicts over same-sex marriage.
We acknowledge the serious challenges faced by a small number of people who experience gender dysphoria or other issues of gender identity.3 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. An issue as delicate and complicated as gender identity should not be resolved through an ersatz interpretation of “sex”—especially not when such a dramatic change in the law appears in an informal agency document that lacks the rudimentary elements of notice-and-comment rulemaking. Expanding Title IX through unilateral agency construction would deny religious institutions like amici any chance to mitigate or avoid the resulting loss of religious liberty through tailored legal protections.
Unilaterally declaring “sex” to mean “gender identity” would create serious conflicts with religious liberty. Working through the proper channels of democratic self-government offers a more sustainable answer to the problem of preserving religious liberty while protecting the essential interests of those with gender identity issues. By giving effect to the Department’s faulty reinterpretation of Title IX, the court of appeals erred. Its decision should be reversed.