California's Gender Blender: Boys Will be Girls?

JURIST Guest Columnist Dean Broyles of the National Center for Law & Policy criticizes a California law regarding bathroom choice in public schools...
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California's latest foray into radical psycho-social experimentation with children is AB 1266, known as the "bathroom bill." Unless stopped by a popular referendum effort, AB 1266 will go into effect on January 1, 2014. This dangerous legislation allows boys and girls in California's purportedly enlightened K-12 public schools, regardless of their sexual plumbing, to self-identify, proclaim their "gender" and be granted access to on-campus bathrooms, locker rooms, showers and sports teams of the opposite sex. Amazingly, parental notification or consent is not required.

Gender is an objective biological fact, not a subjective state of mind. As John Adams famously declared, "[f]acts are stubborn things." So are genes. And thus the question becomes, is it sound public policy to allow the often transient subjective personal feelings or the notoriously tumultuous proclivities of say a five-year-old boy determine his sex? Rather, should not tried and true objective biological realities determine what it means to be male or female? The answer to these questions should indeed be obvious. Yet clearly what it means to be a "boy" and what it means to be a "girl" is becoming confused when genetic material is dangerously dumped into the elite culture's gender-blender. What was once obvious to all has become obscured to many by postmodernism's notions of extreme personal autonomy and radical sexual liberty. The difference now is that these inappropriate social pressures are prematurely pushing the age of decision to younger ages when the brains and bodies of children are not yet fully developed to be best able to make such fundamentally important decisions.

AB 1266 and similar gender self-identification laws appear to be heavily influenced by the desire of many radical secular-progressives to completely eradicate "maleness" and "femaleness" as valid social categories and re-cast human beings as androgynous creatures. Far-fetched? Not at all! Exhibit A is Judge Vaughn Walker's federal district court opinion in California's Proposition 8 litigation regarding same-sex marriage. Back in 2010, I wrote an opinion editorial [PDF] for the Daily Journal, California's largest legal newspaper, criticizing that opinion. Relying on fabricated "facts" and employing faulty logic, Walker created his own subjective alternative universe, declaring by fiat that children really do not need a father and a mother, but that, in essence, kids only need people who love them—of an indeterminate sex, say person A and person B. Contradicting 5,000 years of recorded history, common sense and social science research, Walker bizarrely announced that, indeed, any androgynous parents will do—no mother or father required. Fortunately, neither the Ninth Circuit nor the US Supreme Court affirmed Walker's extreme gender-blending approach.

And as we at the National Center for Law and Policy explained to the Supreme Court in our amicus brief filed in both the Hollingsworth, et al. v. Perry, et al. ("Proposition 8") and United States v. Windsor, et al. ("DOMA") cases: "Far from being an immutable characteristic determined at birth like race or gender, sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition." In other words, the scientific evidence does not support the widespread public belief in popular culture that individuals are born gay, or in this case, born transgender. This point is well documented by the fact that we were representing the organization Parents and Friends of Ex Gays & Gays before the court, which has confirmed that there are tens of thousands of ex-gays now living successful heterosexual lives. If immutability were a fact, ex-gays would not exist.

So back to the specific issue at hand, AB 1266. There are a myriad of practical and legal problems that have surfaced and will surface as a result of such radical political correctness run amok. What follows is only a partial list of the follies which will emerge.

First, who actually determines what the "gender" of the student is on any given day? Since biology is apparently no longer our guide, does it depend merely upon the whim, vague sense or fashion choices of the student? Must they always take the word of the student, or does the teacher, guidance counselor, principal or coach have any input into the decision? How would they know if the child is being sincere or cleverly perverted about his or her reported gender identity? And what if the child's parents instruct the school otherwise? This vague law puts educators in the nearly impossible position of figuring out whether they are actually complying with or violating the law. The statute itself provides no guidance.

Second, AB 1266 severs parents, perhaps intentionally so, from the ability to do their job (i.e. parent)—disconnecting them from the important role of monitoring and guiding the sexual choices of their children. Since parents are completely left out of the loop here, what does this say about our culture's diminishment and disrespect for the ability and authority of parents to direct the care and upbringing of their children, especially on issues as fundamentally important as gender? The attitude of the state here appears to be, "parents be damned!" Apparently, the state, not father, "knows best" when it comes to making confusing sexual choices for our little ones. The state is a very poor substitute for parents and should not be the entity guiding our children's sexual development and choices.

Third, what about the legitimate privacy and safety concerns of the majority of non-gender confused students? Should boys and girls be involuntarily exposed to the genitals of the opposite sex at school—outside of the sex education classroom? And what of the sexually-charged opportunist high school boy who lies to administrators to gain full access to the girls' locker room? Can administrators tell him "no?" Do young girls and young women not deserve to have their dignity and privacy respected and protected by the state? If this law is not stopped, the future is indeed bright for plaintiff's attorneys in the Golden State! Can you not visualize them lining up to sue the school districts and the state for unwanted leering, groping and worse?

Fourth, what about public school administrators, teachers and coaches who, in spite of their religious beliefs to the contrary, will be compelled under this law to communicate active support for gender self-identification generally, and support for gender self-identifying students, or face losing their jobs? What about their rights of religious freedom and conscience which are squarely threatened by laws like AB 1266? The Supreme Court has repeatedly recognized that certain applications of nondiscrimination laws can infringe on cherished First Amendment freedoms, such as freedom of speech and association. In Hurley the court reversed a lower court ruling against parade organizers who excluded a pro-homosexual group, declaring that the application of the "sexual orientation" nondiscrimination law violated the constitutional free-speech rights of the parade organizers by compelling them to communicate an unwanted message. Should our conscience dissenting public school teachers, administrators and coaches be less protected than the parade organizers in Hurley or the Scouts leaders in Boy Scouts of America v. Dale? I submit not. Alternatively, even if they do not hold contrary religious convictions, should they become the targets of litigation because they were merely "doing their job" in compliance with AB 1266?

No student should be harassed or bullied in our public schools—for any reason. Indeed, students struggling with same-sex attraction or transgender ideation deserve to be treated with love, dignity and respect. But bullying is already forbidden on public school campuses. All students deserve to be protected from bullying and harassment, regardless of how they are feeling about their gender on any given day. Schools are already handling the issue on a case-by-case basis with facilities like single-stall unisex restrooms and similar private accommodations. Such locally-controlled actions are preferable to a sweeping statewide policy. We have enough challenges in public education right now. Do we really need to radically upset the whole biological order in our public schools to protect transgender students from mean kids? Absolutely not. Punish the bullies; do not diminish or destroy the public education experience for everyone else, or trample on the privacy, religious freedom and other civil rights of other students, parents, administrators, teachers and coaches.

In conclusion, we must vigilantly resist the popular temptation to allow truth and common sense to be sacrificed on the altar of political correctness. We should never confuse change with progress. Sex is not a state of mind, it is a biological fact. Misguided far-reaching sexual orientation "anti-discrimination" laws like AB 1266 will certainly create many more social and legal problems than they will solve. Such nondiscrimination laws embody an ironic twist: while purporting to discourage discrimination, they actually create religious discrimination and threaten to trample on other important civil rights. If students are struggling with their sexual identity, they most need the loving help of their parents, pastors, physicians, counselors and others who really know them, love them and understand them, rather than the sloppy, blunt, awkward, unfeeling and overbroad solutions of the state fumbling around and interfering in personal areas where it is so obviously not competent. So the question becomes, should we further sever fundamental parent-child bonds and allow the young children, guided only by the secular state, to make potentially life-altering sexual decisions? I think not.

Dean Broyles is is the President of the National Center for Law and Policy (formerly Western Center for Law & Policy). He earned a Juris Doctor degree from Regent University School of Law.

Suggested citation: Dean Broyles, California's Gender Blender: Boys Will be Girls?, JURIST - Hotline, Dec. 12, 2013, http://jurist.org/hotline/2013/11/dean-broyles-bathroom-bill.php.


This article was prepared for publication by Michael Muha, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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