By Duncan Smith
Neil Gorsuch was recommended to President Trump as a potential Supreme Court pick because he supposedly had constitutionalist bona fides.
Well, he proved in June that he can be just another John Roberts when it comes to inventing constitutionalism where it doesn’t, and shouldn’t, exist.
Roberts essentially changed the Obamacare individual mandate into a tax, thus allowing the law to stand though it represented the first time Americans were forced by government to purchase a product.
Gorsuch seemed to discover a provision in statutory law that says transgender people get special legal protections under ‘anti-discrimination’ employment laws.
Now, in a 2-1 decision, a federal appeals court has extended the nonsense to public schools.
The Washington Examiner reports:
In a 2-1 decision, the Richmond, Virginia, court stated that Gavin Grimm, a student who sued a Virginia school board in 2015, was the victim of “a special kind of discrimination against a child that he will no doubt carry with him for life.”
Judge Henry Floyd wrote in the court’s majority opinion that in light of the June Supreme Court decision Bostock v. Clayton County, which found that gay and transgender people are protected by nondiscrimination employment laws, the court had “little difficulty in holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him.” …
Grimm’s case has been the subject of a long legal battle. It was set to be heard before the Supreme Court in 2017 but was sent back to lower courts after President Trump rescinded Obama-era requirements on transgender bathroom access. The case has the potential to be appealed back to the Supreme Court.
After the Bostock decision was delivered, many social conservatives feared that the legal thinking behind it, which applied to Title VII employment laws in the Civil Rights Act, would inevitably be extended to cover Title IX, which prevents discrimination in schools. A collection of schools led by the Catholic University of America and Brigham Young University filed an amicus brief before Bostock was decided. The schools expressed fears that a decision in favor of transgender rights could imperil their ability to operate according to their religious beliefs.
As is always the case, the problem with Gorsuch’s and the appeals court’s ‘nondiscrimination’ rationale is that someone’s rights will be taken away or made less important.
In this instance, the vast majority of students at the Virginia school who will now have to face the uncomfortable choice of sharing their private space (and private parts) with a biological female against their wishes.
No one should be ‘for’ discrimination.
But in cases like these, it’s probably best to not buck trends and just side with the majority.
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