Wisconsin school drops transgender fight

For two years, the U.S. Supreme Court has been able to avoid the inevitable, but the justices will be asked, most likely this year, to define the meaning of “sex” in Title IX.

Transgender schoolchildren and their attorneys argue gender identity is a protected class under the federal education nondiscrimination law, and judges mostly have agreed. A confluence of cases are headed to appeals courts across the country, pitting transgender students’ demands for access to the restrooms and locker rooms of their choice against schools’ attempts to maintain privacy for all students.

The high court agreed in 2016 to hear a Virginia case but returned it to the 4th U.S. Circuit Court of Appeals after President Donald Trump rescinded an Obama administration guidance letter claiming Title IX includes protections for gender identity.

Until last week, the most likely candidate for Supreme Court review this year came from Wisconsin. Kenosha Unified School District No. 1 had appealed a 7th Circuit decision applying gender identity to Title IX. But in the face of mounting legal bills at taxpayer expense, the district settled the lawsuit Jan. 9.

In dropping its Supreme Court appeal, the Kenosha board of trustees left in place the appeals court interpretation of sex, which now applies to all public schools in the 7th Circuit’s jurisdiction: Wisconsin, Indiana, and Illinois.

“The school district tried to protect privacy for all students, but ultimately yielded to the demands of gender activists. Once that happens, private facilities are opened to the opposite sex,” Gary McCaleb, an Alliance Defending Freedom attorney, told me. ADF is representing parents and schools in several other similar cases.

In Palatine, Ill., parents lost their appeal last month for an injunction against Township High School District 211 over a policy that allows students to use sex-segregated facilities based on their gender identity, not biological sex. In his Dec. 29 decision, U.S. District Judge Jorge Alonso cited the Kenosha case and an unrelated Title VII lawsuit—also out of the 7th Circuit—in upholding the district’s policy.

Alonso dismissed privacy concerns, saying “protections against sex discrimination are substantially broader than based only on genitalia or chromosomes.”

Palatine parents plan to appeal to the 7th Circuit because, although the lawsuit was directed at one campus, the policy covers the entire district—a fact Alonso also dismissed, McCaleb said.

A second transgender student filed a lawsuit against the school district in December. Students and Parents for Privacy, a group representing 51 families, filed a motion Jan. 12 to intervene.

McCaleb said courtroom arguments are complicated by attorneys who redefine or refuse to use terms that distinguish between the sexes. During proceedings in Ohio involving a fifth-grade boy who identifies as a girl, the judge asked the child’s attorney whether the student had male genitalia. The lawyer responded that it was “inappropriate to label any part [of the student’s] body as male,” McCaleb said.

That tactic forms a major part of the strategy transgender activists use to skirt the Title IX exemption that allows schools to create sex-segregated private facilities: Self-perception, not biology, determines a student’s sex.

“Language is supposed to be common among us. It shouldn’t be privatized and turned into an advocacy thing,” McCaleb said. “Then it becomes a weapon instead of a communication channel by which we learn to live together and settle our differences.”

Lawyer Harmeet Dhillon (left) listens as James Damore talks to reporters. Associated Press/Photo by Michael Liedtke

Google engineer files discrimination suit

In a class-action lawsuit filed last week, a software engineer fired by Google in August for “perpetuating gender stereotypes” claims the media giant set illegal hiring quotas at the expense of white males and discriminated against him and like-minded employees for challenging the company’s ideological orthodoxy.

James Damore, co-plaintiff David Gudeman, and three subclasses of individuals—conservatives, Caucasians, and men—cite violations of California and federal labor law in the complaint filed Jan. 9 in Santa Clara County Superior Court. They allege Google, in its efforts to meet its goals of hiring women and “favored minorities, openly shames managers of business units who fail to meet their quotas—in the process, openly denigrating male and Caucasian employees as less favored than others.”

The complaint contains multiple pages of screenshots showing internal messages that detail the toxic culture in which the plaintiffs, particularly white males and conservatives, had to work. Google executives fired Damore three days after his document suggesting biology, not inherent sexism, accounted for the company’s male-to-female employment disparity, became public. Damore had posted the document on an in-house message board weeks earlier.

Private corporations have more latitude in their hiring policies and free speech restrictions than government entities, but Damore’s attorney, Harmeet Dhillon, said Google crossed a line that protects all employees based on race and sex. —B.P.

Lawyer Harmeet Dhillon (left) listens as James Damore talks to reporters. Associated Press/Photo by Michael Liedtke

Free speech under FIRE in Illinois

The Foundation for Individual Rights in Education (FIRE) filed suit last week against Joliet Junior College near Chicago after campus police officers told a student she couldn’t hand out anti-capitalism flyers without prior approval. Ivette Salazar decided to distribute the flyers from the Party for Socialism and Liberation after she saw a conservative student group handing out leaflets about the pitfalls of socialism. Like many other colleges, Joliet has a policy restricting free speech activities to one area on campus and requires students to get prior approval to use it. Students must also seek approval for the literature before handing it out. “The First Amendment protects our most cherished right to speak freely on political matters. It is deplorable that public school employees, paid with our tax money, would detain, interrogate, and seize political materials from a student who is attempting to exercise that right,” said Wayne Giampietro, the FIRE-affiliated attorney representing Salazar. —Leigh Jones

Free exercise frozen in Alaska

An Alaska family is suing the city of Anchorage over its ban on handing out religious materials during a public festival. Police ordered David Grisham and his stepdaughter Tina Watson to stop passing out gospel tracts during the Girdwood Forest Fair in July. Rather than cause a commotion, Grisham and Watson complied. After the festival, Grisham sent a letter to city officials asking them to lift the ban for future festivals, noting the prohibition unfairly targets Christians for viewpoint discrimination and violates the First Amendment’s free exercise clause. When the city refused to change its policy, Grisham and Watson filed suit. “Anchorage cannot selectively ban religious expression from a public park during a public event,” said Nate Kellum, the family’s attorney and chief counsel for the Center for Religious Expression. “The First Amendment doesn’t play favorites.” —L.J.