key court filings and petitions

The Biden Administration’s Executive Order 13998 “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” would force individuals to adopt personal beliefs about “gender identity” in contradiction of the fact that a person’s sex is biologically, immutably, and binarily determined as female or male. It further necessitates denial of the legal and social consequences of failing to differentiate between the two sexes in order to achieve equality based on sex.

This Petition requests that the U.S. Department of Education (the “Department”) initiate rulemaking to adjust Title IX regulations, to ensure that the rights of girls and women to equal opportunities in education programs and activities are not sacrificed in the Department’s efforts to comply with the letter and spirit of Executive Order 13998.

Instead, the Department should adopt several provisions which clearly articulate that humans are an anisogamous species, clarify that “gender identity” is a personal belief about one’s gender, and is strictly separate from “sex” in Title IX regulations, and affirm that Title IX cannot be used to compel the use of specific pronouns, or silence statements of facts regarding human sex, nor punish the expression of opinions skeptical of “gender identity”.

Read More: Our Blog Post

The Equality Act’s inclusion of the term “gender identity” overrides constitutional protections for women and girls that are explicitly based on sex. One elimination of such a protection is the provision of the Equality Act that allows employers to use sex as a Bone-Fide Occupational Qualification (BFOQ) if those individuals are “recognized as qualified in accordance with their gender identity.”

This is highly problematic, because there are strong ethical considerations for making such distinctions based on sex: such as in furnishing intimate facilities in which workers may be naked or otherwise have an expectation of bodily privacy from the opposite sex. Employers can also discriminate in circumstances where the public has a right to request that a person of the same sex perform intimate services. This individual right is not lessened or eliminated by another person’s subjective self-perception, or by whether they have “appearance, mannerisms, or other gender-related characteristics” of the opposite sex---but they would be eliminated by the so-called “Equality Act”.

Read More: Blog Post
Read More: Written Submission

Letter Text

When a trans-identified male, going by the name Anita Green, applied to compete in The Miss United States of America (MUSA)’s Oregon pageant, his application was denied on multiple bases, including having missed the deadline and Green not being a “natural biological woman” (as female sex is a requirement of the MUSA pageants). Following his rejection, he sued the MUSA pageant association under the Oregon Public Accommodations Act which establishes “gender identity,” among other characteristics, as a protected class in the state.

WoLF’s amicus brief with the Ninth Circuit was filed in support of MUSA’s right to exclude Green and all males from their association.

Read More: Amicus Brief

Read More: Blog

UPDATE: In November 2022, the Ninth Circuit Court of Appeals expanded the First Amendment’s protection against compelled speech, to include a single-sex beauty pageant being forced to say that men can be women.

In the case of Green v. MUSA, the ruling protected the Miss United States of America pageant from being compelled to admit males as "natural born females,” regardless of the plaintiff’s argument that state law would have otherwise compelled the admittance of men with a “gender identity” of woman.

The court’s ruling is consistent with WoLF’s legal arguments from the brief and with our overall position and strategy on women’s free speech. The court even cites and quotes WoLF’s brief in the decision’s concurring opinion. In March 2023, the court voted not to rehear the case, upholding the 2022 ruling.

Read More: Opinion

Read More: Blog

On November 17, 2021, WoLF filed a lawsuit on behalf of four incarcerated women challenging a California law that allows men to "self-identify" as women or non-binary and be housed in women's facilities. WoLF is asking the court to overturn this law and declare it unconstitutional.

Read More: Text of Complaint

Read More: Case Summary

On April 6, 2021, the Arkansas state legislature adopted HB 1570, the Save Adolescents From Experimentation (SAFE) Act.

The ACLU sued immediately after the Act was passed, and on August 2, a federal district court in Arkansas issued an injunction barring its enforcement.

The state of Arkansas appealed, and WoLF submitted an amicus brief to the 8th Circuit Court of Appeals.

WoLF’s amicus brief was filed in support of the Arkansas SAFE Act which prohibits gender surgeries and drugs for children.

Read More: Text of Brief

Read More: Blog

The submission put forward by WoLF documents how gender theory promotes harm to LGB individuals, women and girls, and liberal ideals such as freedom of speech—all in direct opposition to the stated goals and initiatives of the United Nations.

Read More: Blog Post

Facts of Case:

The DOJ and the ACLU sued Idaho under Title VII for passing the Fairness in Women’s Sport Act, which protects female athletes by requiring those who participate in girls’ sports programs to be girls---the ACLU also called for national sports organizations to boycott Idaho if they didn’t repeal the law. The Alliance Defending Freedom filed to intervene in the ACLU’s lawsuit on behalf of two female athletes who support the law and want to protect future athletic opportunities for women and girls.

Legal Question(s) Raised:

Is Idaho’s protection of female athletes constitutional?

Arguments:

Women’s sex-based rights and protections are not, and cannot, be diminished based on idiosyncratic and subjective beliefs about gender identity.

Women and girls are disadvantaged on the basis of sex, they lose critical protections if the law fails to recognize the female sex-class.

Bostock (holding that employees may not be fired for their “gender identity”) does not provide relevant or persuasive authority on this case.

Resolution:

None yet!

Read More: Amicus Text
Read More: Blog Post
Read More: Blog Post on Freedom of Speech
Watch: Women Speak! on ACLU and women and girls.

Facts of the Case:

Shawnee State University officials have punished a philosophy professor, Dr. Nicholas Meriwether, because he declined a male student’s demand to be referred to as a woman, with feminine titles and pronouns. Although Dr. Meriwether offered to use the student’s first or last name instead, neither the student nor the university was willing to accept that compromise, choosing instead to force the professor to speak and act contrary to his own Christian convictions. Mr. Doe filed a Title IX complaint with the university. After completing an investigation into Professor Meriwether’s conduct, the university decided to place a discipline letter in his personnel file regarding his refusal to use the correct honorific and pronoun when referring to Jane. On November 5, 2018, Meriwether sued the university claiming that the disciplinary action infringed on his First Amendment right to free speech and free exercise of religion, among other violations of federal and state law.

Legal Question(s):

Does a public school have the power to force a professor to adopt its subjective beliefs, and compel a professor to use sex-specific titles to address students?

Argument(s):

The decision below is incompatible with women’s freedom of thought and freedom from compelled speech.

Mandatory “gender identity” policies harm the interests of women and girls in education, as well as other rights and interests.

The court should not enforce subjective political beliefs.

Resolution:

The 6th Circuit upholds the First Amendment rights of Shawnee State professor Meriwether.

Read More: Amicus Text

Read More: Blogs

Facts of case:

“Aimee” Stephens, a man, at R.G. & G.R. Harris Funeral Homes, Inc., and was terminated after informing his workplace that he planned on dressing and living as a woman, and expected to be referred to as a woman. He filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that he had been terminated based on unlawful sex discrimination---that Title VII of the Civil Rights act of 1964 had been violated, on the basis of his “transgender” or “transitioning status”.

Legal Question(s) Raised:

Does Title VII of the Civil Rights Act of 1964 prohibit discrimination against transgender employees based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)?

Our Arguments:

“Sex” does not mean “Gender” or “Gender Identity”.

Sex-role stereotyping, which responds seek to enshrine in law, is unlawful, and has dangerous implications for women’s employment, education, and other areas.

The ruling of the sixth court amounts to government-compelled speech, in violation of the First Amendment of the US Constitution.

Resolution:

The district court granted summary judgment to the Funeral Home, and a panel of the US Court of Appeals for the Sixth Circuit reversed, holding that the Funeral Home’s termination of Stephens based on his transgender status constituted sex discrimination in violation of Title VII. The Supreme Court affirmed the Sixth Circuit in a 6-3 decision.

Read More:

Amicus Text

Blog Post

Frequently Asked Questions

More Reading

Feminist Objections to Drag Queen Story Hour

We asked the Public Library of Albuquerque and of Bernalillo County to adopt a policy prohibiting Drag Queen Story Hour events aimed at minors.

Drag Queen Story Hour subjects impressionable children to adult entertainment, including strip teases, which are totally inappropriate content for 10 year olds---it is sexist, homophobic, and presents unhealthy images of lesbian, bisexual, and gay people. From a feminist perspective, the main feature of drag is that it equates “woman” with over-sexualized clothing (outfits no woman would wear to a library), unrealistic fake breasts and body shapes, heavy makeup, frivolous behavior, and a demure voice. This cements sex stereotypes that are offensive and harmful to women and girls.

Drag Queen Story Hour also exposes children to homophobia and an unhealthy image of lesbian, bisexual, and gay people---it leads children to associate homosexuality or gender non-conformity with over-sexualized, deviant, transgressive, over-the-top behavior.

Libraries do play a role in providing free access to books and information and discussions about contentious issues, but Drag Queen Story Hour events are not appropriate venues for discussing those issues due to the intended audience age.

Full Letter
Read More: Blog Post

Facts of the Case:

A recent female high school graduate, Adams, filed suit against the school board, alleging violations of her rights under Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment to the U.S. Constitution because her high school insisted that only males could use male restrooms.

The Eleventh Circuit affirmed the district court's judgment granting plaintiff relief on both claims and argued that the school district's policy of only allowing boys to use the boys' restroom does not square with the Constitution's guarantee of equal protection and Title IX's prohibition of sex discrimination.

Resolution:

The court held that “excluding plaintiff from the boys' bathroom amounts to sex discrimination in violation of Title IX”, the Supreme Court hasn’t taken up the case.

Legal Question(s) Raised:

Is a school policy of only allowing boys in boys’ restrooms discriminatory against a girl that wants to use boys’ restrooms?

Arguments:

If “gender identity is used to mean sex for the purposes of interpreting the consitutional right to privacy and Title IX, women and girls will lose their privacy and be put at even greater risk of sexual violence.

They will also lose preferences addressing historical and systemic discrimination, as well as preferences under other remedial statutes.

Civil rights protections should not be based on subjective feelings or on a propensity to threaten or engage in self harm.

Replacing “sex” with “gender identity” under civil rights law will distort vital statistics.

Read More: Amicus Text, Blog Post

Facts of the Case:

The case involves a group of students who sued the Boyertown Area School District, alleging that the district failed to provide sex-segregated bathrooms and locker rooms where students can be naked or partially clothed without worrying about the presence of students or teachers of the opposite sex. The students lost at the District Court level and appealed. On June 18, 2018, a three-judge panel of the U.S. Court of Appeals for the Third Circuit upheld that ruling. During the course of the litigation, one of the plaintiff students wrote a moving explanation of the need to maintain sex-segregated spaces. She and her co-plaintiffs have requested that their case be reviewed en banc. WoLF supports this request.

Legal Question(s):

May Title IX employers and schools limit access to restrooms and other intimate spaces on the basis of sex?

Arguments:

If “Gender Identity” Is used to interpret the Constitutional right to privacy and Title IX, Women and Girls will lose their privacy and be put at even greater risk of sexual violence.

If “Gender Identity” is used to interpret Title IX, women and girls will lose preferences addressing historical and systemic discriminations, and under other remedial statutes.

Civil Rights protections should not be based on subjective feelings or on a propensity to threaten or engage in self harm.

Replacing sex with “gender identity” under civil rights law will distort vital statistics.

Resolution:

The Third District claims “transgender students” rights to use the bathroom of their choice outweighs women’s and girl’s “right to privacy”, claiming “The mere presence of a transgender individual in a bathroom or locker room would not be highly offensive to a reasonable person.”

Read More:

Amicus Text

Blog Post

Additional Reading

The Department of Housing and Urban Development’s (HUD) regulations contained a rule called “Equal Access in Accordance with an Individual's Gender Identity in Community Planning and Development Programs” under 24 C.F.R. Part 5. These regulations require that men be placed in programs and shelters reserved as safe havens for women, based on their self-reported “gender identity”, and without regard to their sex.

Women must retain their access to single sex spaces because: (1) sex is the saliant consideration in determining who should have have access to women’s-only spaces. (2) Only women are at risk of pregnancy through rape. (3) Women, not men, face a dramatically disproportionate statistical risk of violence, rape, assault, and voyeruism, mostly at the hands of men. (4) Available evidence indicates that male-pattern criminal violence does not change significantly based on subjective gender feelings. (5) Adoption of this rule ignores disproportionately harmful effects it will have on black women, hispanic women, poor women, and women who are prior victims of trauma and/or abuse. (6) This rule silences reasonable objections to dangerous individuals and ignores the concerns of vulnerable women. It “requires that all complaints by women about sharing intimate quarters with the opposite sex to be treated as opportunities to educate.” (7) Gender Identity is a circular, subjective standard and not a proper basis to determine eligibility for single-sex shelters.

We would make sex, and sex alone, the only salient factor in determining eligibility for single-sex shelters.

Full Submission

Brief Facts of Case:

In 2013, G.G., a female student at Gloucester High School, obtained permission from the school’s principal to use the boys’ restroom during the 2014-15 school year. Several county residents contacted the Gloucester County School Board (Board) to demand that only boys be allowed to use the boys’ restroom. The Board passed a policy mandating that students only be allowed access to single-stall unisex restrooms or restrooms that correspond with their sex assigned at birth.

On January 7, 2015, the Department of Education (DOE) issued an opinion letter regarding its regulation under Title IX, permitting the separation of restrooms and locker rooms on the basis of sex. G.G. sued the Board, alleging a violation of Title IX and the Equal Protection Clause of the Fourteenth Amendment. The district court granted the Board’s motion to dismiss the Title IX claim, but the U.S. Court of Appeals for the Fourth Circuit reversed that decision and claimed that the term “sex” in the DOE’s regulation was ambiguous, and that the DOE’s interpretation should be relied upon.

Legal Questions:

Should an unpublished agency letter which interprets the agency’s own regulation be accorded deference?

In this case, should the Department of Education’s interpretation of Title IX of the Education Amendments of 1972 and its regulation permitting separation of restrooms on the basis of sex be accorded deference?

Our Arguments:

All three branches of the federal government have used the word “sex” to refer to the physiological differences between men and women. Failing to do so would result in harmful consequences for women, including losses in privacy, and increased risk of physical assault, but also the potential loss of scholarships and athletic opportunities, among others.

Extending other laws to remedy “gender identity” discrimination provides no basis for doing so under Title IX---if “sex” is ambiguous under Title IX, then there is no logical reason why “sex” or “female” or “woman” or “girl” is any less ambiguous when used in any other law designed to remedy centuries of discrimination against women, such as in the Women’s Business Ownership Act of 1988 and many others.

The unpublished agency letter is not entitled to deference, because it relied on a previous agency interpretation that violated the agency’s own long and well-documented history of regulations. Reversing these positions would revoke the very rights intended to be granted to women by Congress in those statutes.

Resolution:

The Supreme Court refused to review the case, allowing the 4th District’s decision to stand.

Amicus Brief
More Reading
Blog Post

Facts of the Complaint:

In May of 2016, the Obama administration enacted a “Guidance Document” which mandated that every public school and university in the US must, unconditionally, admit men to women’s bathrooms, locker rooms, and other facilities. This guidance violated the rights of women protected by the 5th amendment, the 14th amendment, Title IX, and other regulations and policies.

The Trump Administration removed the guidance, but the new Biden Administration will be implementing it.

Our Argument:

Title IX and the Department of Education explicitly allow institutions to provide separate facilities for men and women. It also explicitly allows “differantial treatment by sex only” in instances where personal privacy must be preserved.

There have been many opportunities to define sex as including men, Congress has not done so, and has denied multiple explicit attempts to include “gender orientation” into Title IX, the Violence Against Women Act, and others.

Full Complaint
Blog Post