WoLF Files 4th Circuit Amicus Brief on “Gender Identity”

May 16

The Women’s Liberation Front (WoLF) continues its fight to preserve Title IX for women and girls. This week we’ve taken radical feminist arguments to the Fourth Circuit in our fight to preserve the rights of women and girls under Title IX of the Educational Amendments of 1972.

WoLF filed an amicus (“friend of the court”) brief in the GG v. Gloucester County School Board case, filed by the ACLU on behalf of a female high school student who identifies as transgender and is trying to use Title IX to compel the school board to allow her to use the boys’ bathrooms in her school. Although GG insists that this is narrowly limited to bathrooms because GG does not seek to use the boys’ locker rooms, a court ruling under Title IX would go far beyond this case.

What GG and the ACLU seek is nothing short of a redefinition of “sex” to mean “gender identity” for purposes of Title IX. This sweeping change would have implications not only for Title IX but also other similar civil rights statutes such as the employment discrimination protections under Title VII. If GG’s suit succeeds, it would eliminate the ability of government agencies and the courts to treat males and females as distinct and separate legal classes. If any male can “identify as” female, then any male can claim access to female-designated spaces, athletics, programs, scholarships, and awards based only on his subjective claim to know that he is a woman, and vice versa.

WoLF submitted its brief in partnership with the conservative group Family Policy Alliance (FPA). As radical feminists, we disagree with FPA on many issues including women’s right to full reproductive sovereignty and LGB liberation. But WoLF and FPA agree that women and girls are at disproportionate risk of harm due to our sexed bodies, and we agree on our opposition to the abuse of women and children through pornography and prostitution. In submitting this brief jointly we hope to awaken the court to the fact that “gender identity” is not a progressive concept, it is a smokescreen for normalizing sex-based abuse.

Our arguments

“Sex” in Title IX has always referred to human sexual dimorphism. Radical feminists know that the physiological differences between men and women are not coincidental in the fight for women’s liberation. Rather, it is our biological differences – most importantly our sexual reproductive capacity – that form the root of the oppression of women and girls. Congress understood that when it adopted Title IX and, with a few errant exceptions, every federal agency charged with implementing Title IX has recognized that as well. Gender identity activists want to convince us that sex is an artificial concept, and that womanhood is nothing more than a feeling in one’s head such that even a male who has lived with male privilege for decades can be a woman. The campaign to confuse sex and gender has crept into many aspects of society, but this case presents a chance to keep “gender identity” from undermining women’s most fundamental legal rights.

Although the courts have extended other civil rights laws including Title VII to remedy discrimination based on “gender identity,” those narrow extensions do not justify re-writing Title IX. As long as they are complying with reasonable conditions of employment or housing, no person should be fired or lose their home on the basis that they refuse to comply with sex-based stereotypes. Some courts have ruled that employment and medical discrimination against transgender-identified individuals can be remedied under statutes that prohibit discrimination based on sex. But extending those laws to prevent such discrimination did not infringe upon the rights of other persons. Here, the ACLU and GG seek to erase the distinction between males and females for purposes of Title IX, and extending the law in that way would swallow the entire statute.

Redefining “sex” to mean “gender identity” harms women. It undermines women’s privacy and safety by allowing men to access the spaces where women are most vulnerable, such as lockers, changing rooms, and dorms. It undermines the hiring and contracting protections for women and woman-owned businesses, by allowing men to claim a right to access these preferential programs. And it erases women as a legal class.

History of WoLF’s gender identity advocacy

On August 11, 2016, WoLF filed a lawsuit challenging the Obama administration’s May 13, 2016 “Dear Colleague Letter,” which mandated that every public school and university in the U.S. unconditionally admit men to women’s bathrooms, locker rooms, changing rooms and other facilities based on self-declared “gender identity.” The lawsuit, filed in the federal District Court for New Mexico, argued that the interpretation of Title IX contained in the letter violated the Administrative Procedure Act, Title IX, and the Fifth and Fourteenth Amendments to the Constitution. See our

To protect WoLF’s interests in our lawsuit and to expand our fight against “gender identity” laws, on September 27, 2016, we filed an amicus brief urging the Supreme Court to review the case of Gloucester County School Board v. G.G., in which the U.S. Court of Appeals for the Fourth Circuit issued a ruling that threatened to deprive students of their right to have access to sex-segregated spaces. The Supreme Court accepted the case, and WoLF submitted a second amicus brief on January 9, 2017, this time in partnership with the conservative group Family Policy Alliance, arguing that the Fourth Circuit’s ruling was contrary to the plain meaning of Title IX.

The Trump administration issued a new “Dear Colleague Letter” on February 22, 2017, rescinding the Obama administration’s letter and rendering our New Mexico complaint moot. WoLF voluntarily dismissed the case, and we have shifted attention to new threats to women’s liberation.

In May 2017 WoLF shifted focus to the executive branch, where the U.S. Department of Housing and Urban Development (HUD) adopted “gender identity” rules in 2015, forcing emergency shelters to admit men to previously sex-segregated facilities and programs designed to provide refuge for homeless women and children and victims of domestic violence.