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Supreme Court Sets Up Collision Course For School Choice And Sex Politics


The Supreme Court’s latest ruling that says it’s discriminatory to exclude organizations from public programs solely on account of their religious nature helps the legal environment for school choice. So does a Tuesday Supreme Court order that New Mexico revisit its ban on religious schools participating in a state textbook program for poor children.

Thirty-seven states have constitutional amendments like that in the Trinity Lutheran case, forbidding taxpayers from funding religious organizations. These provisions have stymied school voucher programs that have otherwise dramatically increased since 2012, thanks to increased Republican control of state legislatures.

With Trinity Lutheran favorably decided against religious discrimination and another related case up for Supreme Court consideration that directly challenges Blaine Amendments, it may seem the legal path is looking rosy for a second wave of school choice expansion. That’s needed badly, because poor program design is hurting voucher programs in states such as Louisiana and Indiana, and even the initial laws need major improvements, as they apply to relatively few children and are thickly regulated. Since public-school academics have been mediocre for decades and their costs have skyrocketed, and miserable entitlement program management has saddled the nation’s taxpayers with strangling debt, school choice is one potential policy win-win-win because it offers better education for far less cost.

Yet what the Supreme Court appears to give with one hand, it has begun taking away with another. The 2015 Obergefell v. Hodges ruling that imposed gay marriage on the nation also created precedent likely to harass religious schools and forcing public schools into controversial and repellent manifestations of unproven gender ideology. That would make religious schools even more attractive as islands of scientific and social sanity — except that Obergefell and rising misinterpretations of federal civil rights laws are making it more likely the strings attached to voucher programs could force private schools to defenestrate the very faith practices that make them so attractive to school-choice-empowered parents.

There’s a lot there, so let’s take things one at a time.

Forcing Trans Ideology on Schools Without Any Votes

There are good and interesting cases to be made that the transgender movement is hostile to the gay and lesbian movement that birthed it, and we’ve published several of them. Nonetheless, what have been hailed as victories for gay people have also helped activists use government force to sexualize young children into self-destructive behaviors at increasingly early ages. There’s clearly a place for debating whether all gay, trans, and lesbian people support these efforts, and to what extent these efforts will eventually spark a backlash against legal protections for gays and lesbians. But that’s not my purpose here. Here I aim to point out the reality that they are happening, and as a deliberate strategy by the rainbow lobby, if not by the people they claim to represent.

The Obama administration used its tenure to lawlessly force gender ideology onto schools and workplaces by writing “gender identity” as a legally protected class into regulations for the 1964 Civil Rights Act and 1972’s Title IX Education Amendments. Bureaucrats declared they will now consider the word “sex,” which is in both laws, to include the word “gender,” which is not. At the time both these laws were written, nobody prominent thought sex was a mental construct.

As we all used to know until five minutes ago, sex is an immutable biological characteristic. There are only two sexes. Anything that is not XX or XY is an abnormal and harmful genetic mutation. Therefore sex and the new theoretical term “gender” are distinct. And law has always treated them this way, until the Obama administration decided it didn’t give a hoot about law, precedent, science, or reality.

This legal manipulation allowed the Obama administration to strongarm schools into reorienting their treatment of sex and the sexes into a hard-left interpretation that is proving dangerous to children’s development and safety  — all without going through a public debate about this change through the people’s elected representatives in Congress. They changed the laws without going through the lawful process of actually changing the laws. This is tyranny.

This Legal Tyranny Is Not Going Away Soon

Initially, the Trump administration rescinded the Obama administration’s Title IX legal rewrite. But Trump’s Education Department has just issued new guidance to schools that essentially allows this legal and moral abomination to continue apace. That could be because Education Secretary Betsy DeVos reportedly fought Attorney General Jeff Sessions over rescinding the lawless Obama regulations. If true, it suggests she cares more about appearances than about protecting the fundamental rights of Americans to choose what laws govern us through our duly elected representatives.

The new guidance suggests the Education Department will harass public schools where personnel do not use trans students’ desired opposite-sex pronouns and names, and leaves open the possibility of harassing schools that do not allow boys and girls to shower and sleep together (overnight travel), or even just ask trans students to use private facilities in an effort to accommodate and protect all students, not just the current recipients of manufactured social favor.

These regulations have also given trans-allied legal bullies the pretext for launching a series of cases in which courts are reaffirming the illegal executive rewrite of Title IX and the Civil Rights Act. So we have two sets of unelected public officials working in concert to upend laws written by duly elected officials. I recently covered the Seventh Circuit’s use of the Supreme Court Obergefell decision to reinforce this reinterpretation of federal laws:

How are the gay marriage and trans issues connected? With the legal supposition of interchangeability of the sexes. The Seventh Circuit majority in Kimberly Hively v. Ivy Tech Community College made it clear that since Obergefell concluded it’s discriminatory to regard sex differences in marital coupling (i.e., to say that a male-male pair is in any way different than a male-female pair, even though men and women are physically distinct beings and one of each required to create children) it’s also discriminatory to regard sex differences in potential employees’ choice of sexual partners.

Both gay marriage and transgender policies hinge on people agreeing that a man can be essentially the same thing as a woman, and vice versa. Marriage, as a keystone in law, once legally genderless allows for de-sexing other institutions. This assumption in Obergefell, now embedded in Supreme Court precedent, is therefore also affecting rules about sex differences in many other forms. Such as school sports and bathrooms.

A Missile Aimed At School Choice and Faithful Upbringing

Now let’s circle back to what this all has to do with school choice. DeVos is acutely aware that those on the Left now consider any recognition of sex differences between males and females to constitute “bigotry.” While testifying before Congress, she has been asked several times why she’s so bigoted as to support school choice, since that helps families access schools in accord with their most fundamental understanding of human nature and eternal truths. That is, schools that not only recognize the sexes as distinct but also uniquely complementary for the purpose of procreation, and see this natural arrangement as sacred, beautiful, and deserving protection.

Ever since Massachusetts Rep. Katherine Clark attacked DeVos about Indiana’s Lighthouse Christian Academy, because it accepts lower-income students through state vouchers while upholding basic Christian sexual ethics, the school has been fighting a barrage of public ridicule and venom. Its sin? Preserving students’ innocence by reserving the right to decline admission to students whose homes foster “homosexual or bisexual activity” or “practic[e] alternate gender identity or any other identity or behavior that violates God’s ordained distinctions between the two sexes, male and female.”

A local newspaper ran this cartoon. Just imagine the reaction if the target were a Muslim school instead of a Christian school. Editorials and trans spokespersons have equated core tenets of Jewish, Muslim, and Christian faiths with hate crimes and racism.

The incident has gotten newspapers pounding the drum for lawmakers to regulate all voucher-accepting schools even more like the public schools families are rejecting by enrolling kids elsewhere. Voucher programs already flatten education diversity by forcing private schools to use public-school curricula, tests, and teacher training. Further, Republicans are notorious for their cowardice in tucking tail when targeted by the trans lobby (remember Indiana’s RFRA? All those bathroom bills?). Religious schools should expect little help from Republican politicians. Lighthouse is doing its own public defense.

“We see no reason why socio-economic status should bar a child from an educational environment committed to a transcendent moral order,” school spokesman Brian Bailey, a parent of Lighthouse students, said in a statement. “Why should the poor have less freedom of conscience? …They have as much right to stand on the protections of the First Amendment and should be able to direct their own tax dollars in choosing how best to educate their children.”

Thus, even as the Supreme Court seems recently to have opened a path for increased education opportunities, several years ago it embedded landmines in that path thanks to Obergefell, which opened the door for totalitarian legal activism. This affects not only school sports and private facilities but also what kids learn in sex ed about the nature of sexuality and human identity. Have fun running that gauntlet, kids!

Stop Exploiting Vulnerable Kids

This is all terrible for education quality, fundamental American rights, rule of law, and children’s innocence, which is to say the future of our society itself.

Let’s be real. We’ve known for a long time that both earlier and increased exposure to sexual material increases children’s risky behavior — such as unprotected sex, multiple partners, and violence — and damages their mental health. Amping up the attention to gender issues, either through social interaction or particularly through personal experience (such as being a student in a school with a trans or “gender noncomforming” peer), puts children at risk. Nascent research suggests a spike in the proportion of kids identifying as gender dysphoric, precisely in tandem with media attention.

‘We see no reason why socio-economic status should bar a child from an educational environment committed to a transcendent moral order.’

We have no evidence that transgender ideology is true or helpful, and plenty that forcing the nation’s schools into it is not only an evisceration of self-government but extremely risky for kids’ physical and mental health. We’re talking about preventing healthy development, such as puberty, and chopping off healthy body parts, and telling children this is all okay. There is no reason to enable this unless the goal is messing with kids’ lives to make them part of a deliberately expanded voting bloc and political activism cohort. Given the rates of despair and suicide among the gender dysphoric, that’s a simply sick proposition.

These activists are demanding that poor families get no way out of public schools increasingly degraded by things like requiring little girls to stare at penises in their showers, lose track meets to boys, or having a transgendered fifth grade teacher. Their diversity is homogeneity: all the same sex ed, all the same bathroom policies, all the same moral codes, all the same (lack of) standards for behavior, all the same tests, all the same curricula, all the same criteria for the good life.

In other words, they want to use government to force their moral vision on us and our children, while refusing to let us transfer our own moral vision to our own kids or anyone else. Their goal is to colonize our kids and marginalize the American (and world) majority. And, despite the results of Trinity Lutheran this week, burgeoning legal precedent is helping them.