Flouting SCOTUS, Religious Liberty Advocates “Give The Game Away”

SCOTUS, before the death of Scalia.

Slate‘s Mark Joseph Stern published an important scoop on Friday, revealing that the U.S. Supreme Court had formally reprimanded two right-wing, anti-LGBTQ groups for misgendering the teenage plaintiff in G.G. v. Glouchester County School Board, the landmark case regarding trans student access pending before the high court.

Three amicus briefs filed by Liberty Counsel, National Organization for Marriage (NOM) and the Center for Constitutional Jurisprudence (CCJ) referred to Grimm using female pronouns—as “her” rather than “him”—including in the formal titles of those briefs. That’s a problem for the Court, and a clerk pointedly told the anti-LGBTQ groups so in a pair of letters.

Stern illuminates the procedural background of the reprimand, which, in any other case, might be chalked up to a clerical error. But in a case that essentially asks the court to either recognize or deny the plaintiff’s central identity, the misgendering in Liberty Counsel and NOM’s briefs are crucial. And, as Stern rightly points out, that act lays bare the animus behind NOM and Liberty Counsel’s long-standing opposition to trans equality (emphasis mine):

The briefs reject the very validity of Grimm’s identity in a manner that is both offensive and petty. Indeed, these organizations are so eager to deny Grimm this basic dignity that they intentionally flouted the rules of the Supreme Court of the United States. It is difficult to imagine a justice citing anything these groups’ briefs say—even those who vote against Grimm. Liberty Counsel, NOM, and the CCJ have given the game away, revealing that while they claim to care about bathroom predators, they are really attempting to repudiate trans people’s identity.

Lest anyone believe that the misgendering was unintentional, a NOM representative told Stern that the organization misgendered the 17-year-old boy because “Gavin Grimm is a biological girl who now says she subjectively ‘identifies’ as a ‘boy,'” as though Grimm’s innate sense of self is some kind of “error.”

As Stern points out, Grimm has legally and medically transitioned from female to male, meaning that his home state of Virginia recognizes him as the young man he is. The fact that the Supreme Court follows suit is an important distinction in this first-of-its-kind case, indicating that even at the most basic linguistic level, the court accepts as fact Grimm’s male identity.

While it’s generally a fool’s errand to try to predict SCOTUS outcomes (especially when the makeup of the court itself is in flux), this basic affirmation of Grimm’s maleness bodes well for the plaintiff. If the court inherently accepts Grimm as male, then the school board’s decision to bar him from the boy’s bathroom is a clear-cut violation of Title IX’s prohibition on sex-based discrimination, regardless of whether or not Grimm (or any other similarly situated student) is trans.

There is some sense of poetic justice that the brazen animus of Liberty Counsel and NOM is what may well disqualify their arguments. And, as Stern remarks, although “these groups may passionately believe that Grimm is a girl… they aren’t entitled to change his gender in the caption of their amicus briefs.” Judging by the clerk’s reprimand, such beliefs, even if sincerely held, also don’t entitle NOM and Liberty Counsel to reject legal reality before the highest court in the land.