A three-judge federal panel has declared people who say they are members of the opposite sex can use a 1990 disability law to enforce their demands on other people and groups.
“We have little trouble concluding that a law excluding from ADA [Americans with Disabilities Act of 1990] protection both ‘gender identity disorders’ and gender dysphoria would [unconstituionally] discriminate against transgender people as a class,” said the opinion by Judge Diana Gribbon Motz, who was nominated by President Bill Clinton.
The 2:1 decision by the Court of Appeals for the Fourth Circuit may be appealed to the U.S. Supreme Court.
If the case survives, it will be used by advocacy groups to push the transgender ideology on state and local government, schools, companies, and civic groups. The ideology insists that each person’s male-or-female sex is determined by their inner feelings of “gender identity,” regardless of other people’s recognition of their male or female body.
That demand would harness the government to suppress normal sexual distinctions in civic life, such as single-sex bathrooms, sports, scholarships, and much else.
The Virginia case concerns a jailed man — Kesha Williams — who was living as a woman but was transferred from a jail for women to a jail for men. The lawsuit was filed by the ACLU and other groups that oppose the government or civic use of the “bright line” of biology to determine legal sex.
Williams’ lawyers argued that his preference for a female identity is not a disability under the ADA rules. But they also declared that he is covered by ADA because he needs medical treatment to treat his dissatisfaction — dubbed “gender dysphoria” by transgender advocates — with his male body.
The two judges admitted that the 1990 law does not protect transgender claims.
But they argued that it protects the dissatisfaction — dubbed “gender dysphoria” — that is claimed by many people who say they are members of the opposite sex:
… the ADA [text] excludes from its protection anything falling within the plain meaning of “gender identity disorders,” … But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a “gender identity disorder” excluded from ADA protection. For these reasons, we agree with Williams that, as a matter of statutory construction, gender dysphoria is not a gender identity disorder.
The two judges repeatedly say Congress intended the 1990 law to be very broad: “we are once again guided by Congress’ mandate that we must construe the definition of ‘disability’ as broadly as the text of the ADA permits.”
The judges also denounced the jail’s reliance on using biology to distinguish between men and women, saying:
A policy that houses transgender inmates based solely on their genitalia puts transgender inmates at further risk of harm. The safety risks of housing transgender women in men’s prisons are by now well recognized.
The decision came as advocates for women point out the multiplying cases of sexual assaults after jailed men claimed transgender status to be transferred to women’s prisons. In July, for example, New Jersey officials transferred a man out of a w0mens’ prison after impregnating two jailed women.
Reduxx.info reported in July:
A man serving a 25-year sentence for the brutal murder of a 60-year-old woman was transferred to a female correctional facility after beginning to identify as transgender.
Dejshontaye Goddeszholliwould, who is also known as Dejshontaye Would and Daryl Graves, was convicted in March 2019 of the aggravated manslaughter of his aunt, Patricia Graves.
A third judge on the panel, Judge Marvin Quattlebaum, disagreed with the two judges, saying:
Williams would have preferred to be housed with females, given female underwear and searched by female guards. Maybe classifying an inmate based on their gender identity [instead of their biology] is a better policy. But under that system, female prison staff would have to search inmates with male genitalia and female inmates would have to live and shower with inmates with male genitalia. Those realities create a separate set of concerns and safety issues. And [Fairfax County] Sheriff [Stacey] Kincaid’s responsibilities extend not just to transgender inmates but to all inmates and prison employees.
Quattlebaum also concluded the two Clinton-nominated judges had mischaracterized the law:
The [two-judge] majority relies on the 2008 amendments to the ADA in which Congress specified that the term “disability” “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the [ADA’s] terms” …
In fact, the 2008 amendments bolster my view. While Congress modified parts of the ADA [in 2008], it left intact the provision that placed gender identity disorders outside the scope of the ADA. That means the understanding of that phrase from 1990 should continue to guide our analysis.
Quattlebaum was nominated by President Donald Trump.
Some Republicans, including former Trump and Rep. Kevin McCarthy, have begun to oppose transgenderism, especially in sports. However, few GOP legislators have campaigned against the ambitious and disruptive transgender ideology and its bigger twin, the ideology of Queer Theory.
Stop the woke left’s war on girls’ sports.
Return common sense to America. pic.twitter.com/uWFN6hlxGy
— Citizens for Sanity (@citizens_sanity) August 16, 2022
The case is Williams v Kincaid, No. 21-2030, in the Court of Appeals for the Fourth Circuit.