No. 18-107
In the

Supreme Court of the United States
__________________

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
Petitioner,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Respondent,
and AIMEE STEPHENS,
Respondent-Intervenor.
__________________
On Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit

__________________
BRIEF OF SCHOLARS OF PHILOSOPHY,
THEOLOGY, LAW, POLITICS, HISTORY,
LITERATURE, AND THE SCIENCES AS AMICI
CURIAE IN SUPPORT OF PETITIONER

__________________
DAVID R. LANGDON
Counsel of Record
LANGDON LAW LLC
8913 Cincinnati-Dayton Road
West Chester, Ohio 45069
(513) 577-7380
dlangdon@langdonlaw.com
Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

 i
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................. i
TABLE OF AUTHORITIES ..................................... iii
INTERESTS OF AMICI ............................................ 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT .............................................................. 4
I.

The Sixth Circuit redesigned the law in
terms
of
novel
normative
and
metaphysical assumptions. ............................. 4
A. The court posited a redefinition of
human nature. .......................................... 4
B. The court’s ruling foists an
ideological innovation onto society. ........ 10
C. The court imposed, not a liberal
settlement,
but
a
normative
transformation. ....................................... 15
D. The court’s ruling exceeded the
scope of a legal decision. ......................... 18

II.

The Sixth Circuit’s ruling enshrined an
ideological construct of recent vintage. ........ 19
A. “Gender identity” is not a natural
category. ................................................... 19
B. Gendering human identity entails
ironic consequences. ................................. 24

III.

The Sixth Circuit’s ruling portends social
disruption....................................................... 29

 ii
A. The court’s ruling negates the bases
for common life. ....................................... 29
B. Coercive speech and thought
regulations will attend. ........................... 30
C. Practical harms are certain to
follow. ...................................................... 31
CONCLUSION ......................................................... 35
APPENDIX, LIST OF AMICI CURIAE .................. 1a

 iii
TABLE OF AUTHORITIES
Cases:
A.B. v. C.D. and E.F.,
2019 BCSC 254 (Can.) ....................................... 32
Buck v. Bell,
274 U.S. 200 (1927)............................................ 34
G.G. ex rel. Grimm v. Gloucester County
School Board,
822 F.3d 709 (4th Cir. 2016) ............................. 34
Planned Parenthood of Southeastern
Pennsylvania v. Casey,
505 U.S. 833 (1992)............................................ 11
Roe v. Wade,
410 U.S. 113 (1973)...................................... 11, 18

Other Authorities:
ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW
AND SOCIAL EQUALITY (1996) ....................... 10, 30
ADOLF PORTMANN, A ZOOLOGIST LOOKS AT
HUMANKIND (Judith Schaeffer, trans. 1990) .... 21
Carl Schneider, The Channeling Function in
Family Law, 20 HOFSTRA L. REV. 495 (1992) ... 10
Clare Huntington, Family Norms and
Normality, 59 EMORY L.J. 1103 (2010) ............. 10

 iv
Clare Huntington, Staging the Family, 88 N.Y.U.
L. REV. 589 (2013) .............................................. 10
Elizabeth F. Emens, Intimate Discrimination:
The State’s Role in the Accidents of Sex and
Love, 122 HARV. L. REV. 1307 (2009) ................ 10
GILBERT RYLE, THE CONCEPT OF MIND (2000) ........... 6
JUDITH BUTLER, UNDOING GENDER (2004) ........ 24, 27
Julie Compton, Neither Male nor Female: Why
Some Non-Binary People Are “Microdosing”
Hormones, NBC News, Jul. 13, 2019 .................. 9
M. Dru Levasseur, Gender Identity Defines Sex:
Updating the Law to Reflect Modern Medical
Science Is Key to Transgender Rights, 39 VT.
L. REV. 943 (2015) .............................................. 13
M. J. Legato & J.K. Leghe, Gender and the
Heart: Sex-Specific Differences in the Normal
Myocardial Anatomy and Physiology, in M. J.
LEGATO, ED., PRINCIPLES OF GENDER-SPECIFIC
MEDICINE (2d ed. 2009). .................................... 33
Robert C. Post, Prejudicial Appearances: The
Logic of American Antidiscrimination Law,
88 CALIF. L. REV. 1 (2000) .................................. 14
S. Elizabeth Malloy, What Best to Protect
Transsexuals from Discrimination: Using
Current Legislation or Adopting a New
Judicial Framework, Faculty Articles and
Other Publications, Paper 302 (2010) ......... 13, 14

 v
SHULAMITH FIRESTONE, THE DIALECTIC OF SEX
([1970] ed. 2003) ................................................ 24
Sue Landsittel, Strange Bedfellows? Sex,
Religion, and Transgender Identity Under
Title VII, 104 NW. U. L. REV. 1147 (2010) ........... 9
THE OXFORD DICTIONARY OF ENGLISH ETYMOLOGY
(Charles Talbut Onions, ed., 1966) ................... 20
THOMAS AQUINAS, SUMMA THEOLOGIAE I-II ............ 10

 1
INTERESTS OF AMICI1
Amici, whose names and affiliations are set forth
in the attached Appendix, are distinguished
professors of philosophy, theology, law, politics,
history, literature, and the sciences who have studied,
taught, and published variously on matters
concerning anthropology, marriage and family, sexual
difference, human action, political community,
natural law, ethical theory, bioethics and sexual
ethics, as well as the intersection of these with
jurisprudence, science, technology, social science,
psychology, language, and gender theory. Based on
their expertise, they critically evaluate the constructs
of “gender identity” and “transgender/transitioning
status” that inform the Sixth Circuit’s ruling against
Petitioner, R.G. & G.R. Harris Funeral Homes, Inc.
(Harris Homes).
Amici show that “gender identity” and
“transgender/transitioning status” are metaphysical
constructs of dubious ideological and political origin,
enabled by the technological manipulation of human
biology, and that they are destined to catalyze further
and more radical biotechnical interventions whose
safety and ultimate consequences cannot be known in
advance. They show, moreover, the authoritarian
nature of these constructs, how they impose a divisive

Pursuant to Rule 37.3(a), amici certify that this brief is filed
with written consent of all parties. Pursuant to Rule 37.6,
counsel for amici certifies that no counsel for a party authored
this brief in whole or in part, and no counsel or party made a
monetary contribution intended to fund the preparation or
submission of this brief. Law and Liberty Institute provided
funding for the preparation or submission of this brief.
1

 2
design on the whole of society, present and future, and
undermine the basic liberties of all.
SUMMARY OF ARGUMENT
Harris Homes allegedly violated Title VII’s
prohibition against discrimination “because of sex”
(1) based on “sex stereotypes,” under case law
interpreting Title VII and (2) based on
“transgender/transitioning status,” directly under
Title VII, where “transgender/transitioning status” is
interpreted as a “protected class” under the statute’s
use of the term “sex.”
The issue comes down to whether “sex” in Title VII
can be properly interpreted as “gender identity” or
“transgender/transitioning status” and whether it is a
prohibited “stereotype” to think that “sex” is a nonarbitrary and natural reality, and, while certainly a
source of “identity,” one that is properly and
organically rooted in the body’s sexual dimorphism.
When courts hold that “sex” in antidiscrimination
legislation includes or means “gender identity,” they
also implicitly accept this latter category as real,
which, in the present context, means that they agree
that the relationship between the sexually dimorphic
body and identity are in principle related
accidentally, even arbitrarily. This means that the
relationship is established according to one’s feelings
or choice, rather than organically or naturally.
The effect is to suggest that the organic ties that
make the human person a whole and single being, an
embodied person, are in fact accidental or arbitrary
relations between a material, functionalistic, or
plastic bodily substrate and a separate consciousness

 3
or mind. The human person is thereby conceived in a
fragmented or reductive, rather than a holistic,
natural, or organic way. Accepting this view then
draws into question the reality of men and women,
suggesting that what makes them to be such is only
their feeling about themselves, or the cultural
construction of those feelings, and not their embodied
presence to themselves and to others. Moreover, it
suggests that the organic ties of vital human
communities, such as the family, kinship group, and
larger communities, which are very often mediated in
subtle ways by sexual difference, are artificial and
arbitrary, rather than natural.
Beneath
its
tortured
arguments
about
“stereotypes,” the Sixth Circuit does just this when it
accepts the highly ideological and polemically
freighted category of “gender identity,” as a real and
true replacement for “sex,” effectively rejecting the
natural meaning of the latter as understood
throughout history and across civilizations. It
entangles Title VII (and other nondiscrimination
laws) in metaphysically saturated assumptions.
In fact, the relationship between the body and
subjectivity, which is the question that is really at
stake,
is
inherently
philosophical,
indeed
metaphysical, in nature. It concerns truths about the
very nature of things that precede human
construction and transcend contingent historical
circumstances. Thus, the Sixth Circuit not only takes
sides in an extremely contentious philosophical
debate, but imposes basic assumptions, which are
highly problematic, of one side of that debate on
society as a whole. This will have vast consequences
for our understanding of basic natural human

 4
communities. Were this Court to accept that “sex” can
be replaced by or include “gender identity” and
“transgender/transitioning
status,”
it
would
essentially codify a certain metaphysics or
philosophical anthropology, with vast implications for
society, for communities, and for every man, woman,
and child.
ARGUMENT
I.

The Sixth Circuit redesigned the law in
terms of novel normative and metaphysical
assumptions.
A. The court posited a redefinition of
human nature.

In replacing “sex” with “gender identity” in the
law, the Sixth Circuit has put into place a principle
with vast implications. Its entire decision appears to
begin with the assumption that a transgender
identity is a genuine way of being and thus a
legitimate category. This is apparent throughout its
decision in its introduction of the Respondent as
“Aimee Stephens, a transgender woman,” Pet. App.
5a, who was “transitioning from male to female,” Pet.
App. 36a, and in its consistent use of the feminine
pronoun. As for Stephens’s bodily “sex,” the Sixth
Circuit suggests or assumes a number of alternatives:
that Stephens’s true sex is irrelevant to his “identity”
or absorbed by it; that it is undetermined,
undeterminable, or fluid; or that it is simply subject
to his decision, as they believe it was subject to the
decision of his doctors and parents who “assigned” it,
a highly loaded and tendentious term the Sixth
Circuit takes for granted. Pet. App. 5a.

 5
In accepting the category of “gender identity” as
real, the Sixth Circuit also accepts a metaphysical
category and the entire set of its anthropological
implications as real, all without discussion or
justification. What purports to be a decision about
rights is, more fundamentally, a metaphysical
decision about the very nature of things. After all,
Stephens’s claim is not that he has the right to dress
as he pleases, but rather that he in fact is a woman
and, on that basis, has a right to be treated as such.
He has not challenged the sex-specified dress code.
Stephens Br. 50-51; Pet. App. 18a; 21a, 66a-67a, 86a,
112a, 138a. Nor has he challenged the idea that
expectations for men and women differ with regard to
that dress code. Indeed, he eagerly accepted the sexspecific dress code and its associated expectations.
His claim is rather that he is a woman and, on that
basis, ought to be able to come to work dressed
according to the women’s dress code. The Sixth
Circuit accepts this claim at every turn. Yet if
Stephens is not a woman, his claim falters. He would
have to make a different claim, viz., he would have to
challenge the sex-specified dress code as such. The
validity under Title VII and Price Waterhouse of sexspecified dress codes is an entirely different issue
from the one presented to the Sixth Circuit and, now,
to this Court.
It is therefore important to try to understand what
the Sixth Circuit thinks or assumes is true about
Stephens. Logically, if he is a woman, then it seems
that one of two things must be true. The first is
perhaps more straightforward: he is a woman with a
man’s body. If so, then the anthropological or
metaphysical assumption is Cartesian dualism,

 6
famously derided by British philosopher Gilbert Ryle
as “the dogma of the Ghost in the Machine.”2 This
anthropology would tend to see the body as only a
mechanical substrate, and the mind or consciousness
as a separate substance having little to do with
material reality. Here the purported illicit
“stereotype” would be thinking that a woman cannot
have a male body with male genitalia or, having
“notions of how sexual organs and gender identity
ought to align.” Pet. App. 26a-27a. Anthropologically,
this view presents us with a vision of the human
person that is utterly fragmented, rather than
natural and holistic. Like the ancient gnostic vision,
it implies that the body is a kind of external housing,
possessed by the subject, but less than fully personal.
If the body is an external possession, the implication
is that people ought to be able to treat it like they do
any property. Clearly, such a view has vast
implications for law and society, not only in the area
of sex discrimination, but also, for example, in
relation to rapidly deepening and problematic
applications of biotechnology. Just as importantly, it
treats the relationship between the inner “identity,” a
quality of mind, and the external “body,” a biological
substrate, as entirely arbitrary.
Another logical possibility is that Stephens is a
woman with a woman’s body. Here the sex of the body
has been entirely assimilated into the “gendered”
identity. Here, the allegedly illicit “stereotype” is
what everyone has assumed throughout the history of
civilization, namely, that a male body is in fact a male
body. Or to put it differently, the “stereotype” is to
2

GILBERT RYLE, THE CONCEPT OF MIND 15-16 (2000).

 7
think that penises and testes are male sex organs
(and, by implication, that vaginas, ovaries, and
uteruses are female sex organs). This result implies
doing away with the concept of the sexes altogether.
Indeed, it renders the idea that there even are male
and female, men and women, entirely unintelligible.
It envisions sexually dimorphic bodies as merely
functional parts and pieces, and subjectivities as only
feelings or choices. Like the first alternative, it views
the relationships between these as entirely arbitrary,
and, also like the first alternative, suggests that the
body’s very meaning is entirely dependent on the
feelings or choices of the subject. It is tantamount to
reducing sexual dimorphism to having an extra orifice
or an extra appendage, which cannot have any sort of
real or unchosen bearing on one’s interior subjectivity
any more than one’s eye color. To think that these
extra anatomical features bear any further human,
cultural, or social meaning would be to indulge mere
stereotypes.
This second more radical possibility underlies
what appears to be a straightforward traditional “sex
stereotype” claim based on Price Waterhouse and its
progeny, where female or male employees are
considered to be insufficiently feminine or masculine,
respectively (in their manner or dress). Under that
claim, the Respondent who, in this case wants to dress
femininely, is alleged to have been dismissed for being
“unacceptably masculine for a woman,” Stephens BIO
23, in the same way that the female employee in Price
Waterhouse “failed to be womanly enough.” Pet. App.
15a. While this count attempts to skirt the
transgender/transitioning question, it, of course,
assumes it from the outset. It assumes the

 8
assimilation of the body’s sex by the “gendered”
identity.
Either position entails a radical dissolution of the
way we in fact experience being human. Either
amounts to the forced acceptance of a very particular,
indeed ideological, philosophical anthropology, with a
very particular history and agenda behind it, without
any justification, a justification that could only take
the form of a philosophical argument beyond the
competence of courts.
Of course, the Sixth Circuit has not explicitly
committed to either of these possibilities. Rather, it
implies that illegal stereotyping occurs anytime an
employer makes an adverse employment decision
based on the employer’s “notions of how sexual organs
and gender identity ought to align.” Pet. App. 26a27a. The Sixth Circuit thereby suggests that it is an
illegal stereotype to assume an employee’s “sexual
organs” must place him or her within the “sex binary”
at all and that a decision to live entirely outside it is
protected behavior. A cause of action could arise,
therefore, anytime an employment decision is made
based on the perception that the employee is in any
way “gender non-conforming.” Evidence that this is in
fact what the Sixth Circuit has in mind may be found,
for example, in its footnote 4, which tells us:
[D]iscrimination because of a person’s
transgender,
intersex,
or
sexually
indeterminate status is no less actionable than
discrimination
because
of
a
person’s
identification
with
two
religions,
an
unorthodox religion, or no religion at all. And
“religious identity” can be just as fluid,

 9
variable, and difficult to define as “gender
identity”; after all both have a “deeply
personal, internal genesis that lacks a fixed
external referent.”3
On what basis, and with what evidence, can the Sixth
Circuit make this metaphysical claim?
While the case seems to be based on Respondent’s
reported feeling that he is actually a woman, the
Sixth Circuit’s actual holding implies that Title VII
(and by extension Title IX and many other
nondiscrimination laws) protect a simple choice,
whether permanent or temporary, static or fluid, to
live anywhere within or indeed outside the sexual
binary. Correlative with this conclusion, we now hear
of individuals “microdosing,” or using low doses of sex
hormones, to make themselves “non-binary.”4 We also
read about the endless multiplication of “identities,”
requiring the “LGBT” acronym to expand to “LGBTQ”
and beyond. In this case, one’s adaptation of the body
becomes nothing more than a chosen self-expression,
very much like a chosen lifestyle or manner of dress,
and the body a kind of billboard or propaganda of the
individual for the world. The nondiscrimination
provisions of Titles VII and IX pertaining to sex then
protect, not women or men, but lifestyle choices. This
is not simply a kind of court-enabled mission creep,
Pet. App. 24a-25a, n.4 (citing and quoting Sue Landsittel,
Strange Bedfellows? Sex, Religion, and Transgender Identity
Under Title VII, 104 NW. U. L. REV. 1147, 1172 (2010)) (emphasis
added).
4
E.g., Julie Compton, Neither Male nor Female: Why Some
Non-Binary People Are “Microdosing” Hormones, NBC News,
Jul. 13, 2019: https://nbcnews.to/2xKcfb9 (last visited Aug. 19,
2019).
3

 10
but rather a full-blown inversion of the very idea of
these landmark antidiscrimination statutes.
Perhaps even more aggressively than these two
alternatives, the Sixth Circuit’s embrace of an
entirely fluid and chosen sense of “identity” implies
its entirely arbitrary relation to the body and the
body’s complete subjection in the manner of external
property. It ultimately puts into question the
fundamental anthropological fact, obvious to every
civilization in history, that there really are men and
women, that they are different in important ways,
and that history and civilization depend on their
complementary relationship.
B. The court’s ruling foists an ideological
innovation onto society.
While law in liberal societies often presents itself
as only mediating between interest groups or between
rights and state interests, the fact of the matter is
that law by its nature guides human conduct, and in
so doing it also forms minds. Not only is this an
ancient insight,5 but contemporary legal theorists and
philosophical proponents of the Sixth Circuit’s
decision also recognize it in various forms.6 When law
See, e.g., THOMAS AQUINAS, SUMMA THEOLOGIAE I-II, Q. 90,
a. 1; Q. 92, a. 1.
6
See, e.g., Carl Schneider, The Channeling Function in
Family Law, 20 HOFSTRA L. REV. 495 (1992); Clare Huntington,
Family Norms and Normality, 59 EMORY L.J. 1103 (2010); Clare
Huntington, Staging the Family, 88 N.Y.U. L. REV. 589-651
(2013); Elizabeth F. Emens, Intimate Discrimination: The State’s
Role in the Accidents of Sex and Love, 122 HARV. L. REV. 1307
(2009); Phil. Professors Amici Br. 27 (citing ANDREW
KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 8
(1996)).
5

 11
legitimizes or delegitimizes conduct for public
purposes, practices and beliefs of public life are widely
influenced. Indeed, government and business
bureaucracies, professional ethics codes, schools, and
any number of other social and cultural institutions
are deeply influenced by the legal conclusions of the
courts. This is why litigants contend mightily over
issues that in truth bear more symbolic meaning than
they do substantive consequence.
Even when it claims only to be extending a right,
law communicates and enforces tacit assumptions
about the nature of the human person and his or her
relation to natural human communities, such as
marriage, the family, and society more generally. This
fact was acknowledged, for example, in Planned
Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992), where this Court pointed out that
the concept of liberty announced by Roe v. Wade, 410
U.S. 113 (1973), had profoundly and permanently
changed the way “people have organized intimate
relationships and made choices that define their
views of themselves and their places in society.” 505
U.S. at 856. These considerations are especially
important when the issue strikes directly at the very
core of human nature. It is difficult to think of any
topic closer to the question of human nature than the
division of humanity into men and women, the fact
that the bodies of men and women correlate, that
history, civilization, and indeed the future of the
species depend on this correlation, and that these
facts mean that our ties of kinship are literally
inscribed in our bodies by nature.
If law forms and habituates people to certain
actions and ideas—whether we like it or not—as a

 12
pedagogue, then the question is whether the courts
should use their powerful civil authority and moral
suasion to impose a novel and deeply problematic
metaphysical, normative, and indeed ideological
position, with vast implications for human
relationships and self-understanding, on the entire
society.
What we have shown points to a paradox. Of
course, Stephens ostensibly seeks only to live
according to his claimed identity, by coming to work
as a woman. But this narrow framing of the issue does
not capture the full extent of the demand. Entailed in
the demand is also the legally enforced affirmation of
his claimed identity by all those around him at work,
whether the employer, fellow employees, or clients
and their families. Since Title VII jurisprudence will
undoubtedly influence Title IX jurisprudence, the
demand is also in effect that school administrators,
teachers, students, parents, coaches, and others also
acknowledge “gender identity” in lieu of natural sex.
Of course, other nondiscrimination jurisprudence
would also be affected. In truth, then, the Sixth
Circuit’s holding implies a requirement, by force of
law, that everyone in society affirm Stephens’s
identity. But to affirm his identity means that all
must act, speak, and ultimately think as though he
really were a woman, even if their basic
understanding of human nature and reality, not to
mention their eyes and ears, tell them otherwise.
This implicit demand places this issue completely
outside of earlier discrimination litigation, which was
about the just relations of equality and mutual
dignity between different groups or kinds of people.
Here the disagreement is not most fundamentally

 13
about the just interactions of different categories of
persons in society, but about the truth and reality of
one of those very categories itself.
The Sixth Circuit’s decision implies that the
relationship between identity and the body really is
arbitrary, rather than organic and natural. Yet this
arbitrariness is the mark of the purported
transgender “identity.” The demand is that, at least
for nondiscrimination purposes, we understand
human nature through that lens. Effectively, then,
the Sixth Circuit imposed the crux of the gender
identity movement (turning as it does on the idea that
the relationship between identity and the body’s
sexual dimorphism is entirely arbitrary) onto the
sexual status of every man, woman, and child in the
country. All of them, even if their bodies and identity
happen to “align,” are understood according to the
model of transgender arbitrariness.
Gender identity advocates often lament that
“American society enforces a rigid, binary sex/gender
system.”7 They urge a social revolution to eliminate
what they consider a “simplistic understanding of sex,
as two fixed binary categories.”8 They hope to reverse
S. Elizabeth Malloy, What Best to Protect Transsexuals from
Discrimination: Using Current Legislation or Adopting a New
Judicial Framework, Faculty Articles and Other Publications,
Paper 302, at 283 (2010). https://bit.ly/2KPVth1.
8
Malloy writes that equality for transgender individuals
“would be difficult to achieve because it requires the
reconstruction of American society’s beliefs, assumptions, and
norms associated with the binary sex/gender system.” Id. at 285.
See also M. Dru Levasseur, Gender Identity Defines Sex:
Updating the Law to Reflect Modern Medical Science Is Key to
Transgender Rights, 39 VT. L. REV. 943, 946 (2015).
7

 14
what they call “the erasure”9 of “transgender
experience,”10 and “to alter the norms by which sex is
given social meaning.”11 Setting aside the fact that
these claims assume that transgender identity is a
natural or chosen variant of human sexuality, the
project entails rebuilding society according to an idea
advocates take to be universal: the transgender idea
of an arbitrary relationship between the sexed body
and the mind, all for the sake of the “erased”
transgender experience.
But society is structured as it is, and across every
civilization, because the “experience” of the vast
majority of people is not that of transgenderism,
hence also not that of arbitrariness. Assuming the
argument to be true, that a society built on a
metaphysics of sex different from one’s own
“experience” is a form of “erasure” and alienation,
would it not follow that a society reshaped on the
assumptions of the gender identity movement would
effectively “erase” or nullify the experience of the vast
majority? Would it not constitute a form of alienation
for them—personally and certainly legally? Would it
not, therefore, be better to find other ways to
accommodate or help those few persons with gender
dysphoria than transforming the whole society
according to the dictates of the ideologically and
agenda-driven gender identity movement?

Malloy, supra note 7, at 285.
Id. at 287.
11
Phil. Professors Amici Br. 27, n.19 (citing Robert C. Post,
Prejudicial Appearances:
The Logic of American
Antidiscrimination Law, 88 CALIF. L. REV. 1, 17, 20 (2000)).
9

10

 15
C. The court imposed, not a liberal
settlement,
but
a
normative
transformation.
The Sixth Circuit does make a vague attempt to
claim neutrality with respect to the underlying
metaphysical question, when it rejects the need to
decide whether “biological sex” is mutable or
immutable. Pet. App. 26a. It did so when responding
to Harris Homes’s affirmative defense, based on the
substantial burden entailed in “put[ting] [Petitioner]
to the choice of engag[ing] in conduct that seriously
violates [his] religious beliefs [or] . . . facing serious
consequences.” Pet. App. 51a (internal quotation
marks omitted). Here, the court makes use of free
speech jurisprudence to argue that Harris Homes’s
continued employment of Stephens would not imply
that it endorses the assumption that Stephens really
is a woman or that sex really is mutable. Pet. App.
55a. In claiming to prescind from any judgment
concerning these metaphysical matters, the Sixth
Circuit suggests that only a modus vivendi or an
“agreement to disagree” is required between Harris
Homes and Stephens.
In relation to Harris Homes’s customers, this nonendorsement view is manifestly false. And on closer
inspection, the claimed neutrality concerning the
underlying question of truth is clearly incorrect. For
one thing, the Sixth Circuit’s opinion is filled with
normative language. Even if we grant the idea that
the court has in mind a liberal settlement, a modus
vivendi, between alternative but irreconcilable
private doctrines, to suggest that Harris Homes,
individuals, and communities can maintain private
philosophical and ethically informed stances

 16
(legitimate at the “private level”) which are in
absolute tension with a court-mandated public stance
saturated with the aforementioned bias, is to suggest
a sort of civic schizophrenia, one that can only resolve
itself (for example, through the public education
system) in a policy delegitimization of the now
thoroughly “privatized” understanding of the vast
majority of citizens. When a school requires a tenyear-old child to affirm in word and deed that a
classmate whom he knows is a boy is now a “girl,” this
does not simply affirm the second child’s right to selfexpression. It radically calls into question the
meaning of “boy” and “girl,” not just for the classmate,
but for everyone, including the first child himself, and
in relation to everyone in his life, from his mother and
father, to his brothers and sisters, and all of his
friends and relatives. Insofar as “gender identity” is
an ideological construct, this is of course the very
intention of its advocates. It is simply impossible for
it not to shape everyone’s understanding of himself or
herself, of others and of the world, without choice or
even full awareness.
Moreover, the Sixth Circuit’s assumption that
Stephens really is a woman amounts to a
prejudgment of the case’s basic framework or context,
both undercutting the court’s claimed metaphysical
neutrality and placing the legal issues to be decided
in a certain light. It suggests that Harris Homes in
fact did immorally or unjustly discriminate against
Stephens. The question then becomes: Is there a
remedy under law for this unjust discrimination? This
already casts a very negative light on Harris Homes.
The Sixth Circuit’s assumption that what Stephens
says is true about himself really is true frames the

 17
entire legal analysis in a light favorable to Stephens
and prejudicial to Harris Homes. In effect, then, the
Sixth
Circuit’s
metaphysical
presuppositions
constitute an unannounced but pervasive normative
stance about who is fundamentally right and who is
wrong in this litigation.
In sum, then, the Sixth Circuit’s position is that
Harris Homes not only must provide equal space for
Stephens’s self-expression, but that they (and, by
implication, their customers and, indeed, the rest of
society) accept that Stephens really is a woman. By
implication, the circuit court also requires that all
accept—by word, act, and finally thought—that it is
possible for a man to “become a woman” or a woman
to become a man, if they so decide; that any human
with a male anatomy might very well “be a woman;”
and that any human with female anatomy might “be
a man.” The Sixth Circuit furthermore implies
acceptance of the idea that “fathers” might give birth
or breastfeed, or, for that matter, that mothers might
impregnate fathers. But these results drain man and
woman, mother and father of any meaning at all,
making them unintelligible, and therefore incapable
of legal cognizance. By appropriating gender identity
ideology, the circuit court demands, not tolerance of,
but conformity to those different views and ways. The
Sixth Circuit requires validation of what is, in effect,
an archetypal redefinition of man and woman, indeed
the abolition of man and woman as we have
heretofore known them.

 18
D. The court’s ruling exceeded the scope of a
legal decision.
The Sixth Circuit makes fundamental assumptions
about reality and the nature of the human being,
assumptions that legal analysis cannot justify. Indeed,
the questions it takes up are not legal in nature but
belong to the domain of philosophy. They involve such
basic anthropological questions as how we should
understand the relationship between the body and
subjectivity. Even the sciences can only presume an
answer to such questions and then proceed with their
empirical analyses on that basis. These questions,
which philosophers have debated since Plato, are
irreducibly metaphysical. Consequently, whatever
“science” or “medicine” there may be on this topic is
itself highly contentious, novel, and extremely
susceptible to ideological influence and error.
In Roe v. Wade, this Court ruled that the state
could not impose one theory of life over others. 410
U.S. at 162. Here, the Sixth Circuit is attempting to
impose its ideologically saturated concept of “gender
identity” on the entire population, overruling their
connatural, pre-ideological perception of reality. The
question could be boiled down to this: Which is more
grounded in reality, the actual bodily nature of the
person as a sexual being or his or her feelings or
choices about sexuality? If we answer in one way,
one’s physical appearance (through clothing or
anatomy) might be altered to fit one’s sense of
identity. If the other, medicine should look to helping
the person (often children or adolescents) with their
feelings of alienation from themselves. This is not a
question law can answer, and it is not a question to be
decided willy-nilly by the courts.

 19
Our point is not based on principles of federalism
or any particular theory of judicial interpretation.
Rather, it is simply based on the substance of legal
rationality. While courts inescapably make decisions
with philosophical import, law is not philosophy. This
Court should be chary of providing legal answers to
fundamental philosophical questions. Such questions
should in fact be fought out in the academy and in the
development of culture and society. The risk of
codifying falsehood is high, especially when the
matter at hand concerns such highly controversial
and unproven notions about basic human categories,
the undermining of which would lead to vast and
unpredictable social conflict and accelerate social and
cultural disintegration. What if future studies were to
conclude definitively that an incongruence between
an individual’s “identity” and his or her body is in fact
a mental illness and that gender ideology is harmful
to the young? There would be a constitutional
impediment to acting responsibly on this knowledge
and maybe even an a priori obstacle to discovering it
in the first place.
II.

The Sixth Circuit’s ruling enshrined an
ideological construct of recent vintage.
A. “Gender identity”
category.

is

not

a

natural

Until very recently, few had ever heard the term
“gender identity.” Apart from the rare exception of
genital ambiguity, children knew themselves to be
boys and girls and recognized their fathers and
mothers as men and women. Nobody needed
philosophy, advocates, or ideologues to know what sex
he or she was, or a contrived, technical lexicon to

 20
name this fundamental reality. In lived human
experience, the knowledge of oneself and of one’s
parents as a boy or a girl, a man or a woman, was
connatural—something one could not not know and
the foundation of much of what one did know. It was
knowledge given at birth, imbibed quite literally, as it
were, with a mother’s milk. It was among the first and
most reliable of the things we know, an indispensable
condition for the basic division of the world into kinds
and for recognizing a given order that makes a
common life, a common language, and a common
culture possible in the first place. Even in those rare
cases of sexual ambiguity, or cases such as the ancient
Indonesian bissu, anachronistically invoked by
activist scholars to establish a historical antecedent
for the contemporary transgenderism phenomenon,
the intelligibility of the deviations from the natural
norm depended upon the more basic intelligibility of
the norm itself.
The terms “sex” and “gender,” far from calling this
connatural knowledge into question, were used
synonymously, each referring to that bodily
distinction by which individuals of a species generate,
as the Oxford English Dictionary attests, whether in
reference to individuals, as is the case with both
terms, or, grammatically, in the case of “gendered”
nouns. Tellingly, the root of the latter term is found
also in nouns such as “generation,” “progeny,” and the
verb “engender.”12 Yet, if the initial reference in these
terms is to the body, this bodily nature is in fact
inextricably and necessarily woven together with
social and cultural meaning. As biologist Adolf
Cf. THE OXFORD DICTIONARY OF ENGLISH ETYMOLOGY
(Charles Talbut Onions, ed., 1966).
12

 21
Portmann notes, the human mammal is most in need
of social life and education—even requiring an “extra
uterine” year in the “social uterus” of the family to
develop those quintessentially human features of
speech and upright posture.13 Similarly, this
inextricable nexus accommodates a distinction
between the whole reality of an individual man or
woman and the “expression” of this reality under
specific historical and cultural circumstances.
Each entails the possibility of injustice. But in
neither case is this fundamentally a question of
imposing upon a merely “biological” substrate a
construct—a “stereotype” or “expectation”—that is
essentially extrinsic and thus oppressive. The
bifurcation of human beings into merely “biological”
and “social” aspects is itself a construct, with its own
traceable philosophical history, an abstraction
imposed upon human nature that is otherwise
undivided in the way we live and experience it. The
role of educators and society, far from being
essentially oppressive, is a necessary implication—
however much it might in various historical contexts
be flawed—of the very kind of sexually differentiated
individual the human being is, namely, a deeply social
and rational one. It is in the very nature of girls and
boys as dependent rational animals to need the
family, teachers, and society at large to become men
and women. The same is true of motherhood and
fatherhood, now similarly bifurcated into “biological”
and “social” dimensions. Being rational, the
individual man and woman live out these vocations,
ADOLF PORTMANN, A ZOOLOGIST LOOKS AT HUMANKIND 3162 (Judith Schaeffer, trans. 1990).
13

 22
not just instinctively, but freely, marking no division
between the “biological” acts of begetting children and
securing their bodily sustenance and culturally
inscribed activities such as education. However much
philosophers might bifurcate the human being in
thought, it was not possible, in the lived reality of
human sexual difference, to conceive of a living,
acting “I” entirely separable from, and indeed
overriding, his bodily existence as a man or woman.
To “express” one’s sex in particular cultural and social
forms meant becoming “more” of what one already is,
not something else.
In current parlance, “gender” is used in a sense
opposite its original meaning, to designate something
other than “sex,” and only arbitrarily related to it (i.e.,
either a “social construct” or an “inner feeling”). This
remains the case even where “sex” and “gender”
happen to align. The fashionable prefix “cis” is meant
to suggest this. Understood in this sense, the current
gender construct overrides the most basic fact of the
sexually distinct human body, transparent in the root
of the very word it takes for itself (gener), namely, that
each sex has a power to generate that can only be
actualized with the corresponding power belonging to
the opposite sex, the very phenomenon by which we
exist as sexual, and exist at all.
In rhetorical and legal contexts, the appeal to
“gender” as an inner feeling oscillates as needed
between
a
quasi-deterministic,
“naturalistic”
understanding and a radically libertarian, voluntarist
understanding, with “gender non-conformity”
expressing the fundamental liberty of self-definition.
That the Respondent who has “known that she is
female for most of her life,” Stephens BIO 1, does not

 23
preclude the possibility of going back to “present as a
man,” J.A. 112-13, suggests just this oscillation.14
What, in the end, does it matter if one has a “deepseated” feeling? Why not just a choice? Indeed, it is
noteworthy that despite the many references to the
Respondent’s feelings, they are not used as an
argument. It is enough that Stephens has declared
himself to be a woman for him to “be a woman,” and
treated as such
In fact, in the most authoritative and
contemporary sense of “gender,” there is no need to
refer to “normative identities” whatsoever. “Gender”
functions precisely to release us from any prevenient
order—by reducing it to nothing—a temporary
“assignment,” making clear the path for a groundless
“deed.”15 This appears to be the Sixth Circuit’s view
when it speaks of “gender identity” as “fluid, variable,
and difficult to define,” and “lack[ing] a fixed external
referent.” Pet. App. 24a-25a n.4.
The historical process whereby “gender” came to
acquire a sense opposite its original meaning is no
more politically and ideologically innocent than it is
metaphysically innocent. The “gender” of gender
For example, parties in the present case use the definition
of an “inner sense of being male or female, ” Pet. App. 204a, while
the Sixth Circuit resorts to the definition of something “fluid,
variable, and difficult to define,” which much like religion,
should be “authenticat[ed] by simple professions of belief.” Id. at
24a-25a n.4, 30a.
14

We note the use of the freighted term “assignment” by the
Sixth Circuit, Pet. App. 5a, 23a, 28a, by the American
Psychological Association, Am. Psychol. Ass’n Amici Br. at 9, 10,
11, 17, and by a group of Philosophers. Phil. Professors Amici Br.
at 7, 8, 9.
15

 24
theory is not a natural category recently discovered
amidst the progressive increase of scientific
knowledge and understanding, but an ideological and
political construct of dubious origins. There is no
philosophical or scientific consensus regarding its
nature and status. The problematization of “gender
identity” has only arisen because of a biopolitical
ideology.
Indeed, the re-invention of gender looks forward to
nothing less than a radical re-invention of kinship,
based on the same artificial and arbitrary bonds the
new “gendered” subject has with his or her own
body.16 The new “functional” and “intentional”
definitions of motherhood and fatherhood entailed in
this arbitrary relation presuppose and necessitate
further biotechnical interventions not only with
respect to so-called “sex assignment,” but with respect
to procreation and reproductive biology. The new
transgendered regime demands the possibility of
producing and acquiring children by “both sexes
equally, or independently of either.”17 Were this Court
to confirm the Sixth Court’s decision, it would codify
this wide-ranging brave new world for the whole of
society.
B. Gendering human identity entails ironic
consequences.
The negation of reality at the heart of gender
theory results in some ironic consequences in the
present instance. The first concerns the relation of
See JUDITH BUTLER, UNDOING GENDER, 102-30 (2004).
SHULAMITH FIRESTONE, THE DIALECTIC OF SEX 11 ([1970]
ed. 2003).
16
17

 25
“gender,” “gender identity,” or “transgender/
transitioning status” to “sex.” Whereas it is
considered a forbidden “stereotype” to factor a
person’s sexual organs into his or her “gender
identity,” it is precisely the “reference” of “gender
identity” to those same organs that grounds the
argument for including “gender identity” under “sex”
according to Title VII. This argument is made by a
group of philosophers and gender theorists, among
others, who hold that Stephens has a claim under
Title VII and the anti-stereotyping principle of Price
Waterhouse because “gender” bears an “inextricable
tie,” “reference to,” or “intrinsic relation to” “sex”
through “nonconformity” with it. Phil. Professors
Amici Br. 1, 3, 7, 10-12; Am. Psychol. Ass’n Amici Br.
7, 11. Like the Sixth Circuit’s decision, the argument
about the “relation” is entirely question-begging. It
does not justify, but rather presumes, its terms as if
they were self-evident ontological categories.
While its definition of “gender non-conformity”
presumes the underlying distinction (“relation”)
between “sex” and “gender,” the argument appears
carefully crafted so as to include in Stephens’s
“gender presentation,” things like speech patterns,
attire, and hairstyle. Phil. Professors Amici Br. 17
n.12, while excluding the underlying reality that
would make a “presentation” conforming or nonconforming in the first place. Thus, immediately after
framing the whole question according to transgender
categories
and
asserting
the
Respondent’s
transgender status, the brief changes tack and insists
that “this fact is not essential to the case.” Id. at 7.
Yet this “inessential” fact is essential to the
philosophers’ argument. For it is only by declaring

 26
this fact “inessential” and ruling out any “reference”
back to the Respondent’s “former” “sex” that they can
establish a parallel with the example of a woman who
was “assigned ‘female’” at birth and identifies as a
woman. She “should have no less recourse to a claim
of discrimination if she is terminated for not wearing
makeup, having short hair, or otherwise not
conforming to traditional gender stereotypes.” Id.
This is just a sleight of hand and not only because
accepting this argument means accepting the loaded,
question-begging categories in which the question is
framed and the argument tendered. It also conceals
the question that the Court is really being asked to
decide—whether Stephens is a woman—the question
that has been decided a priori.
Further obfuscation comes with the addition of the
loaded term “identification” to “behavior” and
“appearance,” id. at 5, together with the qualifier
“presumed” to “sex.” Id. at 6. “Identifying,”
“behaving,” and “appearing” are three very different
kinds of activity, three ways of “referring” or “being
related” to sex. The first involves a truth claim while
the others do not. Only by blending these terms and
obscuring this distinction could this case plausibly be
conceived as a case of “gender non-conformity” to
begin with.
But the Respondent’s case is not parallel to a
woman who is “terminated for not wearing makeup,
having short hair, or otherwise not conforming to
traditional gender stereotypes.” Id. at 7. It is not an
ordinary case of “gender non-conformity” at all.
Stephens does not hold that men should be able to
defy stereotypes by dressing as women nor that dress
codes unjustly “stereotype” women. Rather Stephens

 27
wishes to adhere to this “stereotypical” dress code as
a woman. The appeal to the anti-stereotyping
principle of Price Waterhouse presumes that the
respondent really is a woman and that
acknowledgment of embodied reality is itself a
stereotype. It is Stephens’s claim to be a woman that
the Court is being asked to affirm for all practical and
public purposes. The philosophers’ brief conceals this
by obscuring rather than clarifying important
distinctions that differentiate Stephens’ claims from
ordinary discrimination claims under Title VII.
As for the actual “reference” in question here, the
relation by which “gender identity” “refers to” sex is a
negative one, canceling out or reducing to nothing the
very reality on which its intelligibility depends. 18 To
say, then, that “discrimination” on the basis of
“gender non-conformity” is discrimination “because
of” sex, when it is the very function of “gender” and
“gender non-conformity” to negate sex is tantamount
to saying that it is discrimination because of nothing.
The second irony is already indicated in the first.
By insisting on this negative “reference,” the concepts
of “gender identity” and “gender non-conformity”
negate the very grounds for distinguishing reality
from a stereotype.19 Thus, “gender identity”
This is clear in the terms “non-conformity,” Pet. App. 22a,
27a, “change in,” Pet. App. 24a, and “disjunction.” Pet. App. 26a.
In gender theory, there is a clear bias in favor of the negative
relation. See Butler, supra n. 16, at 8, 217, 222.
18

Commonly understood, “stereotypes” are identified as such
precisely on the grounds of knowing what is essential to be being
a girl (or woman) or boy (or man). A girl who likes to climb trees,
for example, does not cease to be a girl because she likes to do
19

 28
effectively becomes a bundle of stereotypes of the
most frivolous sort, elements in the “part [an
employee] profess[es] to play,” Pet. App. 202a, which
are inessential to sexual difference, such as a
preference for lipstick, skirts, and feminine
hairstyles. Now a man declares himself to be a
“woman” precisely on account of such things. For
without a prevenient order of nature, such
stereotypes are all that is left for determining what
feeling like a member of the opposite sex must be like.
The offense to women, especially, has not been lost on
many feminists, who are rightly concerned about
stereotypes in the ordinary sense of the term, which
could only be recognized as such by knowing what a
woman or a man is in the first place.
The gender identity ideology is not metaphysically
neutral. It is not the product of a progressive increase
in our scientific understanding of the natural order,
but of a series of politically motivated and
technologically enabled decisions to negate that order
and codify in its place a new biopolitical regime as a
matter of constitutional principle.
Since the question at issue concerns the
fundamental realities of human nature—man,
woman, mother, father, and child—redefining these
realities for all practical and public purposes would
place a substantial burden on everyone; for one
cannot alter these fundamental realities without
something boys tend to like more, since the predilection for
climbing trees is not what makes a boy a boy. But now the Sixth
Circuit would dismiss the very criteria by which a stereotype can
be known to be such either by simply ignoring the criteria or by
considering a positive reference to it a “stereotype.”

 29
thereby altering everything else. The consequences of
such a decision would be vast, far exceeding the
narrow question of rights in which this ideology here
presents itself.
III. The Sixth Circuit’s ruling portends social
disruption.
A. The court’s ruling negates the bases for
common life.
By asserting the right to be treated as a woman,
Respondent is effectively seeking the legal
redefinition of human nature and requesting the law
to usurp philosophy and science as the definer of
truth, a function heretofore characteristic of
totalitarian political systems. If there is anything
naturally held in common among human beings, a
necessary supposition for human society and a
condition of possibility for any conception of a common
good beyond that of a mere order among otherwise
warring factions, it must be our common nature, even
if the meaning of nature is not entirely self-evident or
is contested.
It is thus impossible to redefine human nature for
just one person. Since “nature” is common, by
definition, its re-definition necessarily applies to
everyone. If, therefore, “gender” is merely a selfappropriated identity distinct from and arbitrarily
related to one’s sexually differentiated body, now
conceived as a meaningless “biological” substrate,
then there is no longer any such thing as man or
woman as heretofore understood. From the vantagepoint of the new anthropology, the “alignment” of
one’s “gender identity” and the sex “assigned” to one’s
body at birth can be no more due to our being male or

 30
female, or any less arbitrary, than with those who are
misaligned. We are all transgender under this
thought regime, even if “gender” and sexual “identity”
happen to coincide for the vast majority of people.
Nothing could be nearer to us than the nature we
have in common. It must first be regarded less as an
object of reflection numbered among our experiences
(though of course it is that as well) than the
foundational condition of possibility for experiences of
every kind.20 Realities as fundamental as man and
woman, mother, father, and child, cannot therefore be
overturned and redefined without thereby affecting
everything else, as a stone dropped into a pond sends
out ripples in every direction. For those who “seek[] to
reconstruct social reality” through the imposition of
law, this is precisely the point.21 But social reality
cannot be reconstructed in this fundamental way
without imposing a tremendous burden on everyone,
without denying their basic constitutional liberties,
and without great harm to society as a whole, its most
vulnerable members, in particular.
B. Coercive
speech
and
regulations will attend.

thought

Such a comprehensive re-definition of human
nature would necessarily require the forced
Whether one regards human “nature” as a historical
accident, or as so thoroughly mediated by cultural forms as to be
inaccessible to thought apart from those forms, it remains the
case that human self-creativity proceeds from something given
that we do not create. This follows from the simple and universal
fact that we are all born.
21
Phil. Professors Amici Br. 27 n.19; KOPPELMAN, supra n. 6,
at 8.
20

 31
imposition of a new language—already evident in the
media and in schools, universities, and workplaces
throughout the country—and the re-education of
everyone’s understanding of self, of others, and of the
whole visible world. It would require everyone to live
for all public and practical purposes (and in spite of
all contrary evidence) as if their pre-ideological
experience of reality—beginning with themselves,
their mothers, and their fathers—were officially false,
a mere “stereotype.” The burdens upon free speech,
free exercise, and perhaps most fundamentally, free
thought, are obvious. The resultant regime would
require everyone to live for all public and practical
purposes as though what is patently false were
officially true, requiring them to think and say, for
example, that a certain man “is a woman,” or might
be one were he to feel like or choose to be one. To
repeat, by confirming the gender construct, the law
would foist a “trans-world” on everyone, forcing them
to deny their most basic apprehension of reality and
the speech that signifies it, the very conditions for a
shared life.
C. Practical harms are certain to follow.
Harmful practical consequences follow as a matter
of logical necessity. Imposing new “natural norms”
and a correlative set of rights would accelerate social
division by triggering a tidal wave of litigation—in
schools, workplaces, even in churches and families—
wherever someone does not adhere to the new thought
and speech norms. Recently a British Columbia court
authorized a 14-year-old girl who “gender identified”
as male to undergo hormone therapy at a doctor’s
suggestion and against her father’s wishes and
forbade him from referring to the child by feminine

 32
pronouns. This is not unrealistic as a harbinger of the
future.22
The British Columbia example is a reminder that
gender identity theory is not simply a political
ideology, but a biopolitical one, occasioned by and
inseparable from biotechnical intervention in and
manipulation of these basic human realities. Were
this Court to confirm the gender construct, it would
give legal impetus to what can only be described as a
vast science experiment performed on the nation’s
children, since it is impossible to know with certainty
the effects of gender reassignment surgery, puberty
blocking hormones, and medically induced infertility
before a generation of young people has undergone
them. This violates the most basic tenets of sound
medical
ethics,
the
restriction
of
human
experimentation, creates crises of professional and
religious conscience for myriad medical professionals,
and is a potential catalyst for a number of medical
dilemmas and incongruencies.
Doctors, who would be subject to discrimination
laws based on the newly codified “gender identity,”
could be compelled to provide services catering to the
whole variety of bodily “adjustments” desired to
match the felt or chosen “identities” of their patients,
as though all of their scientific knowledge of the
human organism no longer mattered. And, in a sort of
tragic irony, just as the growing field of sex-specific
epigenetics shows that medicine must make its
judgments and tailor its therapies in part on the
actual bodily sex of the patient, that same body will
have been declared by law and society—perhaps even
22

A.B. v. C.D. and E.F., 2019 BCSC 254 (Can.).

 33
the patient—irrelevant. The burden would be worse
for the patients themselves who, in addition to
suffering the objective violence and mutilation done
to them in their “sex-changes,” would now, as heart
transplant patients, for example, depend upon the sex
they have “ceased” to be, for their very lives.23 This
schizophrenia concerning the human body would
become all the more absurd, and all the more
deleterious to the body politic, the more we follow this
ideology to its logical conclusion.24
Short-sighted affirmation of gender identity
theory would create a legal disincentive to any
objective, scientific inquiry into the deleterious effects
of therapies and procedures necessary to actualize the
officially authorized ideology. We are already seeing
evidence of this as the guild of “credentialed experts”
shouts down any research that possibly contradicts
the new sexual orthodoxy. History has not looked with

M. J. Legato & J.K. Leghe, Gender and the Heart: SexSpecific Differences in the Normal Myocardial Anatomy and
Physiology, in M. J. LEGATO, ED., PRINCIPLES OF GENDERSPECIFIC MEDICINE 151-61 (2d ed. 2009).
24
Little serious thought has been given to the destabilizing
consequences of introducing the sexually dis-embodied “fluid”
personal subject into the body politic. Who, after all, is the
Respondent? What about other aspects of human embodiment—
age, race, disability—from which “identities” could also be
severed, so that subjects could “cease to be” what they were and
“become” whatever their minds wish. One could no longer trust
in a person’s continuity of identity from year to year, or moment
to moment. Introducing such fluid personal subjects into the
body politic would completely undermine the basis for a common
political life, even for attributing human agency and
responsibility to people for their deeds.
23

 34
favor on prior instances when the Court has aligned
itself and the nation with ideologized science.25
Were this Court to impose the gender construct, it
would also burden any institution employing persons
of one or the other sex exclusively (e.g., the WNBA).
Moreover, it would invalidate sex-specific privacy
facilities, since these are based, not on self-professed
“identities,” but on hard and fast embodied ones.26
Finally, imposing the gender construct would
mandate stereotyping of the worst sort. Now society
would have to accept someone who claims to be a
woman or a man, based precisely on those things
which are not constitutive of being a woman or a man.
“Sex” for women, would be reduced to mere
appearance without the underlying substance, the
naturally dimorphic body. If the Court wishes to
prevent discrimination based on stereotypes, it
should not inscribe into law this gnostic vision of a
disembodied self and its dream of conquering or
escaping nature and the body.

See Buck v. Bell, 274 U.S. 200 (1927).
See, e.g., G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822
F.3d 709, 720-31 (4th Cir. 2016) (Niemeyer, J., concurring in
part, dissenting in part), vacated by 137 S.Ct. 1239 (2017).
25
26

 35
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted,
David R. Langdon
Counsel of Record
Langdon Law LLC
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West Chester, Ohio 45069
(513) 577-7380
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Counsel for Amici Curiae

 APPENDIX

APPENDIX

LIST OF AMICI CURIAE 1a

1a
LIST OF AMICI CURIAE
1.

Hadley P. Arkes, Ph.D.
Edward N. Ney Professor of Jurisprudence
and American Institutions emeritus, Amherst
College; Founder and Director, James Wilson
Institute on Natural Rights & the American
Founding

2.

Helen Alvare, J.D.
Professor of Law, Antonin Scalia Law School,
George Mason University

3.

Erika Bachiohi, J.D.
Fellow, Ethics & Public Policy Center;
Research Scholar, Abigail Adams Institute;
2018 Visiting Scholar, Harvard Law School

4.

Francis J. Beckwith, J.D., Ph.D.
Professor of Philosophy & Church-State
Studies, Associate Director of the Graduate
Program in Philosophy, Baylor University

5.

Philip Blosser, Ph.D.
Professor of Philosophy, Sacred Heart Major
Seminary, Detroit

6.

Gerard V. Bradley, J.D.
Professor of Law, the University of Notre
Dame School of Law, and Director, Natural
Law Institute

7.

J. Budziszewski, Ph.D.
Professor of Government and Philosophy,
University of Texas, Austin

 2a
8.

David S. Crawford, J.D., M.T.S., S.T.L.,
S.T.D.
Associate Professor of Moral Theology and
Family Law, Pontifical John Paul II Institute
for Studies on Marriage and Family,
Washington, D.C.

9.

Patrick J. Deneen, Ph.D.
Professor of Political Science, David A.
Potenziani Memorial College Chair,
University of Notre Dame

10.

George W. Dent, Jr., J.D.
Schott - van den Eynden Professor of Law
Emeritus, Case Western Reserve University
School of Law

11.

G. Kevin Donovan, M.D., M.A.
Director, Pellegrino Center for Clinical
Bioethics, Professor of Pediatrics, Georgetown
University Medical Center

12.

Justin B. Dyer, Ph.D.
Professor of Political Science, University of
Missouri, Director of Kinder Institute on
Constitutional Democracy

13.

Anthony Esolen, Ph.D.
Writer-in-Residence at Magdalen College of
the Liberal Arts

14.

David F. Forte, J.D.
Professor of Law, Cleveland State University,
Cleveland Marshall College of Law

15.

Angela Franks, Ph.D.
Professor of Theology, St. John’s Seminary.

 3a
16.

John S. Grabowski, Ph.D.
Associate Professor of Moral Theology/Ethics,
The Catholic University of America

17.

Michael Hanby, Ph.D.
Associate Professor of Religion and Philosophy
of Science, Pontifical John Paul II Institute for
Studies on Marriage and Family, Washington,
D.C.

18.

Richard F. Hassing, Ph.D.
Research Associate Professor of Philosophy,
School of Philosophy, The Catholic University
of America

19.

Elizabeth R. Kirk, J.D.
Director, Institute for Faith & Culture, St.
Lawrence Catholic Campus Center, University
of Kansas

20.

Lynne Marie Kohm, J.D.
John Brown McCarty Professor of Family
Law, Regent University School of Law

21.

V. Bradley Lewis, Ph.D.
Associate Professor, School of Philosophy, The
Catholic University of America

22.

Guy Mansini, S.T.D.
Max Seckler Chair of Theology, Ave Maria
University

23.

John C. McCarthy, Ph.D.
Associate Professor, School of Philosophy, The
Catholic University of America

 4a
24.

Margaret Harper McCarthy, S.T.L, S.T.D.
Associate Professor of Theological
Anthropology, the Pontifical John Paul II
Institute for Studies on Marriage and Family,
Washington, D.C.

25.

Mellissa Moschella, Ph.D.
Assistant Professor, School of Philosophy, The
Catholic University of America

26.

Jessica Murdoch, Ph.D.
Associate Professor of Theology, Villanova
University

27.

Anca M. Nemoianu, Ph.D.
Lecturer in Linguistics, The Catholic
University of America

28.

Walter Nicgorski, Ph.D.
Professor Emeritus of Political Theory,
University of Notre Dame

29.

Michael Pakaluk, Ph.D.
Ordinary Professor of Ethics and Social
Philosophy, The Catholic University of
America

30.

C.C. Pecknold, Ph.D.
Associate Professor of Theology, The Catholic
University of America; Fellow, Institute for
Human Ecology; Chairman, Academy of
Catholic Theology

31.

Daniel Philpott, Ph.D.
Professor of Political Science, University of
Notre Dame

 5a
32.

Christian Raab, S.T.D.
Assistant Professor of Systematic Theology,
Saint Meinrad Seminary and School of
Theology

33.

Peter A. Redpath, Ph.D.
Rector and Senior Fellow, Adler-Aquinas
Institute; Chair of the Graduate Concentration
in Thomistic Studies, Holy Apostles College;
Senior Fellow, Center for the Study of The
Great Ideas; contributing scholar, University
Abat Oliba Doctoral Philosophy program,
Barcelona, Spain

34.

Eugene F. Rivers, III
Director, Seymour Institute for Black Church
and Policy Studies

35.

Jacqueline C. Rivers, Ph.D.
Lecturer in Sociology and African American
Studies, Harvard University

36.

Deborah Savage, Ph.D.
Clinical Professor of Philosophy and Theology,
St. Paul Seminary School of Divinity,
University of St. Thomas

37.

Nathan Schlueter, Ph.D.
Professor of Philosophy and Religion,
Hillsdale College

38.

Susan Selner-Wright, PhD.
Associate Professor of Philosophy, St. John
Vianney Theological Seminary

 6a
39.

Janet E. Smith, Ph.D.
Professor of Moral Theology, Ret., and
Chairholder of the Fr. Michael J. McGivney
Chair of Life Ethics, Sacred Heart Major
Seminary

40.

R.J. Snell, Ph.D.
Director of Academic Programs, The
Witherspoon Institute

41.

William Stigall, M.D., M.A.
Assistant Professor of Philosophy, University
of Dallas; Pediatric Intensive Care Physician

42.

Dennis M. Sullivan, M.D., M.A. (Ethics)
Professor Emeritus of Pharmacy Practice,
Cedarville University; Director, American
Academy of Medical Ethics

43.

Michael M. Uhlmann, Ph.D.
Clinical Professor of American Politics and
Government, Claremont Graduate University

44.

Adrian Vermeule, J.D.
Ralph S. Tyler Professor of Constitutional
Law, Harvard Law School

45.

Arthur Waldron, Ph.D.
Lauder Professor of International Relations,
University of Pennsylvania

46.

Bruce Howard Weber, Ph.D.
Professor of Biochemistry Emeritus, California
State University Fullerton; Robert H.
Woodworth Chair in Sciences and Natural
Philosophy Emeritus, Bennington College

 7a
47.

James Matthew Wilson, Ph.D.
Associate Professor of Humanities and
Augustinian Traditions, Villanova University

48.

Bradley C. S. Watson, Ph.D.
Professor of Politics and Philip M. McKenna
Chair in American and Western Political
Thought, Co-Director, Center for Political and
Economic Thought, Saint Vincent College

49.

Bradford P. Wilson, Ph.D.
Executive Director of the James Madison
Program in American Ideals and Institutions,
Lecturer in Politics, Princeton University

50.

Ferdinand D. Yates, M.D., M.A. (Ethics)
Adjunct Lecturer, Trinity International
University, Center for Bioethics & Human
Dignity, Woodstock Pediatric Medicine,
Woodstock, GA