Horowitz: Trump-appointed judge: Idaho can’t block men from competing in women’s sports
We are living in a time when states and cities can indefinitely mandate draconian “face coverings” on our own mouths and noses, along with a full panoply of restrictions on life, liberty, and property. Yet the courts have been silent because those are real constitutional rights that are being infringed upon, and old-fashioned inalienable rights are not in vogue. What is cool to the black-robed tyrants, including some GOP appointees, is the “right” for men to participate in female sports. Presumably, so long as they wear masks while they are running the track.
On Monday, Judge David C. Nye, a Trump appointee to Idaho’s federal bench, placed a temporary injunction on Idaho’s “Fairness in Women’s Sports Act,” which bars men who claim they are women from participating in female sports (and vice versa). Nye said that plaintiffs, who include track and field athletes at Boise State University, “are likely to succeed in establishing the Act is unconstitutional as currently written” because, in his estimation, it likely violates the Equal Protection and Due Process clauses of the 14th Amendment.
Nye claimed that Idaho’s ban is “in stark contrast to the policies of elite athletic bodies that regulate sports both nationally and globally” and that separating sexes by scientific designation “burdens all female athletes with the risk and embarrassment of having to ‘verify’ their ‘biological sex’ in order to play women’s sports.”
Shockingly, Nye acted as if he really wanted to avoid this controversy, but he contends that the 14th Amendment from 1868 is what compels him to redefine sexuality! “In making this determination, it is not just the constitutional rights of transgender girls and women athletes at issue but, as explained above, the constitutional rights of every girl and woman athlete in Idaho,” Nye wrote.
Remember when we were told that Gorsuch’s opinion in the transgender employment case was just about statutory reading of Title VII of the Civil Rights Act and not about creating a constitutional right? Yeah, right. As I warned at the time, the Supreme Court’s Bostock decision served as a green light for lower courts to take it a step further.
Imagine the looks on the faces of those who wrote the 14th Amendment if they were to see how a provision designed to grant freed black slaves equal fundamental rights is being used for state-sponsored gender-swapping. Rep. James F. Wilson, R-Iowa, the chairman of the House Judiciary Committee back in the 1860s who helped draft the 14th Amendment, spoke emphatically that it was “establishing no new right, declaring no new principle.” “It is not the object of this bill to establish new rights, but to protect and enforce those which belong to every citizen,” declared Wilson in 1866.
No new principle, indeed! In fact, the only thing this amendment is not used for today is what it was intended – to stop states from crushing individual liberty, as we are seeing with the mask mandates and closures of churches and businesses.
Justice Gorsuch tried to deny that his decision would grow legs beyond the scope of the employment discrimination ruling, but Justice Alito warned that it would affect female sports, among other things. “The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male,” wrote Alito in his dissent, citing, among other cases, this budding Idaho lawsuit.
Fast-forward to this week, and the Idaho judge cited Gorsuch’s Bostock decision as part of his rationale for believing transgenderism is enshrined in the 14th Amendment. Noting that while the ruling was in the context of Title VII employment discrimination law, Judge Nye still cited Gorsuch’s operative line to apply it elsewhere: “It is impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex.” The bottom line is that once you apply that thinking to a statute, it will be applied to the 14th Amendment, and once it’s applied to employment, it will be applied to every facet of life.
Taking a broad look at the state of play in the courts, conservatives must finally recognize the imbalance in political outcomes. Notice how, in blue states, where the governments mandate broad violations of individual liberty, the courts are nowhere to be seen in defending rights that existed since the time of Blackstone. Yet, when red states want to simply protect against novel and destructive policies that are in opposition to individual rights, the federal courts are empowered to swoop in.
Thus, conservatives who are stuck in California where “my body, my right” doesn’t seem to extend to one’s own mouth and nose to breathe fresh air, can’t exactly go to Idaho to find respite. Where the legislators don’t implement the woke leftist agenda, the courts will. The Ninth Circuit has already forced Idaho to pay for a castration “operation” for a male child sex offender sitting in state prison. The Supreme Court refused to reverse that opinion. Likewise, last year, the Supreme Court refused to overturn a Ninth Circuit opinion preventing the city of Boise from cleaning up homeless encampments.
Heads the Left wins, tails the Right loses. Either way, the alt-Left gets its policies enacted in all 50 states.
Putting everything together, the courts of Sodom and Gomorrah believe there is a right for a man to play female sports, a right for a man to secure a taxpayer-funded castration, and a right to camp out on city streets – but no right to open your business or walk freely without a cloth on your own mouth and nose.
At a time when blue states clearly have a license to supplant the Constitution with the Antifa agenda, red states have a responsibility to hold their ground against lawless courts. And no, “but Gorsuch” and “appointing Republican judges” are not the answer. It is the problem.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.