Commentary: Court should reject Obama's radical social experiment

By Jim DeMint

and Roger Severino

Once it had convinced the Supreme Court to redefine marriage for the entire nation, you would think the Obama administration would have paused and let the country catch its breath. It didn't.

Instead, it raced to impose radical new gender identity policies on states, employers, hospitals, and even our school children - all without a hint of congressional approval.

Last week the Supreme Court agreed to take a case that will either roll back this massive government overreach or allow the administration to redefine what it means to be a man and a woman under law.

First, some background. The Obama administration says a person's sex is not something that can be objectively determined by birth. Rather, it is merely a placeholder "assigned at birth," much like a Social Security number, only far easier to change.

According to the administration, one's actual sex is discovered later in life, can range from "male, female, neither, or a combination of male and female," and doesn't depend on genetics, anatomy, or dressing, acting, or looking a certain way.

While people should be free to believe whatever they want about these new gender identities, they should not be forced upon people who have reasonable scientific, philosophical, and religious objections for not going along.

The administration has nevertheless threatened to strip schools of their funding unless teachers and students treat others according to their self-declared gender identities instead of biology.

Hearing this call, a gender-dysphoric teen girl in Virginia sued her school district to get full access to the boys' bathrooms. Recognizing the competing interests at issue and trying to be compassionate, the school had already accommodated her by installing single-occupancy unisex facilities, but the student was not satisfied. The Obama administration swiftly weighed in on the case, called Gloucester County School Board v. G.G. Incredibly, it argued that when Congress banned sex discrimination in education in 1972, it really banned gender identity discrimination and that the schools' accommodation was not an act of sensitivity, but bigotry.

The Supreme Court has decided to hear the case, and if the rule of law still means anything, the court will take this opportunity to rein in an out-of-control executive branch.

This case will have ramifications far beyond school shower, bathroom, and dorm policies. That's because the Obama administration has unilaterally redefined "sex" to mean "gender identity" in a host of federal antidiscrimination laws covering more than education - including housing, health care, employment, lending, and federal contracting - even though the American people, through their representatives, have repeatedly rejected such extreme proposals.

The case will also affect the ability of states to protect their citizens' privacy and safety interests. Twenty-four states have already sued the administration for illegally dictating their state's bathroom and shower policies. North Carolina Gov. Pat McCrory deserves tremendous credit for leading this effort and for standing against the "progressive" bullies in the media, big business, and the federal government.

McCrory knows that subjective and unverifiable gender identity policies threaten the safety and privacy of women and girls in intimate facilities because they open the door to abuse by nontransgender people. At the same time, he's also set North Carolina policy to accommodate gender-dysphoric people with private facilities so everyone's privacy is protected.

Large majorities favor bathroom, locker, and shower policies that reflect biological realities, while also adding private accommodations for anyone who would feel uncomfortable under the rules. But the administration and LGBT activists consider this commonsense solution to be rank discrimination.

We'll find out what the Supreme Court thinks about all this soon enough. With any luck, the justices will uphold our laws as written and completely reject the administration's radical social experiments.

A former U.S. senator for South Carolina, Jim DeMint is president of the Heritage Foundation (www.heritage.org). Roger Severino, who served as an attorney in the U.S. Justice Department's Civil Rights Division, is director of Heritage's DeVos Center for Religion and Civil Society.