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Horowitz: All 3 Trump-appointed justices have helped destroy female sports

Op-ed
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Remember those promises to win back the Supreme Court and overturn bad decisions that have stood for decades, like Roe v. Wade? Well, it turns out that, after having gotten three Supreme Court picks, the phony conservative legal establishment that advised Trump failed to even get judges who wouldn't add new odious precedents. Now we are all paying the price for it – so much so that red states can't even keep boys out of girls' sports.

Last Wednesday, Southern District of West Virginia Judge Joseph R. Goodwin ruled that the state's recently passed law barring men in female sports is unconstitutional. At a time when judges, including those appointed by Trump, are refusing to acknowledge a long-standing recognized right to bodily autonomy, Goodwin wrote that there is a right under the Fourteenth Amendment's Equal Protection Clause to access the other gender's sports. He also ruled, based on Gorsuch's opinion in Bostock v. Clayton County, that the law violates Title IX, a federal education law that prevents sex-based discrimination, which was created in 1972, long before anyone thought about gender dysphoria.

I don't think conservatives realized last year just how devastating the Bostock decision was or the extent of its long-term consequences. The radical opinion basically applied the word "sex" in Title VII of the Civil Rights Act to transgenderism. At the time, Gorsuch promised that this was just a limited ruling to one statute and would not create a constitutional right for transgenderism, but as Alito warned in his dissent, once you misconstrue the word "sex" as understood in 1964, it would easily be applied as discrimination to other laws, such as Title IX of the 1972 Education Amendments and the Fourteenth Amendment.

Well, as I noted last month, Gorsuch had his chance to limit the impact of his decision by overturning the Fourth Circuit in Grimm v. Gloucester County School Board, which applied sex discrimination in the context of separate public bathrooms in a Virginia school. Yet not only did Gorsuch decline to take up the appeal from the school, the other two Trump appointees – Barrett and Kavanaugh – also allowed this radical opinion to stand. Only Justices Thomas and Alito would have granted certiorari. This means that if we are to subscribe to judicial supremacism, all the laws protecting female sports or barring chemical castration of minors are dead in the water. Tennessee, Mississippi, Alabama, Arkansas, Florida, Idaho, and Montana have enacted similar laws that are now all on the judicial chopping block.

Yes, Judge Goodwin in West Virginia is a Democrat appointee, but it's clear that the other lower court judges will feel that this is now Supreme Court precedent. Goodwin used the Grimm decision that was implicitly blessed by seven of the nine justices as the basis of his preliminary injunction against the West Virginia law.

It's quite evident that Gorsuch's Bostock opinion, supplemented by the high court's tacit blessing of Grimm, has become the Roe v. Wade of human sexuality. Any law regulating the use of chemical castration for minors will now face the same fate at the courts. Earlier this month in Tennessee, a federal judge placed a temporary injunction on a state law requiring businesses that choose to allow men in female bathrooms (or vice versa) to post signs notifying patrons.

Yes, GOP judges have now codified transgenderism as a civil right against all state recognition of human sexes the way God meant them to be. The ramifications are unlimited and will have bearings on adoptions, Catholic hospitals, and any female private spaces in schools and colleges.

Ironically, this ruling came a week after an Indiana federal judge opined that states have robust "police powers" to force someone to get an experimental vaccine with known side effects and little benefit for those attending public universities. Judge Leichty ruled that there is no Fourteenth Amendment right to bodily autonomy. So, people can be excluded from a public university altogether unless they take an affirmative action against their bodies, yet a state cannot exclude a boy from the girls' sports team in that same college. Just 10 years ago, none of us could have written a satire about the judicial system to capture the degree of intellectual twisting we are experiencing today.

Unless Republicans begin fighting back against the premise of judicial supremacism, there is no hope of ever distinguishing a red state from a blue state in policies. It's time for states to say "no." If a judge can't even provide a shield to protect people from proactive COVID fascism policies taken against one's body, then they most certainly can't serve as a sword to force states to offer affirmative accommodations they don't believe in. The days of waiting to appoint "better judges" are over.
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