The Role of Lawfare in Gender Ideology
By Erin Friday
The following is a lightly edited and updated version of Erin Friday’s talk at the Bigger Picture conference
Thank you, Genspect, for holding this all-important event, which is even more crucial as we mourn the loss of Charlie Kirk, who took the concept of having open discussions to a new level.
When thinking about the legal landscape of transgenderism, a quote from one of my favorite childhood authors, Charles Dickens comes to mind:
It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the spring of hope, it was the winter of despair.
As in A Tale of Two Cities, we are having some incredible wins and some terrible losses in the courts. But I do not believe that the losses should be seen as true losses since the mainstream media is forced into covering the cases, which educates more parents, politicians, and the judiciary to the destructive nature of the transgender movement.
So, let’s talk good news/bad news. The case of U.S. v. Skrmetti was an incredible win for the 27 states with some type of ban on sex-rejecting interventions on minors. While it does not directly help the blue states or stop these horrifying so-called treatments for adults — which must happen — the lengthy opinion was chock-full of goodies, as was the oral argument.
U.S. v. Skrmetti: States May Regulate
Two highlights from the oral arguments were when Justice Thomas was querying the Solicitor General about whether there are any differences between the sexes, and she begrudgingly answered yes. Even the Biden administration had to admit that trans women are not women.
The second just delicious response was from Chase Strangio of the ACLU when she contradicted the Solicitor, who had been using the alleged suicide risks at the foundation for rejecting Tennessee’s ban. Strangio admitted that suicides of so-called transgender kids were thankfully rare. In an instant, the suicide argument was practically obliterated.
The majority opinion itself was fantastic, but what I found the most intriguing were the concurring opinions. Justice Coney Barrett questioned the narrative of a “trans-identified person” as being a suspect or protected class, noting that identifying as transgender is not immutable, or a stable identity, and should not be added to the extremely narrow classification of individuals in which the highest legal protections are afforded: race, alienage, and national origin.
Justice Thomas’s (I just love that man) concurrence was pure gold. He made three major points.
One, that the treatment protocols for dealing with gender dysphoria are hotly contested, and he rejected reliance on so-called experts, the large medical and mental health societies, while calling into question WPATH.
Two, he described all of the available interventions — even phalloplasty — and laid bare the substantial harmful effects of sex-rejecting interventions, and explained how our European counterparts have curtailed these treatments.
And third, he raised the issue of regret and detransitioners. He specifically referenced their amicus brief. This should remind us of how important these brave young adults are in the quest to destroy gender ideology.
Mahmoud v. Salazar: Religious Freedom and Parents’ Rights
Then we had the Supreme Court opinion of Mahmoud v. Salazar, another great win. But this victory is limited to those families with sincerely held religious beliefs.
Mahmoud raised the question of whether religious parents have the right to opt their children out of LGBTQ story time, which had lesson plans that would chastise the students if they did not agree to accept the character’s identity choice or ability to change sex. The school district originally had an opt-out. But about 1,000 parents opted out, including many non-religious families. That triggered the District to take away that option, with the District claiming disingenuously that the books are needed to create a safe and conducive environment for learning.
The Supreme Court found against the school district, holding that schools cannot have a curriculum that “substantially interfer[e]s with the religious development” of a child, or poses “a very real threat of undermining” the religious beliefs and practices the parents wish to instill in the child, “which is a fact-intensive inquiry.”
Thus, the opinion went further than just requiring opt-outs for LGBTQ story time, but the fact-intensive inquiry leaves a gap open for schools to continue to find creative ways to try to inculcate students with lessons on transgenderism.
Some school districts, like those in California, are interpreting the case narrowly, setting a minimum that opting out must be offered to elementary school parents. That leaves open that high schoolers who will continue to be taught about trans regardless of their religiosity.
I believe that this is an incorrect interpretation of Mahmoud since the decision relied heavily on a case in which Amish parents, on the basis of religion, were able to opt their kids out of compulsory high school.
There is a current case in California in which a school had 5th graders reading LGBTQ books to the younger students — a new low even for California, kids being required to indoctrinate other kids. That case is currently on appeal, so we will see in the next year just how the decision will be applied in California.
The Seattle School District has taken the bold step of completely thumbing its nose at this Supreme Court decision. On its website, as of last week, it states that no student can opt out of LGBTQ story time, not even kindergarteners.
Chiles v. Taylor: ‘Conversion Therapy’ and Free Speech
The Supreme Court heard oral arguments in Chiles v. Taylor, which will decide if states’ anti-conversion therapy laws violate freedom of speech. The state laws at issue were designed to strike fear in mental health providers who fail to blindly affirm a child’s sex-rejecting identity. Only 18 states don’t have some form of prohibition. While the anti-conversion therapy laws do not proscribe exploratory therapy, which all genuine professionals should be employing, the laws worked to their purpose, and it is extremely difficult to find a mental health provider who does not believe that they must affirm the child’s identity or risk losing their license.
I am confident that the Supreme Court will rule in our favor in this case, and the ruling will have a country-wide effect, but it will not stop the affirming model in its tracks. That is going to take, unfortunately, many years.
Two Cases About Sports
There are two sports cases currently before the Supreme Court, Little v. Hecox and West Virginia v. BPJ.
Hecox challenged Idaho’s law that bans males from female sports. What is extremely interesting is that our dear friend Chase Strangio of the ACLU has asked that the case be dismissed before oral argument, because Mr. Hecox claims that he does not want to play in women’s sports anymore while at Boise State because he wants to concentrate on his studies, and he also wants to protect his mental health. This is ironic because the males who want to play in women’s sports always argue that being able to play sports based on their gender identity is crucial for their mental health.
My opinion is that the 24-year-old-Hecox, who did not undergo any sex-rejecting interventions as a child, is not a sympathetic party, and Strangio wants to avoid another colossal embarrassing defeat. Luckily, the Supreme Court can force Hecox to proceed with the case, which I expect it to do. (Post-script: The Supreme Court has denied the ACLU permission to dismiss the case before oral argument.)
The BPJ case involves a male who began sex-rejecting interventions when he was about 11, and therefore should be sympathetic, but his behavior in the female locker room will likely erase much of that sympathy. The BPJ case involves both Title IX and Equal Protection claims. Title IX concerns federal funding, and the Equal Protection Clause concerns equal treatment under the law. That claim will require the court to determine the hierarchy between the incoherent concept of gender identity and sex because sex-based rights cannot exist if gender identity is also afforded the same protections.
These cases are likely to be decided in our favor, because we know from Skrmetti that many of the Justices are not buying the argument that an internal sense of one’s sex trumps actual sex.
Several other significant sports cases are going on around the country. Two days ago, Riley Gaines and her fellow plaintiffs won a crucial motion that permits them to proceed with the discovery phase against the NCAA. The discovery phase will surely elucidate who and how various nonprofits, trans activists, and government actors colluded to allow males into women’s sports.
We have the might of the Federal Government backing us in the sports cases. The Department of Education, Office of Civil Rights, and the Department of Justice have been filing suits against universities and schools.
There are lawsuits directly challenging state laws that require sports and facilities to be based on gender identity. We currently have two of those in California.
Child and Parental Rights Campaign and I just filed a lawsuit last week on behalf of Coach Batie-Smoose against San Jose State University for her firing when she spoke out about a male playing on the women’s volleyball team.
It’s really shameful and embarrassing for our country that lawsuits are needed to protect sex-based rights, but here we are.
More School Cases
Returning to school cases. For the most part, teachers and professors are winning or receiving respectable settlements if they raise a religious claim for refusing to lie to parents about their student’s adoption of a sex-rejecting identity, or when they refuse to use different names or pronouns for a student.
I am following a case of John Kluge in Indiana, who was a high school teacher who called all of his students by their last names to avoid using male names and pronouns for two females who wanted to be treated as boys. These girls claimed to feel bad, and their sadness was enough to get this teacher fired. One of the girls said, “I truly believe that if everyone in my life had refused, like Mr. Kluge, to use my corrected name, I would not be here today.”
This is so emblematic of the learned fragility of sex-rejecting youth. This poor child, and all the other individuals who believe that their lives hang in the balance over their ability to control someone’s language or thoughts, is extremely disturbing.
While cases challenging secret social transitions have yet to achieve widespread success, that victory is on the horizon.
Schools Against Parents
The basis for all secret social transition school policies, which are still in almost every state, in nearly all public schools, is the fallacious presumption that parents who refuse to believe that their child has a defective body are abusive. Every single secrecy policy justifies itself by claiming the school needs to be a safe space away from parents.
For example, in a Florida school district, the secret policy instructed school officials not to tell the parents about their child’s adoption of a trans identity, because “Parents can be very dangerous to the students’ health and well-being… and outing students… can literally make them homeless.” In the Foote case, the appellate court said keeping parents in the dark “creates a space for students to express their identity without worrying about the parental backlash.”
This reasoning flips the law on its head. First, I have likely spoken or interacted with more than 500 parents with kids adopting a sex-rejecting identity, and not a single one has harmed their child physically or emotionally because of that identity, nor have they abandoned their child. Second, the Supreme Court — almost 50 years ago — ruled that there is a presumption that parents have their child’s best interest at heart. The Supreme Court said that the notion that “governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”
Third, schools are not empowered to adjudicate a parent as abusive, parents have a right to due process through the courts — that is, a right to defend themselves against any such allegations.
There are currently three secret social transition cases pending before the Supreme Court. Each of these cases was lost in the lower courts on different grounds, so the Supreme Court could decide to take all three.
Post-Script – The Supreme Court denied certiorari on one of the cases, Lee v. Poudre, but did so begrudgingly, with three Justices (Alito, Gorsuch, Thomas) noting that they remain “concerned that some federal courts are ‘tempt[ed]’ to avoid confronting a ‘particularly contentious constitutional question[n]’: where a school district violated parents’ fundamental right ‘when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process.’” The court noted that parents are being denied critical information and involving themselves into the decision of how to raise the child.
Looking Forward
I predict that in 2026, the Supreme Court will rule that parents have the fundamental right to raise their child as his or her sex, the most essential aspect of being a human.I will close by briefly discussing family law and dependency cases.
The win-loss ratio for parents who want to safeguard their children from social or medical interventions is devastatingly poor, and there is no currently viable path to reach the Supreme Court. But there is some good news: a team of very smart attorneys and I have written a proposed Executive Order and companion federal laws that should stop the taking of children from parents who want to raise their child as his or her sex. We are using every one of our connections in DC to make this happen, and I do believe that it will occur, or I will die trying.
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