America’s Real Problem

If any human society—large or small, simple or complex, based upon the most rudimentary hunting and fishing, or on the whole elaborate interchange of manufactured products—is to survive, it must have a pattern of social life that comes to terms with the differences between the sexes.
—Margaret Mead, anthropologist1

John and Beth had lived in their home for fifteen years before they saw it. Beth noticed it first—a long, thin crack in the living room wall. John made an appointment with a repairman and painter, and after the hired man completed his work, everything looked as good as new.

Then, six weeks later, the crack was back. John called the painter and asked him to return. The painter did so. With putty and paint, he repaired and touched up the wall once more, and all appeared to be well…until about a month later, when the fissure in the living room wall reappeared. This time it was larger and longer than before.

When the repairman came back, he carefully studied the wall and the network of cracks that had infected it. Then he said, “John, I’m sorry, but I can’t help you. You don’t have a crack-in-the wall problem; you have a foundation problem. The cracks are symptoms of a bigger issue. The foundation of your house is shifting, and until you repair it, cracks are going to continue to form.”2

In America, we can see “wall cracks” in a great many places. Often we will try to repair the cracks, but our best efforts produce no long-term positive results. Our core problem isn’t one crack here or another there; the breaks and ruptures are symptoms. The real problem is that nationally, our country rests on a shifting foundation. We must repair it!

For the last few weeks I’ve written about transgender bathroom policies that will allow a man who self-identifies as a woman to use the women’s restroom, and a woman who self-identifies as a man to use the men’s room. The fact that such policies make women vulnerable to predators is a real problem—no bathroom policy should compromise women’s safety. There’s another important matter, however, and it relates even more directly to America’s main difficulty. Nationally, we have grown unwilling to affirm the truths that nature declares through biology about being male and female.

Please do not misunderstand. We must have loving concern for the man who feels he is really a woman, and for the woman who believes she’s a man in a female body. Yet, if we’ve come to a place where we’re unwilling to say a biological male is a man even if he feels he is a woman on the inside, then our unwillingness is like a crack in the wall resulting from a soft foundation. Moreover, this reluctance is symptomatic of a much bigger stumbling block: an unwillingness to accept and affirm the truth.

Nationally, the debate over gender identity reflects an unwillingness to accept and affirm the truth.

You may remember that several months ago, Ben Shapiro received a lot of heat for publicly challenging the idea that a biological male who claims to be a woman ought to be called “he” rather than “she.” Calling him “she,” he said, is “mainstreaming delusion.” The other panelists on Dr. Drew’s show were offended, but Shapiro was absolutely right. Watch the most heated part of the exchange below, and read about it here.

The truth, at times, offends. Nevertheless, hearing the truth also can be a first step toward addressing the core problem. Just how bad is our national inability to recognize and declare the truth? Take a look at this video from the Family Policy Institute of Washington (FPIW) and see for yourself.

Note especially the sobering concluding words words of interviewer and host Joseph Blackholm.

It shouldn’t be hard to tell a 5’9” white guy that he’s not a 6’5” Chinese woman, but clearly, it is. Why? What does that say about our culture? And what does that say about our ability to answer questions that actually are difficult?

You see, this brilliant clip showcases America’s real problem. It also demonstrates how we as believers can and should challenge erroneous cultural assumptions. On the April 26th edition of his one-minute radio commentary series “The Point,” John Stonestreet highlighted not only the truth the video exposes, but also the gentle, good-natured prodding Blackholm used to expose it:

These students have been so brainwashed that they’re willing to affirm obvious nonsense. But most laughed at themselves even as they said it. Why? Because they know it’s not true. Even in the midst of so much cultural pressure, self-perception doesn’t change reality.

It’s a good reminder that Christians still have home court advantage, because this is still God’s world. And a few well-placed questions, as Blackholm demonstrated, can reveal nonsense for what it is.

You can hear the entire commentary here.

Another FPIW video also illustrates powerfully the surreal place to which relativism has taken us, as well as our nation’s desperate need to embrace reality, despite our feelings.

As a society, we indeed have come a long way from acknowledging what biology tells us about our lives and identity. Take, for example, the medical community’s approach to someone who is confused about his or her gender. A man’s self-identifying as a woman or vice versa once was called “gender identity disorder,” but now it is called “gender dysphoria.”

One medical website states,

Diagnosis and treatment are important. People with gender dysphoria have higher rates of mental health conditions. Some estimates say that 71% of people with gender dysphoria will have some other mental health diagnosis in their lifetime. That includes mood disorders, anxiety disorders, schizophrenia, depression, substance abuse, eating disorders, and suicide attempts.

Instead, might these problems result because, at its root, the individual actually is denying reality? I submit that this is the case. You won’t find that assertion in the popular culture or even, generally speaking, among a great many medical professionals:

The goal is not to change how the person feels about his or her gender. Instead, the goal is to deal with the distress that may come with those feelings.

Talking with a psychologist or psychiatrist is part of any treatment for gender dysphoria. “Talk” therapy is one way to address the mental health issues that this condition can cause.3

Beyond talk therapy, many people choose to take at least some steps to bring their physical appearance in line with how they feel inside. They might change the way they dress or go by a different name. They may also take medicine or have surgery to change their appearance.4

Note this statement in the material quoted above: “many people choose to take at least some steps to bring their physical appearance in line with how they feel inside” [emphasis added]. This may provide some temporary relief, but ultimately it won’t resolve the issue. Living by feelings and continuing to deny reality only deepens the problem, both for the individuals experiencing it, and corporately, on the national level.

Here are three among eight key points made on gender confusion by the American College of Pediatricians, a group of medical professionals that, thankfully, hasn’t succumbed to political correctness. (You can read the entire list here.)

  • Human sexuality is an objective biological binary trait: “XY” and “XX” are genetic markers of health—not genetic markers of a disorder.
  • A person’s belief that he or she is something they are not is, at best, a sign of confused thinking.
  • Rates of suicide are twenty times greater among adults who use cross-sex hormones and undergo sex reassignment surgery, even in Sweden which is among the most LGBQT- affirming countries.

The word health in the first point is a critically important word. Actually, one finds authentic freedom in accepting and affirming the gender of the biological sex he or she was assigned genetically, even before birth. While moving from gender confusion to acceptance of biologically determined reality can be very difficult, the one confused about his or her gender identity won’t find real resolution and freedom without it. Let’s put it another way: Once we affirm the truth, our feelings eventually will align and stabilize. Actually, in embracing truth, we will find fulfillment and contentment that otherwise would prove elusive. Again, the journey is difficult. It often requires professional help, and it certainly cannot be made overnight. Yet the destination makes the journey worth the effort.

In the first hour of Thursday, April 14, 2016 edition of the Eric Metaxas show, Eric interviewed Navy Seal Commander Rorke Denver, author of Worth Dying for: A Navy Seal’s Call to a Nation. During the interview, Metaxas and Denver discussed the current assault on masculinity in American culture, and the importance of a man’s affirming his masculinity and a woman’s affirming her femininity. Note in particular the words I’ve chosen to emphasize with bold type in this exchange.

Metaxas:  What I’ve written about sometimes also is this issue of celebrating manliness, for example, has gone out of fashion—except in the warrior class. I mean, when you watch a move like 13 Hours, or whatever, you see it, right there in front of you. You can’t deny it. But in the wider culture, we don’t talk about what it is to be a man, to be a woman. Those things are sort of politically incorrect. And it’s amazing because it saps the strength that men and women both are meant to have by owning their gender and saying I am this, I am that. And it matters.

Denver: My bride and I talk about it all the time. I feel like we’re a throwback couple. She wants me to be a man and she has no desire to be one herself, as much as she knows she can’t be. And I don’t want to do the things that she does for our family and our kids, these things that I’m absolutely incapable of doing. So we split those jobs, I think traditionally and appropriately, and we’re healthy because of it. I hold things dear that I think, exactly like you’re saying, we don’t value anymore. I mean the fact of the matter is our world has become so litigious and so combative in the wrong way. If somebody says something disrespectful to my bride, they’re going to get punched in the mouth. That’s going to happen. I’ll deal with the fallout after the fact. And she knows she’s with a guy that’s going to do that. And she likes that. And I want to be that type of person. You mess with my kids, you’re going to have a bear to deal with. We’ve gotten away from that, and that’s not a good thing.

Metaxas: In my mind, you’re exactly right, and it amazes me that we’ve so quickly moved away from that kind of thinking.

Many years ago, addressing the issue of sexual roles, an issue that arises from gender identity, psychologist W. Peter Blitchington observed, “The strength of a nation can be fairly effectively gauged by the strength of its families, and the strength of a family can be estimated by the quality of its sexual roles.”5

The strength of a nation can be fairly effectively gauged by the strength of this families, and the strength of a family can be estimated by the quality of its sexual roles.
—W. Peter Blitchington—

In Genesis 1:26-31, we read not only of God’s creative activity, but also of the purposeful assignment He gave to His highest creation, the man and the woman:

26 Then God said, “Let Us make man in Our image, according to Our likeness; let them have dominion over the fish of the sea, over the birds of the air, and over the cattle, over all the earth and over every creeping thing that creeps on the earth.” 27 So God created man in His own image; in the image of God He created him; male and female He created them. 28 Then God blessed them, and God said to them, “Be fruitful and multiply; fill the earth and subdue it; have dominion over the fish of the sea, over the birds of the air, and over every living thing that moves on the earth.”

29 And God said, “See, I have given you every herb that yields seed which is on the face of all the earth, and every tree whose fruit yields seed; to you it shall be for food. 30 Also, to every beast of the earth, to every bird of the air, and to everything that creeps on the earth, in which there is life, I have given every green herb for food”; and it was so. 31 Then God saw everything that He had made, and indeed it was very good. So the evening and the morning were the sixth day.

At the risk of sounding overly simplistic, it still is true: In these statements from Genesis reside principles that, when embraced, foster fulfillment with regard to gender identity. God created humanity male and female, and aligning ourselves—individually, corporately, and culturally—with this reality is essential for wholeness and good health.

Because, as long as we keep denying reality and pretending to live contrary to the truth, the cracks on the living room wall of our national “house” will continue to appear.

Related post: Ten Ways Same-Sex Marriage Denies Reality


Copyright © 2016 by B. Nathaniel Sullivan. All Rights Reserved.

Unless otherwise indicated, Scripture has been taken from the New King James Version®. Copyright © 1982 by Thomas Nelson, Inc. Used by permission. All rights reserved.


1Quoted in W. Peter Blitchington, Sex Roles and the Christian Family, (Wheaton, IL: Tyndale, 1981), 174.

2Adapted from Tony Evans:



5W. Peter Blitchington, Sex Roles and the Christian Family, (Wheaton, IL: Tyndale, 1981), 13.




Updates on Efforts to Protect Privacy Rights and Religious Liberty

You’ve seen those ridiculous “Coexist” bumper stickers, right? You know, the ones where the word is spelled out using religious symbols from Christianity, Islam, Paganism, Gay rights, Judaism, and so on?


I call it ridiculous because, as someone once wrote: “The C wants to kill the E, X, T, and the O. The O offers peaceful non-resistance, which will be ineffective if real trouble breaks out. The E feels like it’s been oppressed, making it intolerant of the C, the X, and the T. The I and the S are numerically irrelevant, but are just necessary to spell out the word. And the sticker is mostly directed at the T (or the Christian), who ironically poses no threat whatsoever to any of the others.”

John Stonestreet, in a BreakPoint commentary dated April 21, 2016—

Many points can be made in opposition to laws and policies that would allow transgendered individuals to use the restroom different from the one designated by their own biology. One of the strongest such arguments affirms what ought to be obvious—that these policies allow predatory men to feign having gender identity issues and invade women’s restrooms. Of course, no one should lightly dismiss the needs of someone struggling with gender identity. At the same time, we also must care about how women would feel about sharing a restroom, not just with a predatory man, but also with a biological male who identifies as a woman. Female objections to a transgendered man in the ladies’ room aren’t indications of bigotry or hate, but of the legitimate desire for privacy when using the bathroom, locker room, and shower.

Do we really need to wonder how most women would feel about a man—any man—in the women’s bathroom? For anyone who does wonder, help is available. In his most recent Internet video, You Tuber Joey Salads conducted an experiment to find out. You can watch his video here.

In writing about Salads’ experiment, Michael Cantrell observes,

Interesting how most women aren’t comfortable with the idea of going to the bathroom with a man who pretends to be a woman. Perhaps the world isn’t quite as crazy as I originally thought.

If the majority of women aren’t comfortable with transgenders using their restrooms, why are their concerns being ignored for the sake of a very small minority?

Liberals claim to be about women’s rights, yet here they are, forcing ladies to do something against their will and stripping them of their right to privacy.

The hypocrisy is astounding.

Unfortunately, a bathroom bill that would have protected privacy rights in Tennessee’s public schools was withdrawn by its key sponsor in the Tennessee House of Representatives. Rep. Susan Lynn’s action effectively killed the bill for this legislative session, although passage was far from certain. Because children are of infinite worth, one wonders why, despite fierce opposition to the proposal, the legislature and the governor were not willing to draw a line in the sand to protect students in the Volunteer State.

Meanwhile, in North Carolina and Mississippi, which passed a religious liberty law, economic threats continue to mount. The NBA has scheduled its 2017 All-Star game in Charlotte, and NBA Commissioner Adam Silver is demanding changes in the law. Yet he, along with a host of other business leaders and entertainers like Bryan Adams, Bruce Springsteen, Pearl Jam, and Boston, are either threatening to exercise or are exercising outright the very freedoms they wish to deny those whom they disagree. So much for coexistence!


The bathroom bill in North Carolina actually can be called a privacy rights and business rights law, because it not only protects women, but also allows private businesses to set their own bathroom policies. Even so, politicians like President Barak Obama, New York Mayor Bill de Blaiso, New York Governor Andrew Cuomo, and Minnesota Governor Mark Dayton, to name a few, continue to revile and mischaracterize the law. They’re even trying to punish North Carolina for it. Even Republican presidential candidate Donald Trump spoke out against it, effectively ignoring the risk to women that the law mitigates. Ted Cruz, who supports the law, criticized Trump, accusing him of giving in to political correctness.

Returning to the debate in Tennessee, we note that the Obama administration said it was pleased the state’s bathroom privacy law (of course, the administration didn’t call it that) had failed to pass. This shouldn’t surprise us, since, as we noted in a previous post, the Justice Department filed a “statement of interest” in court that argued Title IX requires that transgendered individuals be allowed to use whichever restroom they choose. In the case, a Virginia school district had dared to limit access to its restrooms on the basis of students’ biological sex. The lower court ruled against the administration’s arguments, but the 4th Circuit Court of Appeals now says the lawsuit against the Virginia school district may proceed.

It was a 3-judge panel at the 4th Circuit that made this decision, with 2 of the 3 judges having been appointed by President Obama. According to one report, this panel ignored the plain language of Title IX, just as federal bureaucrats also have ignored it in recent months. In his End of Day email report to his supporters dated April 20, 2016, Gary Bauer wrote that

the federal court did not decide the issue. But their 2-to-1 opinion does allow a lawsuit against a Virginia school district to proceed, suggesting that gender specific bathrooms represent some form of unconstitutional sex discrimination.

The ACLU and other left-wing groups are applauding the decision as “a complete vindication of the Education Department’s interpretation of Title IX.” But the Obama Education Department’s interpretation is utter nonsense!

Title IX was passed by Congress in 1972 to eliminate blatant sex discrimination between men and women in educational opportunities. No one in 1972 had transgenderism in mind.

But that is how Obama’s radical bureaucrats are interpreting—rewriting—the law today. And left-wing judicial activists on the courts are going along with it.

Fortunately, Judge Paul Niemeyer’s dissenting opinion made the case for common sense. He wrote:

This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. . . This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result. [You can read more from Judge Niemeyer’s dissent here.]

Where is the left’s concern for the privacy rights of young girls?

Are you prepared to accept boys using your daughter’s bathrooms and locker rooms at your local public school? Are you prepared to share a public bathroom with someone of the opposite sex?

Are you willing to accept this assault on common sense?

The good news is that there is some indication that a great many people aren’t willing; this evidenced by the fact that when Target Stores announced a company-wide bathroom policy that allows biological men in women’s restrooms, and vice versa, a backlash began. Go here to read a handful of the negative reactions to Target’s guidelines.

Encouraging its readers to push back against the retail giant, an article at stated, “Clearly, Target’s dangerous new policy poses a danger to wives and daughters. We think many customers will agree. And we think the average Target customer is willing to pledge to boycott Target stores until it makes protecting women and children a priority.” On the American Family Association’s website, tens of thousands of angry consumers expressed their opposition and pledged to participate in a boycott.

This indeed is good news, but we’re actually not ready to leave Gary Bauer’s statements just yet. Read them again. Note that Mr. Bauer said, among other things, that the court is rewriting the law. It is critical that we understand this point—and that courts are not authorized to make or rewrite laws. Only the legislative branch of government pass laws. Judges are charged with the task of interpreting them.

Watch legal expert and Family Action Council of Tennessee’s David Fowler explain  how 2 members of the 3-judge panel are rewriting the law. If you don’t remember anything else from this post, remember what Mr. Fowler says here. Fowler makes some comments that are specific to Tennessee, but that doesn’t take anything away from his case that the ruling is unlawful. Everyone in America needs to understand why.

Members of the judicial branch will get away violating the Constitution in this way only if we permit them to do so. Yet, if we are to succeed in holding them accountable, we first must comprehend how we got to the place in our culture where we are debating whether or not we will allow men in women’s restrooms, and why, for millions of people, this issue isn’t a “no-brainer.”

We’ll explore this question next week. Stay tuned, and stay in prayer for our nation. America needs prayer perhaps now more than ever!

Copyright © 2016 by B. Nathaniel Sullivan. All Rights Reserved.

For further reading:

Turning American Law Upside Down for the Transgendered by David French

Capitulation on Religious Liberty Laws Is Shameful and Shortsighted by the editors of National Review


Eight Reasons to Pass HB2414

To the Representatives and Senators of the Tennessee Legislature and to Tennessee Governor Bill Haslam

Eight Reasons to Pass and Sign HB2414/SB2387 into Law

  1. HB2414 will protect the privacy rights of students in Tennessee’s public schools. Boys and girls should not have to worry about invasion of privacy when they use the restroom, and the presence of a biological male in a girls’ bathroom or a biological female in a boys’ bathroom is an invasion of privacy.
  2. HB2414 would set a statewide policy that would enhance the safety of students in Tennessee’s public schools.
  3. If bathroom policies in Tennessee’s public schools are left up to individual school districts, those who desire to limit restroom access to students based on biology will be left twisting in the wind against an almost omnipotent ACLU. In abandoning these school districts, the state also will be abandoning the students in them, as well as their parents.
  4. Contrary to the report on HB2414 released by Attorney General Slatery, advocates of HB2414 are standing on solid legal ground. The AG’s report claimed that HB2414 runs contrary to Title IX policies “because the U.S. Department of Education…interprets Title IX to require that transgender students be given access to restrooms and locker rooms consistent with their ‘gender identity’ instead of their anatomical gender.” Title IX doesn’t actually require this. According to Alliance Defending Freedom (ADF) Senior Counsel Jeremy Tedesco, “DOE’s interpretation is completely off-base. What the law says is what matters, and the law explicitly allows separate restrooms and locker rooms. The DOE oversees but cannot change Title IX, which only Congress can modify, so the agency has no legal basis for forcing schools to open restrooms to students of both sexes.” Matt Sharp, Legal Counsel for ADF, puts it this way: “[U]nder current law, states and school districts that enact laws and policies requiring students to use restrooms and locker rooms that correspond to their biological sex do not violate Title IX. The threats about losing funding are simply empty threats.”
  5. Large corporations that have adopted a politically correct line (not at all a courageous stance, given the number of corporations that have done so) must not be allowed to dictate a state’s policy through economic blackmail. Actually, these companies are putting themselves in a very untenable position when they threaten legislators and governors with economic ruin—and then look to these same leaders to establish and maintain policies that foster business-friendly environments.
  6. Expounding on point #5, we note that, generally speaking, states with family-friendly policies and laws have the most robust economies and the brightest economic futures. The 2016 annual report by the American Legislative Exchange Council (ALEC) confirms this. Rich States, Poor States is ALEC’s “Economic Competiveness Index” that includes state rankings. North Carolina ranks #2; Mississippi #17, and Tennessee #7. The Wall Street Journal recently sounded this word of caution to big business: “The private economy would be foolish to reject America’s heritage of liberty, which has powered the greatest engine of economic success in history. And if corporations want the benefits of a business-friendly environment, with lower taxes and less regulation, they would do well to recognize who enacts such policies: people with center-right social values, not the hard Left.” Consider the glaring difference in these two events that took place in North Carolina.nc_tworallies_rd
  7. Policy makers cannot assume that giving in to activists’ radical demands will lead to a truce. Recent events in North Carolina, as well as events occurring a year ago in Indiana, are instructive for us at this point. As we have seen, radical activists in the LGBT lobby never will stop making demands and never will be satisfied. How much will we surrender before we are willing to fight? And if we we won’t fight to keep male students out of girls’ bathrooms in our schools, is there a place where we will be willing to draw the line at all?
  8. A biology-based bathroom policy in Tennessee’s public schools fosters order and is based on reality and common sense.

Passing HB2414 is the right thing to do. It may not be the easy thing to do, but that which is truly worthwhile seldom is easy. Surely the courage we’ve seen in North Carolina’s leaders isn’t unique to North Carolina. Tennessee also has courageous leaders who are willing to do what’s right for our state and its people, especially its children.

Copyright © 2016 by B. Nathaniel Sullivan. All Rights Reserved.

The above images originally appeared on the April 15, 2016 edition of Family Research Council’s Washington Update.

The Folly of Surrendering Without a Fight for Tennessee’s Proposed Bathroom Bill

Tennessee Attorney General Slatery’s Assessment of HB2414 Is Flawed

 The people of Tennessee are tired of having their public policies being dictated to them by the various branches of the federal government, and they sure don’t want the state surrendering without a fight to the Obama administration on whether boys can choose to use a girl’s bathroom or locker room.
David Fowler, President, Family Action Council of Tennessee

North Carolina will never put a price tag on the value of our children. They are precious and priceless.
North Carolina Lieutenant Governor Dan Forest

HB2414 is a common-sense bathroom bill currently before the Tennessee House of Representatives stating that in Tennessee’s public schools, the sex indicated on a student’s birth certificate designates the restroom the student will use. The companion bill in the Tennessee Senate is SB2387. A recently-passed law in North Carolina carries a similar provision for NC public schools and other public buildings but gives private businesses latitude to set their own policies.

The Tennessee proposal has generated a great deal of opposition from those who say it discriminates against transgendered students. An individual is transgendered when he/she identifies as a member of the sex opposite the one his/her body indicates. Transgendered individuals in the United States number around 700,000—0.3 percent of the adult population. Even though HB2114 relates directly to students, the number of transgendered students still would be extremely, extremely small when contrasted to the overall student population. Accommodations certainly can be made for these students that (1) address their needs while (2) protecting the privacy rights of the majority. These arrangements may not represent the first choice of those who are transgendered, but why should members of the tiniest of minorities be allowed have bathroom access that violates the privacy rights of everyone else, especially when their access also opens the doors of women’s and girls’ restrooms to predators?

One of the questions raised about HB2414 is this: Would it violate Title IX rules and result in a revocation of federal funding? In other words, would it cost the state federal education money because it has been deemed discriminatory on the basis of sex? While the Obama administration has sought to make this case, their arguments, to date, have not prevailed in court. Two court cases are instructive for is at this point.

Although Gavin Grimm was born a female, she identifies as a male. She calls herself “Grimm.” In the fall of 2014, she was a student at Virginia’s Gloucester High School. With the permission of school officials, Grimm used the boys’ restroom at her school for seven weeks. The Gloucester County School Board intervened in December, however, and, with a 6 to 1 vote, determined that use of school restrooms would be limited to members of “the corresponding biological genders.” The adopted policy also stated that “students with gender identity issues shall be provided an alternative appropriate private facility.”

The ACLU sued in federal court on behalf of Grimm. In the case, the US Justice Department filed a “statement of interest,” and in it argued that Title IX guidelines dictate that schools must allow transgender students to use the restroom corresponding to the sex with which he or she identifies. Even so,

on July 27, 2015, U.S. District Judge Robert G. Doumar ruled that the School Board’s policy does not violate Title IX because Title IX permits schools to maintain separate restrooms for different sexes. As a result, Judge Doumar dismissed this portion of Grimm’s lawsuit. “Prosecutors cannot use Title IX, a policy that bars a school from receiving federal funding if it discriminates based on sex, in their arguments” stated Judge Doumar.

A thorough summary of the case and its ruling can be found here.

A similar ruling in another transgender case also came down in 2015. Seamus Johnston, an undergraduate student at the University of Pittsburgh at Johnstown, Pennsylvania, was a woman identifying as a man. For a while she used the men’s restroom and no one formally objected, but when she enrolled in a weight training class and began to use the men’s locker room, the university discouraged her from doing so. Johnston was told she could use the unisex facility that referees often used, but she ignored the offer and continued her practice of using the men’s locker room. She sued after she was charged with “exhibiting disorderly, lewd or indecent behavior” and disobeying the school’s instructions to avoid using the men’s bathroom and locker room facilities.

In his ruling, “Federal Judge Kim R. Gibson dismissed Johnston’s suit, saying that his transgender status was not covered by either the Constitution’s equal-protection clause or Title IX of the Education Amendments of 1972, which bars sex discrimination by institutions receiving federal funds.”

In the aftermath of the establishment of North Carolina’s new law, the governor’s office released a question and answer guide titled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren’t saying about common-sense privacy law.” Here is question 11 from that guide, along with the answer.

11. Will this bill threaten federal funding for public schools under Title IX?

Answer: No, according to a federal court which has looked at a similar issue.

These court rulings and North Carolina’s reliance on at least one of them to describe the validity of its new law provide important background information that enlightens us about the debate surrounding Tennessee HB2414. Tennessee’s Attorney General, Herbert H. Slatery, III, was asked to evaluate the bill’s legality. He make his findings public on Monday, April 11, 2016. His report says, in part, that the Department of Education [DOE] “interprets Title IX to require that transgender students be given access to restrooms and locker rooms consistent with their ‘gender identity’ instead of their anatomical gender.…There may be valid legal arguments against DOE’s interpretation, but there is no settled precedent to provide guidance as to how a court may ultimately rule…” (emphasis added). 


With all due respect to Attorney General Slatery, this is, at very best, extremely misleading. At worst it is an outright lie (my words alone). I’m not a lawyer, but I don’t have to be one, and neither do you, to see how misleading this is. Keep in mind that we know Attorney General Slatery’s statement is deceptive because we reviewed two court cases and their rulings, all of which are pertinent. Slatery didn’t mention either case in his report.

There’s more. Making the points we’ve already made and then expounding on them, Family Action Council of Tennessee President David Fowler—who, by the way, is a lawyer—enlightens us further. Here is Fowler’s response to the report, in its entirety.

Attorney General Slatery’s opinion regarding the risk to the state of losing Title IX funding if House Bill 2414 passes puts forth a carefully worded legal position that only the trained lawyer can decode to deconstruct the fear of the federal government it engenders.

It essentially regurgitates legal arguments made by the Obama administration that were flatly and unequivocally rejected by the only two courts to actually rule on them. For some inexplicable reason, the attorney general does not even discuss these two cases! A first-year law student would get in trouble for writing a brief that ignored relevant persuasive authority as if it did not exist.

In the face of these two decisions, it is, therefore, more than a bit disingenuous for the attorney general to say, “There is no settled precedent to provide guidance as to how a court may ultimately rule.”

People need to know that these words are legal “code language” for “the U.S. Supreme Court has not ruled,” but that does not mean that there is no legal precedent in support of House Bill 2414. The two cases the attorney general failed even to discuss are persuasive precedent[s] the state can use to support House Bill 2414, made more persuasive by the strong language the courts used to condemn the Obama administration’s arguments.

People need to know that the words “no settled precedent” are legal “code language” for “the U.S. Supreme Court has not ruled,” but that does not mean that there is no legal precedent in support of House Bill 2414. 

Moreover, the attorney generals for South Carolina, West Virginia, Arizona, and Mississippi have submitted friend of the court briefs in support of the decision from Virginia upholding a law like House Bill 2414.

That Tennessee’s attorney general didn’t even mention these favorable legal decisions and the opinion of his colleagues from other states that support the position in House Bill 2414 is a great disservice to the members of the Legislature and the public.

The misleading nature of these omissions is compounded by the fact that the attorney general instead cites settlement agreements, not court decisions, entered into with the U.S. Department of Education. A settlement agreement only means that the school districts decided not to litigate the clear meaning of the word “sex” in Title IX and just go along with what the Obama administration wanted. Settlement agreements have no persuasive value as a matter of law, unlike the court decisions that have actually ruled in favor of sex-designated bathrooms.

Settlement agreements have no persuasive value as a matter of law, unlike the court decisions that have actually ruled in favor of sex-designated bathrooms.

Thankfully, the attorney general did mention that, by law, no money can be withheld from a state until the state loses its legal arguments, and then only if it doesn’t come into compliance with that ruling within 30 days. By law, no money can be withheld during this process, and no money can be withheld retroactively.

In other words, contrary to the general impression the opinion tends to create, legislators need to understand that there is little risk that the state will lose any Title IX money so long as it complies with whatever the U.S. Supreme Court might someday say the word “sex” means. No one needs to run around like their pants are on fire as if there is some immediate, real threat to Tennessee losing Title IX funds.

No one needs to run around like their pants are on fire as if there is some immediate, real threat to Tennessee losing Title IX funds.

But the bottom line is that Tennessee cannot be held hostage by what the Supreme Court might possibly say at some point about the meaning of the word “sex” when the law, as it exists right now, is clearly in support of House Bill 2414.

The law, as it exists right now, is clearly in support of House Bill 2414.

The people of Tennessee are tired of having their public policies being dictated to them by the various branches of the federal government, and they sure don’t want the state surrendering without a fight to the Obama administration on whether boys can choose to use a girl’s bathroom or locker room.

Please share this information with your friends so that they are not mislead by how the press may characterize the attorney general’s opinion.

Read the press release version that’s on our website here.

Sincerely, David Fowler, President, Family Action Council of Tennessee

As of this writing, HB2414 and SB2387 are making their way through various committees at the Tennessee Legislature. If this proposed legislation fails, it will likely fail primarily because of the misleading, disingenuous opinion of Attorney General Slatery regarding the House version of the bill, HB2414. Governor Haslam would certainly bear responsibility as well, because he “has raised concerns [the bill] could endanger federal education funding and says that he wants to leave the issue to local school districts to decide.” Make no mistake: if the state leaves the issue to local school districts, those who desire to limit restroom access to students based on biology will be left twisting in the wind against an almost omnipotent ACLU. In abandoning these school districts, the state also will be abandoning the students in them, as well as their parents. This ought not to be occurring in Tennessee!

For the record, I want to say I stand with David Fowler and others who are fighting valiantly to pass and see Governor Haslam sign HB2414/SB2387 into law. I will do everything I can to hold responsible those leaders in Tennessee who are all too willing to turn a deaf ear to parents with moral concerns about students’ privacy rights and a deaf ear to the needs of those students themselves.

B. Nathaniel Sullivan

Copyright © 2016 by B. Nathaniel Sullivan. All Rights Reserved.


Update on the Virginia case: The Daily Signal: What the Supreme Court’s Ruling Means for Transgender Bathrooms in Schools, 8/4/16

An Open, Urgent Letter to the Pastors in Tennessee

A heated debate over bathroom access similar to what we’ve seen in other states already is playing out in Tennessee.

With very little effort and no publicity, pastors in the Volunteer State can act to protect Tennessee’s children and can make a huge difference in this debate. If you’re a pastor, will you volunteer?

Will you, as a churchgoer, volunteer to send this information to your pastor and encourage him to take action?

Together, we can make a positive difference for the sake of our children and the future of Tennessee.

Thank you.

An Open, Urgent Letter to the Pastors in Tennessee

An Open, Urgent Letter to the Pastors in Tennessee (expanded version)