Horowitz: Just two SCOTUS justices believe that only a woman can be a woman

In a Supreme Court term largely devoid of hot-button cases, it's more telling what the high court declines to rule upon than what it does rule on.

It's not like we are asking a supposed 6-3 conservative majority on the court to overturn long-standing bad precedent enshrining the left's cultural rotgut into the 14th Amendment. We merely ask that the justices not add new phantom precedent under the banner of a conservative court. Yet only two justices evidently believe in the most basic facts of nature — up to and including a man being a man and a woman being a woman.

Even before Trump appointed three allegedly conservative justices to the court, I always thought the lower court ruling in Gloucester v. Grimm, one of the pioneering transgender cases, would be overturned. I guess I gave the "conservative" gatekeepers of judicial nominations too much credit.

In April 2016, Judge Henry Floyd, an Obama appointee on the Fourth Circuit Court of Appeals, wrote a 2-1 decision (Grimm v. Gloucester County School Board) forcing a local school board to comply with Obama's executive overreach, which demands that schools allow boys into girls' bathrooms (and vice versa).

At issue is a girl in Gloucester County, Virginia, who wanted to use the boys' bathroom in school. The liberals who are at war with the most inviolable science in our everyday lives believe that she is really a he. When the school board refused to change nature due to an unfortunate mental disorder, the student sued in district court in 2015, claiming discrimination based on an absurd reading of Title IX proposed by Obama's Department of Education.

Although Title IX of the United States Education Amendments of 1972 was designed to prohibit discrimination in schools against one gender, the Obama administration took it upon itself to "expand" the law to redefine gender itself. In January 2015, the DOE's Office of Civil Rights promulgated a regulation barring schools from assigning bathroom facilities based on biological sex, demanding they instead assign them based on someone's chosen gender. In addition to representing a facial absurdity, this Fourth Circuit opinion, which reversed a district court decision, was lawless and a complete twisting of a congressional statute.

Judge Floyd absurdly ruled that the 1972 law somehow covered a concept that they couldn't have imagined at the time. "The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past," wrote Judge Floyd of the Fourth Circuit.

The length of time it took to get this case before the Supreme Court was frustrating. But even a pessimist like myself never believed that the Supreme Court would uphold such an opinion. Now, three conservative justices later (Gorsuch, Kavanaugh, and Barrett), all but Thomas and Alito voted Monday to deny the appeal from the school board and allow the Fourth Circuit's ruling to stand.

This denial of an appeal speaks just as loudly as a ruling itself. We already know that Gorsuch, writing the majority opinion in Bostock, believes that the word "sex" in Title VII of the Civil Rights Act means transgenderism. So, I guess if he believes transgenderism can be retrofitted into a 1964 statute, it's not a jump to apply it to a 1972 statute as well. But it's also jarring that Kavanaugh and Barrett declined to add their names to the dissent from denial of certioari.

At the time of the Fourth Circuit ruling, Judge Paul Niemeyer, the lone dissenter, observed that the court literally redefined the definition of "sex" from the bench and "for the first time ever, holds that a public high school may not provide separate restrooms and locker rooms on the basis of biological sex." Niemeyer further observes that this decision "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." And this was all done based on a Department of Education edict, overriding congressional statutes.

The majority opinion even recognized "the widely accepted practice" of separate bathrooms (no kidding!) and the inherent safety and privacy dangers posed by this social transformation. But in classic legal fog, Judge Floyd concluded, "It is not apparent to us, however, that the truth of these propositions undermines the conclusion we reach regarding the level of deference due to the Department's interpretation of its own regulations."

Once again, the two unelected branches of government — the lower courts and the Department of Education — ganged up against the legislature to promote social transformation without representation. And we couldn't even get a "conservative" Supreme Court to overturn the decision.

It's interesting how the courts seem to be concerned with the "right" of someone to use the opposite gender's bathroom, but there is no right to breathe freely from one's mouth and nose or prevent experimental injections in one's body. They are constantly discovering new rights while uprooting the self-evident ones we celebrate this week from our founding documents. It's all in the science.

Either way, one should not look to the Supreme Court to conserve anything other than bad lower court rulings. This is the same court that refused an appeal from Idaho after the Ninth Circuit forced its prison system to pay for a castration of a male sex offender in prison. As legal scholar Josh Hammer ominously warned following last week's disappointing opinion on religious liberty: "Unless fundamental changes are made that cut to the core of the modern conservative legal movement, conservatives will remain disappointed. The Court is not, and will not be, our savior."