On May 19, 2021, the Alabama Center for Law and Liberty filed an amicus curiae (“friend-of-the-court”) brief with the Eleventh Circuit supporting the State. Our brief had three major points. First, the trial court forgot the most important parts of the Supreme Court’s sex-discrimination decisions: the element of discrimination itself. In order for those precedents to apply, there has to be an element of sex discrimination, meaning that the government has to treat one sex better or worse than the other. In contrast, Alabama’s policy applies equally to both sexes. Consequently, there is no constitutional violation. 

Second, if the trial court’s reasoning was allowed to stand, then it would lead to absurd consequences beyond just the present case. If someone can sue the government simply because it recognized their sex instead of actually discriminating on the basis of sex, then it would blow the door open to lawsuits every time the government simply notes whether you are a man or a woman. Applying that same logic to race, then over 331 million Americans could sue the federal government for noting each person’s race in the 2020 census. 

Finally, we provided the Eleventh Circuit with a comprehensive review of the Equal Protection Clause’s original meaning. It is impossible to understand the Equal Protection Clause without the natural law principles of our Declaration of Independence. The Equal Protection Clause’s purpose was to secure the God-given rights of each person, but those rights do not include the right to change one’s sex. The Supreme Court recognized as much in 1973, holding in Frontiero v. Richardson that sex is “an immutable characteristic determined solely by the accident of birth.”