By Jeff Childers
Good morning, and Happy 2023, C&C! Your first new year roundup includes: blockbuster Eleventh Circuit decision protects sex-segregated school bathrooms from gender fluidity; drama arises after five holdout Republicans refuse to vote for Kevin McCarthy as the new House Speaker; the Wall Street Journal asks whether vaccines are fueling new covid variants (yes); more SADS celebrity and medical deaths; and the Biden Administration assigns Air Marshals to the sub station.
🗞*WORLD NEWS AND COMMENTARY* 🗞
🧑⚖️ On Friday, the Eleventh Circuit entered a blockbuster 150-page decision in Adams v. St. John’s School Board, a case challenging a school district’s right to prohibit trans kids from using the opposite-sex bathroom. The case was unusual in that the final decision was entered by the entire 11th Circuit panel — every single judge — and reversed both the original district court decision as well as TWO intermediate appellate decisions by three-judge panels.
The Court held 7-5 that separating kids by biological sex is legal, constitutional and not discriminatory.
Plaintiff Drew Adams is a girl who acts like a boy. She dresses like a boy, she adopted a male name (Drew), her parents treat her like a boy, she takes hormones and got a de-boob job. Although her high school offered Drew gender-neutral bathrooms, Drew felt that the only way she could “fully” embrace manhood was to use the boy’s restrooms, just like real boys.
So she sued her school in the Middle District of Florida, Jacksonville Division, to change the bathroom policy and for money damages.
The Middle District court found in Drew’s favor, holding that the school district violated her constitutional rights, her rights under Title IX, and was blatantly discriminatory against trans students. The judge ordered the school to pay $1,000 in damages, to change the bathroom policy and, I assume, to pay Drew’s attorney’s fees. The school board appealed to the Eleventh Circuit, and a three-judge panel found 2-1 that the Middle District’s decision was correct.
That’s where things got interesting.
Another judge, not on the three-judge panel, stopped the order through a process called “withholding the mandate,” which signaled that review by the entire court was likely. At that point, the original three-judge panel withdrew their first decision, and then published a new, completely-rewritten decision again upholding the Middle District, but this time on a completely different legal theory that had never been raised by the parties in the lawsuit below.
As an officer of the court, I’ll only say that kind of thing is highly unusual, and leave it at that.
Obviously, it’s impossible to summarize the 150-page decision, which included a special concurrence and no fewer than four dissenting opinions. But I’ll cite two short parts from a section where the majority criticized the dissent at some length.
First, you’ll be encouraged that at least seven out of twelve judges on the Court found that Drew Adams is a biological girl, period. Her “gender identity” is completely different from whether under the law she is a girl or not. Boys bathrooms are for boys, not for girls who dress like boys:
In holding the bathroom policy unconstitutional, the district court never made a finding that Adams is a “biological boy,” as the dissent claims, which is the classification that the School Board uses to restrict access to the male bathrooms and the classification that Adams is challenging. The district court looked to Adams’s gender identity—not Adams’s biological sex—for purposes of evaluating the bathroom policy. And even the dissent acknowledges, as it must, that gender identity is different from biological sex.
Next, the Court cited the Frontiero case, in which the U.S. Supreme Court said that “sex … is an immutable characteristic determined solely by the accident of birth:”
Thus, despite the dissent’s suggestion, the district court did not make a finding equating gender identity as akin to biological sex. Nor could the district court have made such a finding that would have legal significance. To do so would refute the Supreme Court’s longstanding recognition that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Frontiero v. Richardson (1973); see also Immutable, Oxford English Dictionary (2d ed. 1989) (“Not mutable; not subject to or susceptible of change; unchangeable, unalterable, changeless.”).
In saying sex is immutable, they meant it cannot be changed. The majority seemed intrigued by the concept of “gender fluidity,” which seems to imply something more “mutable” than “immutable.” In saying that sex is determined SOLELY by birth, they meant you can’t change it next Wednesday based on how you are feeling at the moment, or for any other reason. The Court explained, “There is simply no alternative definition of ‘sex’ for transgender persons as compared to non transgender persons.”
The Court wrote that biological differences between the sexes was the fundamental reason for constitutional and Title IX protections, holding “To fail to acknowledge even our most basic biological differences . . . risks making the guarantee of equal protection superficial, and so disserving it.”
In what should be, but isn’t, entirely uncontroversial, the Court also recognized that non-trans kids have protectable privacy rights in the bathroom, explaining that “the protection of individual privacy will occasionally require some segregation between the sexes is beyond doubt.” The majority rejected the lower court’s argument that Drew didn’t violate anyone’s privacy because she just used a private stall and then left the bathroom. But the Court disagreed, explaining the boy’s bathroom also has undivided urinals, and students change clothes in there.
In other words, ALL students’ privacy begins at the bathroom door.
Finally, in what will probably become the most-cited line from this decision, the Court explained that having separate policies based on biological sex does not discriminate against trans people: “A policy can lawfully classify on the basis of biological sex without unlawfully discriminating on the basis of transgender status.”
A few minor but noteworthy points:
1) In the entire opinion, the majority never used a pronoun for Drew except when quoting other people. It was odd, but what can you do these days? Anyway, and most significantly, the majority never used Drew’s “preferred pronoun.”
2) Instead of using the fake disclaimer “sex assigned at birth,” the majority found that “Adams’s biological sex — sex based on chromosomal structure and anatomy at birth — is female.” Boom.
3) The Court recited that out of 40,000 St. John’s county students, only 14 are “trans.” I can’t remember seeing any stats like that before. Those kinds of figures would be helpful.
4) The Eleventh Circuit sits over Florida, Georgia, and Alabama, and the new holding binds those states. Adams’ lawyers — and probably whoever is financing the trans movement — are now weighing whether to appeal to the US Supreme Court, which could decline to hear the case until there is a split among the circuits.
🔥 The Republicans take control of the House this week, and the first order of business is to elect a new Speaker, to take the gavel away from Nancy Pelosi. Usually a rubber-stamp process, this time some drama has arisen. Roll Call ran a story Friday headlined, “Speaker Race Headed Toward Dramatic Floor Election.”
A ragtag group of “Never McCarthy” Republicans created the drama by refusing to agree to vote for Kevin McCarthy as the new Speaker of the House. Tomorrow — Tuesday — the full House votes on it. And because of the slim Republican majority, McCarthy can only afford to lose four Republican votes.
The five Republican holdouts are Representatives Andy Biggs (Arizona), Bob Good (Virginia), Matt Gaetz (Florida), Matt Rosendale (Montana), and Ralph Norman (South Carolina). Their positions are well expressed by Andy Biggs’ recent tweet:
You can be confident the Republicans have been working furiously over the weekend to pacify at least two of the rebels, the minimum number needed to get McCarthy elected. They’ll be offering carrots like committee chairmanships, as well as sticks, like denial of committee assignments altogether. But the five have pledged to stand together, so we shall see.
💉 The top of the Wall Street Journal’s opinion section this morning finally asks the obvious question: “Are Vaccines Fueling New Covid Variants?”
The op-ed begins by noting the new, fast-spreading XBB variant. (Curiously, Ethical Skeptic reported this morning that although XBB is spreading, national case counts are falling. He was rubbing his hands anticipating the CDC is running out of places to bury excess deaths.) Then, citing the same new study I discussed last year, it dropped this truth bomb on WSJ readers:
Growing evidence also suggests that repeated vaccinations may make people more susceptible to XBB and could be fueling the virus’s rapid evolution.
Well, THAT can’t be good for business. But it got even more real when the article noted that vaccines might be making people get sicker, not better protected:
The same study posits that immune imprinting may be contributing to the viral evolution. Vaccines do a good job of training the immune system to remember and knock out the original Wuhan variant. But when new and markedly different strains come along, the immune system responds less effectively… current herd immunity and BA.5 vaccine boosters may not efficiently prevent the infection of Omicron convergent variants.
Uh oh. In other words, the jabs are neither safe nor effective. Dang.
Then it cited two different recent studies confirming a very interesting fact about so-called immune-imprinting, which refers to training the immune system to an archaic variant so that it gets stuck in a rut, and can’t make antibodies to new variants very well. The new studies included the Cell study plus another one in the New England Journal of Medicine — neither considered fringe anti-vaxx sources.
The op-ed said the NEJM study found evidence of immune imprinting in jabbed subjects, especially when it came to the new dominant variant XBB:
A New England Journal of Medicine study published last month provides more evidence of the vulnerability caused by immune imprinting. Neutralizing antibodies of people who had received the bivalent were 26 times as high against the original Wuhan variant as they were against XBB and four times as high as they were against Omicron and the BA.5 variant.
What this shows is that jabbed people are uselessly mounting much stronger responses to the original Wuhan variant than they are against the new variants, which is strong evidence that their immune systems have been “imprinted” with the archaic version of the virus. Then the article cited the even newer Cell study finding much worse performance by jabbed people against XBB:
Similarly, a study this month in the journal Cell found that antibody levels of people who had received four shots were 145 times as high against the original Wuhan strain as the XBB variant. A bivalent booster only slightly increased antibodies against XBB. Experts nevertheless claim that boosters improve protection against XBB. That’s disinformation, to use their favored term.
Another way to say it is jabbed people’s immune response to XBB is 1/145th as good as their response to the now-defunct original Wuhan strain, and the super-duper, new-and-improved “bivalent booster” doesn’t really improve much on that poor performance. It’s so weird how people aren’t sprinting to the pharmacy to get their bivalent boosters.
Back in 2020, some epidemiologists — quoted regularly and often in Coffee & Covid — were warning that mass-use of a “non-sterilizing” vaccine would quickly lead to antibody-evading variants. Apparently this phenomenon has been known to “science” for years, but has been ignored by experts until now. Now that it’s too late.
All this highlights the primary factual difference between coronaviruses and other viruses like measles and polio against which vaccines have staying power. The latter viruses are genetically stable and don’t evolve much. But coronaviruses — including the common cold — are well-known to rapidly evolve, making the prospect of a developing an effective vaccine a never-ending wild goose chase.
Here’s a link to the non-paywalled version: Are Vaccines Fueling New Covid Variants? – WSJ.
💉 Memphis rapper Lola Chantrelle Mitchell, 43, known as ‘Gangsta Boo’, passed away suddenly and unexpectedly AT HOME around around 4pm on Sunday.
Here she is in an interview just a month ago. She looked fine.
No cause of death has been released. Or ever will be.
💉 Drummer Jeremiah Green, 45, founding member of rock band Modest Mouse, died suddenly AT HOME last week, mere days after the band announced he had been diagnosed with a lightning-fast, turbo Stage 4 cancer.
On December 28th, Modest Mouse’s lead singer Isaac Brock announced on Facebook that Jeremiah had just been diagnosed with cancer, was receiving treatment, and things were going well.
Then on Saturday, Jeremiah’s mother posted on Facebook that “He went peacefully in his sleep.” In other words, at home.
Jeremiah’s sudden and unexpected Stage 4 cancer was definitely NOT the jabs. How dare you.
💉 Queensland, Australia doctor Wilson Chin, 31, who ran the Pacific Pines covid vaccination center, died suddenly and unexpectedly AT HOME last week.
Dr. Chin was in the news back in January, when he was forced to close his under-12 vaccination clinic after significant local protests about two girls who began screaming and fainted after receiving the safe and effective vaccines. At the time, Dr. Chin tearfully complained about receiving death threats and explained, “We’re just trying to keep people safe”.
No cause of death has been released, but his doctor confirmed it was not suicide.
Here’s how the Daily Mail Australia wrote its unintentionally ironic December 28th headline about Dr. Chin’s passing:
Those nefarious anti-vaxxers! They have to be involved, somehow. It’s the best theory the Daily Mail could come up with. What else could it be?
🔥 Finally, Judicial Watch ran a story yesterday headlined, “Al Qaeda Plans Plane Attacks Using ‘New Techniques and Tactics’ as Air Marshals Keep Getting Sent to Mexican Border.”
JW says it got hold of a copy of a December 31st Homeland Security intelligence alert titled, “Al-Qaeda says upcoming attacks on US, possibly involving planes, will use new techniques and tactics.” Well, that’s concerning, but fortunately we learned our lesson on 9/11 and have beefed up our national transportation security infrastructure to stop plane attacks.
That is, until Homeland Security met Joe Biden.
Biden has apparently been ordering U.S. Air Marshals to the border, to help with “processing” illegal immigrants. According to Sonya Hightower-LaBosco, a retired Air Marshal who is now the executive director of the Air Marshal National Council (AMNC), federal Air Marshals are currently “making sandwiches for [illegals] and driving them around like Uber or picking up supplies.”
The head of the AMNC, David Londo, told Judicial Watch yesterday that the redeployment of air marshals to the southern border was “insane” considering the latest aviation threat from Al Qaeda. “Either they don’t care about aviation security, or they really think it is secure,” Londo said.
The AMNC formally complained yesterday, sending a letter to federal transportation officials. In the letter, the council described the re-assignments like this:
The council also fired off a letter to Secretary Mayorkas, which described the problem this way:
I don’t know. Warming up sandwiches is important, especially if it’s a panini or a grilled cheese or something. Nobody wants a cold grilled cheese sandwich, the cheese just gets hard, and it’s gross. That’s totally inhumane. Our country is way better than that. Cold sandwiches are literally 1,000 times worse than putting migratory kids in cages; probably even worse than the multitudinous horrors of climate change.
This is what you want:
As I see it, it’s a toss-up. Air marshals are important in stopping terrorist hijackers but so are warm sandwiches for illegal immigrants. Who can say? We have to trust the experts:
Have a marvelous Monday! I’ll see you back here tomorrow, for another piping-hot mug of Coffee & Covid.
C&C is moving the needle and changing minds. If you can, I could use your help getting the truth out and spreading optimism and hope: https://www.coffeeandcovid.com/p/-learn-how-to-get-involved-
© 2022, Jeff Childers, all rights reserved
Published with author’s permission.
The views and opinions expressed in this commentary are those of the author and do not necessarily reflect the official position of Citizens Journal Florida.