| Earlier this week, the Supreme Court heard oral arguments in two cases presenting the question whether states may lawfully exclude transgender female athletes from girls’ and women’s sports: one from West Virginia; the other from Idaho. The plaintiffs in each case won in the lower courts but based on the Justices’ questions and comments during over three hours of back and forth, it appears that those victories may prove short-lived. |
| The transgender athletes’ cases present several legal issues, offering multiple possible pathways for their eventual Supreme Court resolution. After noting some of them, in this column, I shall focus on what should strike readers as a very strange defense offered by the states and the Trump administration arguing as an amicus—that the laws at issue do not actually amount to transgender status discrimination at all. As I explain below, there is a certain logic to that defense, but it is ultimately formalistic sophistry. |
| The Legal Issues |
| The plaintiff in the West Virginia case is a transgender middle school girl who wishes to participate in girls’ sports. Her case presents the question whether a state law forbidding anyone “whose biological sex determined at birth is male” from doing so violates Title IX and/or the Fourteenth Amendment’s Equal Protection Clause. The plaintiff in the Idaho case is a college student at Boise State University who sought to try out for the women’s track and cross-country teams. Her case presents the question whether a similar state law that makes eligibility turn on a “student’s biological sex,” a term that equates to sex assigned at birth, violates the Fourteenth Amendment. |
| A threshold jurisdictional issue in the Idaho case is whether it is moot. The plaintiff, who is now 25 years old, has made clear and agreed to be bound by her declaration that she no longer wishes to participate in women’s sports. She and her lawyers have no objection to a decision vacating the ruling in her favor by the Ninth Circuit Court of Appeals, which would mean it sets no lasting precedent. Nonetheless, Idaho and its amici insist on continuing the contest. The Court thus far seems willing to oblige, even though there does not appear to be any issue of national importance in the Idaho case that cannot be resolved by the West Virginia case. Thus, it looks unlikely that the Court will dismiss the Idaho case as moot, but it also does not appear to matter much whether it does so. |
| On the merits, in both cases the plaintiffs argue that the laws amount to unconstitutional sex discrimination. The West Virginia case also involves the same issue under Title IX. With respect to both the constitutional and statutory sex discrimination claim, there are at least two moving parts. |
| First, the Supreme Court has already held—in Bostock v. Clayton County in 2020—that transgender status discrimination is a form of unlawful sex discrimination for purposes of Title VII, the federal employment antidiscrimination law. The same logic would seem to apply to Title IX and the Equal Protection Clause. |
| But second, there is a catch. Everybody concedes that the defendants are legally permitted to maintain separate boys’ and girls’ or men’s and women’s sports teams. With respect to Title IX, that acceptance is bolstered by the Javits Amendment—a 1974 statutory provision that delegated power to what was then the Department of Health, Education, and Welfare to issue regulations governing Title IX and “intercollegiate activities . . . considering the nature of particular sports.” |
| That provision cannot, of course, control constitutional interpretation, but it is generally conceded—including by the plaintiffs in the cases now before the Supreme Court—that sex-segregated sports teams in public schools, colleges, and universities do not per se violate the Equal Protection Clause. Presumably that is because such teams “substantially advance” the government’s “important” interest in ensuring female athletes fair opportunities for competition, notwithstanding certain physical advantages (in size, strength, and speed) that cisgender males tend to have over cisgender females. Sex-based classifications are considered permissible under the Equal Protection Clause when they satisfy so-called intermediate scrutiny, i.e., when they substantially advance important government interests. |
| The plaintiffs nonetheless contend that excluding transgender female athletes from girls’ and women’s sports is impermissible sex discrimination. They argue that the sex line is not justified as applied to girls like B.P.J., the plaintiff in the West Virginia case (who transitioned before ever experiencing male puberty) or in older transgender females who have successfully lowered their circulating testosterone levels through medication. |
| One might think that the outcome of the cases now before the Court should depend on scientific evidence: Does prepubescent transition erase enough of the athletic advantage conferred by a Y chromosome to render the state’s interest in fair competition inapplicable? Does medical suppression of testosterone do so for transgender women who transition later? |
| Yet the states and the United States as amicus contend that even if the answer to each of those questions is yes, the transgender exclusions are lawful. They argue that the Javits Amendment and regulatory allowances for excluding cisgender males necessarily permit exclusion of transgender females from girls’ and women’s sports. And they say that there is no such thing as an “as applied” equal protection challenge. |
| In an essay on my blog earlier this week, I explained why I regard those arguments as mistaken. But even if I’m wrong about that—that is, even if the laws’ validity cannot be challenged based on sex—the laws should still be challengeable on the ground that they discriminate based on transgender status. |
| The Definitional Move |
| According to the states, the Idaho and West Virginia laws do not need to be evaluated as transgender status discrimination because, they say, the laws do not discriminate based on transgender status. That is true—but only in a formalistic sense. |
| Consider the West Virginia law. It does not literally say “transgender girls and women may not participate in girls’ and women’s sports.” Instead, it bars all males from such sports and then defines “male” as anyone “whose biological sex determined at birth is male.” |
| But defining sex as “biological sex . . . at birth” doesn’t merely discriminate on the basis of transgender status. It does worse. It denies the very existence of transgender status. At the very least, the state laws do in fact discriminate based on transgender status. An analogy can illustrate why. |
| By law in most states, including both Idaho and West Virginia, certain government jobs require applicants to have a high school diploma or GED. Suppose that in one such state, a wave of xenophobia arises, and the state legislature responds by making immigrants ineligible for such jobs. It might do so by specifically adding to the qualifications that immigrants are ineligible but suppose instead the legislature simply redefines “high school diploma or GED” to mean “high school diploma or GED issued by a school or government authority in the United States.” Surely that would still be discrimination against immigrants, even though the discrimination operates through a definition. |
| To be clear, the example is meant only to illustrate that putting discrimination in a definition does not make the discrimination go away. The state might have a sufficient reason to require a U.S.-issued high school diploma or GED—for jobs that require English language proficiency, say. The point is simply that whatever legal standard is used to measure the permissibility of discrimination does not depend on what part of the law contains the discrimination. The same is true in the transgender athletes’ cases. |
| An amicus brief I filed along with other scholars argues that transgender status discrimination triggers heightened scrutiny, but some Justices have already indicated that they think mere rational basis scrutiny applies—so even if the Court recognizes that the laws discriminate based on transgender status, the Justices could uphold the discrimination as at least barely rational. |
| Or the Court could recognize that the Idaho and West Virginia laws discriminate based on transgender status, require the application of heightened scrutiny, and then send the cases back to the lower courts (at least in the West Virginia case, where there continues to be a willing plaintiff) for a factual determination whether the interest in fair competition justifies the exclusion of transgender female athletes based on the actual scientific evidence. |
| Put differently, the cases present some genuinely difficult legal and factual questions. One would hope that the Justices would give the legal system an opportunity to fairly answer those questions. The principal arguments for the states and its amici aim to obstruct any such fair process. |
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