Tomorrow the Supreme Court will hear oral argument in two cases that could finally provide clarity on the legal dimension of one of today’s most contentious debates: whether states can protect women’s sports by restricting participation to biological females. Little v. Hecox and West Virginia v. B.P.J. present the Court with the opportunity to affirm what should be obvious—that recognizing the biological reality of sex differences does not violate the Equal Protection Clause or Title IX. (Both cases present the constitutional question, and B.P.J. also includes the Title IX question.)
I discussed these cases in detail in my earlier piece. Lower courts have split on whether transgender status triggers heightened scrutiny, and the Fourth and Ninth Circuits below blocked the enforcement of the state laws at issue that protect women’s sports. As I noted in my analysis of the Court’s recent decision in United States v. Skrmetti, the old days of judicial self-aggrandizement that prevailed when Roe v. Wade was decided are behind us. I am therefore confident that the Court will not allow Title IX’s promise of equal opportunity in athletics to be undermined by an ideology that denies basic biological facts. Oral argument still promises to be interesting as this is one of the most closely watched cases of the term.