On Tuesday, the Supreme Court will hear oral argument in a pair of cases—West Virginia v. B.P.J. and Little v. Hecox—that present the question whether state laws that preserve girls’ and women’s sports teams for girls and women violate federal law. In very poorly reasoned opinions, a divided Fourth Circuit panel ruled that a West Virginia law violates Title IX and the Equal Protection Clause of the Constitution, and a Ninth Circuit panel ruled that an Idaho law violates the Equal Protection Clause.
A few observations:
1. I’ve had little to say recently about these cases for the simple reason that there is little that needs to be said. The challenged laws define who may play in girls’ and women’s sports on the basis of sex, not on the basis of gender identity. Rather than discriminate on the basis of gender identity, they disregard gender identity. Boys can’t play on girls’ teams, and that’s true both for boys who identify as male and those who identify as female.
Once you grasp this elementary point—a point that escaped the Fourth Circuit and Ninth Circuit—the claims dissolve into nothingness.
2. It makes no sense to think that the Court’s 2020 ruling in Bostock v. Clayton County might extend to this realm. The Court ruled in Bostock that Title VII’s ban on discrimination “because of … sex” prohibits discrimination on the basis of transgender status (or sexual orientation). In expanding the grounds on which employers may not discriminate, that ruling (which I believe to be deeply mistaken) did not impose conflicting obligations on employers: An employer who does not discriminate on the basis of (biological) sex is also capable of not discriminating on the basis of transgender status.
The plaintiffs here accept that it is lawful for schools to have separate teams for girls and women. But once you accept that classifications on the basis of sex are permissible, it is logically impossible to insist that girls’ teams must also classify on the basis of gender identity. The latter destroys the former.
3. You shouldn’t need good facts—good from the perspective of defenders of girls’ and women’s sports—to make good law. But anyone who might be confused on the matter should read the vile (and distinctively male) sexual comments that a female competitor of the West Virginia plaintiff says he routinely made to her and to her other teammates. I’m not going to repeat the vulgarities here, but the interested reader may find them in this amicus brief (pp. 13-14) as well as in the sworn declaration that the competitor filed in the district court.
4. These cases should be decided unanimously. They give the liberal justices an easy opportunity to show that they’re not enslaved to the demands of transgender ideologues.