You can’t ask schools and sports leagues to avoid discriminating on the basis of sex if you can’t even tell them what sex is.
The Supreme Court heard arguments this morning in two cases on whether state laws are permitted to keep biological males out of girls’ and women’s sports. While it is, as is often the case, unclear exactly how the Court will decide these two cases and what rules will emerge from the decisions, there appeared to be little doubt that the state laws will survive challenge.
There are two cases because they come to the Court differently. In West Virginia v. B.P.J., the Fourth Circuit enjoined a West Virginia law on the basis of the equal protection clause as well as Title IX of the Civil Rights Act, which since 1972 has banned exclusion “on the basis of sex” from “any education program or activity receiving Federal financial assistance,” including sports. In Little v. Hecox, by contrast, the Ninth Circuit ruled against Idaho’s law only on the constitutional question. Hecox is also procedurally complicated by the fact that the plaintiff is now trying to moot the case at the Supreme Court level for fairly nakedly strategic reasons. But doing so would not get rid of B.P.J., so, one way or another, the Court is very unlikely to duck the issue.
It was plain from the strategy and rhetoric of the challengers that they knew they had an uphill battle with this Court after Skrmetti. There were several signs of this. Justice Neil Gorsuch, the author of Bostock, invited Kathleen Hartnett (the ACLU lawyer arguing the two cases) to talk about whether transgenderism should be a suspect class (triggering automatic strict scrutiny of any gender-identity distinctions), but she did not otherwise push that ambitious agenda, and the liberal justices shied away from it. Hartnett spoke of her client winning the case as if it were a distant, unlikely outcome (“even if she happens to somehow win this case.”). Moreover, the challengers pushed not for the argument that every biological male should be able to play against women and girls but that only those who fit a custom-designed definition of suppressed testosterone should be able to do so.
This meant that much of the argument descended from the general debate over whether sex is real, and whether sex-specific sports competitions are permissible, to an often soporific discussion of whether the Court’s precedents permit an as-applied challenge in sex discrimination cases, as opposed to facial challenges. For the nonlawyers: a facial challenge argues that the law is invalid because it discriminates; an as-applied challenge argues that the law is invalid in some cases because it has the effect of discriminating against the particular plaintiff. Much of that discussion, in turn, was about cases in which the Court said it was deciding other issues, but either the dissent or a later case described the opinion as an as-applied challenge. Even Justice Elena Kagan had to acknowledge that the Court’s precedents on that question were “surprisingly sparse.”
The highlight of the argument came when Justice Samuel Alito got Hartnett to concede that she didn’t even have a definition of what a man or woman is (emphasis mine):
ALITO: Do you agree that a school may have separate teams for a category of students classified as boys and the category of students classified as girls.
HARTNETT: Yes, Your Honor.
ALITO: If it does that, then is it not necessary for there to be, for equal protection purposes, if that is challenged under the equal protection clause, an understanding of what it means to be a boy or a girl or a man or a woman?
HARTNETT: Yes, Your Honor.
ALITO: And what is that definition for equal protection purposes? What does, what does it mean to be a boy or a girl or a man or a woman?
HARTNETT: Sorry, I misunderstood your question. I think that the underlying enactment, whatever it was, the policy, the law . . . we’d have to have an understanding of how the state or the government was . . . understanding that term to figure out whether or not someone was excluded. We do not have a definition for the court, and . . . we’re not disputing the definition here. . . .
ALITO: Well, how can you, how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes? . . .
Suppose this school that has a boys . . . track team, and a girls track team . . . and a student who has the genes and the reproductive system of a male and had those at birth and has never taken puberty blockers, never a taken female hormones, never had any gender-altering or -affirming surgery says, “Nevertheless, I am a woman. That’s who I am.”
Can the school say, “No, you cannot participate on the girls team?”
HARTNETT: Yes, they can do that.
This is a disastrous answer (and the audio shows how fumbling Hartnett was in navigating this exchange). Title IX uses the term “sex” — you can’t bring a Title IX case without some idea of what the key statutory term means. The same is true for invoking the 14th Amendment’s cases on sex discrimination, which has its own standard of review. And you can’t ask schools and sports leagues to avoid discriminating on the basis of a line if you can’t even tell them what the line is.
As Justice Amy Coney Barrett noted, the challengers’ proposed solution (having transitioned student-athletes submit regular, ongoing proof of suppressed testosterone) seemed a lot more invasive and onerous than just dividing up males and females. Bear in mind that Barrett joined Alito and Justice Clarence Thomas in Skrmetti in arguing that the Court should rule that transgenderism is not a suspect classification. Justice Brett Kavanaugh, however, framed the question simply as why the Court should get involved in constitutionalizing this area. Kavanaugh, who offered his own ode to progress made in women’s sports, got both states’ lawyers to back away from arguing that the Constitution compels there to be sex-separated sports leagues, although West Virginia is pressing that position in other litigation.
A key problem for the challengers is that they were reduced to contending that a policy that is nondiscriminatory toward 99 percent of the people it applies to can nonetheless violate intermediate scrutiny on an as-applied basis toward a small subset of transgender athletes. But intermediate scrutiny has never required that a policy be perfectly tailored to avoid gender unfairness toward anyone. Allowing as-applied challenges by small subsets of people would, de facto, convert intermediate scrutiny into such a standard — as Chief Justice John Roberts observed, “That sounds an awful lot like strict scrutiny.” When Barrett noted that laws do not have to be precisely tailored under intermediate scrutiny, Justice Ketanji Brown Jackson asked why the laws could not just make exceptions. West Virginia’s lawyer, somewhat exasperated by this point with Jackson, shot back that this was literally what tailoring is.
This has been updated to match the argument transcript.