The Supreme Court’s decision in West Virginia v. B.P.J. has sparked controversy, with many arguing that the court decided the wrong issue in the case of transgender athletes. The court held that state bans forbidding transgender girls from participating in girls’ sports violated neither Title IX of the Education Amendment Acts of 1972 nor the equal protection clause of the 14th Amendment.
The case centered around two main components: the definition of “female” and sex segregation in sports. The plaintiffs challenged the laws under Title IX, which prohibits sex discrimination in education but allows for “separate teams for members of each sex.” The Supreme Court upheld the laws, with the conservative six-justice majority ruling that they survived both the statutory and constitutional challenges.
The plaintiffs’ argument focused on the exception-to-segregation component, which emphasized that while sex segregation was valid in general, it was invalid as applied to them. However, this approach was flawed, as it invited the comparison category of “biological males.” A stronger argument would have been to focus on the definitional component, questioning what determines whether someone is a biological female under federal law.
The majority’s discussion of Title IX highlighted the exception-to-segregation component, with all nine justices believing that the term referred to “biological sex.” The plaintiffs argued that Title IX permitted schools to prohibit most biological males from playing on women’s and girls’ teams but required an exception for biological males who identify as female and have taken puberty blockers or hormones.
The majority identified the statutes’ two components and argued that they served important state interests. However, when it turned to the challengers’ arguments, it once more highlighted the exception-to-segregation component. The court concluded that the plaintiffs’ exception-based argument was fatally flawed because it was arbitrary and unworkable.
The partial dissent rebutted the majority, arguing that exempting an individual from an exclusion is often constitutionally required. The dissent also argued that the majority lowered the burden the state needed to show in barring such individuals. Nevertheless, the dissent, too, focused on the exemption-based sex segregation argument, rather than the definitional component.
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To better understand the issue, it is essential to consider the passage of Title IX in 1972, which recognized sex-segregation in sports between males and females. The laws in question, passed by Idaho and West Virginia, defined sex based on reproductive biology and genetics at birth. However, these definitions were problematic, as they targeted only transgender girls and were untethered from the proffered rationales for having girls’ only teams.
Idaho’s law excluded only girls whose testosterone levels were endogenously determined, while someone with a higher testosterone level than any transgender girl would be able to participate in a sport, as long as that testosterone level was endogenously produced. This discrepancy highlights the flaws in the states’ definitions of sex.
In retrospect, the challengers’ case would have been stronger if they had focused on the definitional component of their argument. By questioning what determines whether someone is a biological female under federal law, they could have highlighted the arbitrary and unworkable nature of the states’ definitions. Ultimately, it would have made the most sense to send the case back to the trial court and let it decide which characteristics were relevant to gun rights and competitive equity and safety.
The Supreme Court’s decision has significant implications for transgender athletes, and considering the potential consequences of this ruling is essential. As the issue continues to evolve, examining the complexities of sex segregation in sports and the definition of “female” under federal law is necessary.
It is important to consider the potential consequences.
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