The entertainment for this morning’s run was the latest episode of the 5-4 podcast on West Virginia v. BPJ. The episode so outrageous that I felt surely the hosts were overstating the Court’s argument in the case. Upon further reading this morning, I was unfortunately incorrect.

Context for West Virginia v. BPJ

BPJ (pseudonym because she’s a minor) is a trans girl, having transitioned in middle school. She tried to join the cross country team in 6th grade, but the school principal said she was forbidden under West Virginia’s 2021 “Save Women’s Sports Act.” The law bars students assigned male at birth (AMAB) from competing in women’s sports.

Crucially, the challenge to this 2021 law was an as applied challenge, meaning that BPJ argued it was unconstitutional specifically as it was applied to her. She’s not making a case that the law is unconstitutional on its face, presumably because that’s a harder case to make.

Added context I think is useful:

  • BPJ is the first person ever to be banned from competing under the 2021 law.
  • The team she wanted to join was a no-cuts team, meaning that she would not be competing against girls assigned female at birth (AFAB) for a roster spot.
  • BPJ transitioned young, meaning that she has never and will never undergo puberty.

Decision of the Court

The Court, unsurprisingly, upholds the law along the usual 6-3 lines.

The majority states that sex-segregated sports are to provide a safe space for women to reap the many benefits of sports (friendship, fitness, belonging, mentorship, scholarships, etc.) while competing on a biologically level playing field. In other words, not against men, who are considered to have a biological advantage at sports.

Key ruling: Kavanaugh argues that even a general biological advantage of men over women is enough to uphold the entire law.

Even though, in this case, BPJ doesn’t have the biological advantage Kavanaugh is talking about, since she never went through male puberty? And this case is an “as applied” challenge, so the Court should only be considering this specific case…?

The Court doesn’t decide science now?

Here’s how Kavanaugh gets around this question: courts lack the tools to make case-by-case determinations about biological advantage – that belongs to schools and legislatures. But, Courts regularly make scientific decisions they have absolutely no business making? Isn’t that the whole idea of Loper Bright (2024) and the “Major Questions Doctrine”, that the Court can overrule federally-appointed experts on how to interpret the directives of Congress? The Court has tried their hand at far more sophisticated science in Sackett v. EPA (2023), Ohio v. EPA (2024), Monsanto v. Durnell (2026), Moore v. Texas (2017), and so many others.

It seems like the Court throws up his hands on the scientific determinations specifically in the category of gender and sex because it serves their argument to do so.

How do they get around Bostock?

Also! To get into some legal nerd stuff: Bostock v. Clayton County (2020) ruled that discriminating on someone because they’re gay or transgender is necessarily discrimination on the basis of sex. WHICH MEANS that they should be using the “intermediate scrutiny” standard to evaluate West Virginia’s law, requiring the government has a compelling interest in the discrimination (e.g. public health, national defense, remediation of past societal discrimination). And, according to Cornell Law School, the “justification cannot be based on overbroad generalizations about the different talents, capacities and preferences of men and women”. Which seems like exactly what they’re doing? i.e. using the presumed talents and physical capacities of men and women to justify discrimination based on sex.?

Kavanaugh and I agree that sports are very important!

Kavanaugh spills plenty of ink highlighting the value of sports

Participation in sports has enabled countless American women and girls to be on a team, to take part in the human drama of athletic competition, to overcome the agony of defeat and know the thrill of victory. And those lessons and experiences in sports have empowered millions of American women who have gone on to thrive in all aspects of American life.

I agree! Sports were a big part of my upbringing. Even if they hadn’t been, I still would have been devastated if all my friends were joining a team and I was legally not allowed to.

But he never acknowledges the fact that the Court’s decision has the result of EXCLUDING lots of children from sports? Even if we agree this case was correctly decided, for the sake of conversation, aren’t we then obligated to suggest some other way BPJ might run cross-country? This point boggles my mind. Where else in society would we accept this outcome?

Thomas’ Concurrence

Justice Clarence Thomas’ three-paragraph concurrence reads, as usual, unhinged. Though maybe we should appreciate that he says the quiet part aloud. Rather than try to pick out the issues, I’ll just quote:

Men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable “biological” characteristic, see ante, at 10; it is binary; and “man” and “woman,” “boy” and “girl,” are the terms that correspond to adults and children of each sex. See A. Byrne, Are Women Adult Human Females? 177 Philosophical Studies 3783, 3786–3787 (2020). To use language to obscure reality—to show “indifference regarding the truth”—is to lie to the public and cease to treat our fellow citizens “as equal[s].” J. Pieper, Abuse of Language—Abuse of Power 17, 21 (1992).

In other words, Justice Thomas denies that transgenderism is real.

It’s shocking to read, but that opinion is likely a subcurrent of the majority opinion, because it’s the most rational explanation for the conclusion Kavanaugh reaches.

Dissents

I didn’t make it very far into the dissents, since I was rushing to get to the office.

From the podcast summary, it seems like she focuses primarily on the point of using intermediate/heightened scrutiny, and argues that the 14th Amendment Equal Protection question was prematurely decided.

I’ll revisit this section once I’ve had a chance to finish reading the dissents.

Misc. other thoughts and questions

First, Kavanaugh cites the International Olympic Committee: “the IOC found that ‘athletes retain Male performance advantage due in part to training effects and fixed traits. There is no current evidence that testosterone suppression or gender-affirming hormone treatment eliminates this advantage.’” My question: is there any evidence for the other side of the argument? i.e. to suggest that gender affirming treatment (ESPECIALLY for girls like BPJ, who never underwent male puberty) DOESN’T eliminate that advantage? Because it seems like that would be the baseline.

Second, all arguments take for granted that people assigned male at birth have a biological advantage over people assigned female at birth. However, for the sake of conversation, say that there are only two genders – male and female, defined biologically at birth. Each gender has a spectrum of raw athletic ability. Surely those spectra overlap? Surely Serena Williams has greater athletic ability than plenty of men at the bottom end of the spectrum of male athletic ability?

The justices argue about biological superiority, but they never poke at what actually constitutes that superiority. Is it amount of testosterone? We can test that. If so, how should high-testosterone AFAB children and low-testosterone AMAB children compete? More philosophically, does it make sense to be segmenting our children based on their biological and physiological characteristics lile this?

Stepping back, even if we wanted to define spectra like that, they would be quite hard to define! While sex is a binary category in the scientific sense, we don’t have a deterministic way to classify it. I’m not going to attempt an explanation here of the myriad methods of determining gender (e.g. chromosomal, gonadal, hormonal, etc.), because I’m still trying to understand it all. But the key point for this case is that, when Kavanaugh uses “biological male” (i.e. AMAB), he points to it a settled and absolute measurement. But the West Virginia law in question indexes on sex “determined at birth”, which is defined by what goes on the birth certificate, decided by a nurse’s visual inspection of external genitalia. Which is not a perfect system for deciding whether the child will have an athletic advantage!

The athletic advantage comes from male puberty – when testosterone does work on bones, muscles, hemoglobin, and the cardiovascular system over years, starting around age 11. Measuring only on external genitals at birth can result in false negatives, where the child appears female at birth, but becomes fully adrogenized during puberty, and false positives, where the child appears masculine at birth, but nonetheless has ovaries and XX chromosomes. In other words, being born is not a 1:1 correlation with getting big and strong when you turn 13.

Again, all of this is MOOT in the case of BPJ, since she never underwent male puberty and therefore has none of the “biological advantage” that the Court mentions.

the end, for now

I’ve been learning a lot on this issue as a result of this case, and I have much more I could ramble on. But I’ll leave it there for now, so I can return to my long-running, still-incomplete campaign finance caselaw essay.

Anyway, all points to make about this case I think are less important than the key point I’ve already made: the Court emphasizes how powerfully important sports are to young girls, while declaring that a part of the population is barred from accessing them.