I love when things are not as they seem. When I dive beneath the surface, probing with questions, and arrive at a result far more complex and interesting than I expected. Which is why I’m usually turned off by overly broad statements about political issues.

So, when people near me on the political spectrum say things like “the Right just hates trans people” or “the Right doesn’t believe trans people are real,” it grates on the part of my brain that hates simplicity. Surely, there’s something more going on here? Usually, when I ask that, I end up being right. In this case, it’s starting to look like I may be wrong.

For me, the turning point was last week, when I read about West Virginia v. BPJ, the recent Supreme Court case about a trans who wasn’t allowed to join her middle school’s cross-country team because of a new state law.

Quick aside: for those who are less obsessed with following the Supreme Court as I am (i.e. normal, sane people), this case is a perfect example of why I LOVE constitutional law cases. Politics is vast, dispersed, and overwhelming – thousands of people, making hundreds of decisions per day, affecting the lives of the population in millions of different ways. It’s so hard to grasp! To analyze! In the neat and tidy world of the Supreme Court, we take these complex issues and distill them down into bite-sized pieces we can inspect and evaluate.

But distillation is dangerous. And arguments touted as reason aren’t always so.

I’m getting ahead of myself! Back to West Virginia v. BPJ:

facts of the case

BPJ is a trans girl; in the legal system, we use initialed pseudonyms for minors. 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.”

According to the law, “biological males” can’t compete in women’s sports. I believe the preferred term is AMAB (Assigned Male at Birth), but please do correct me if I’m wrong. The law defines sex “solely on the individual’s reproductive biology and genetics at birth,” which they look at your birth certificate to find out. This question of how sex is defined turns out to be way more interesting and relevant than I thought – we’ll come back to this later.

Before getting into the arguments, there’s one key piece of lawyer-speak understand. When you bring a case to the Court and argue that a law is unconstitutional, you can do it in two ways:

  1. An as applied challenge, where you argue that the law is unconstitutional specifically as it’s applied to you in this case, or
  2. A facial challenge, where you argue the law is unconstitutional on its face, in all cases. BPJ challenges this law specifically as it’s applied to her.

Why would she do that, you ask? BPJ started her transition in 3rd grade, so she never underwent male puberty. So, she argues, if the whole point of the law is not to preserve women’s sports as a safe space for women to compete against on a level playing field, surely it shouldn’t apply to her? Maybe the law could make sense in other cases, but she has no biological advantage!

the ruling

The Court decies, in a 6-3 majority, that West Virginia can block BPJ from competing in any women’s sports.

Pause.

Supreme Court cases can be a lot like Wikipedia rabbit holes. I start out with a specific question, then I get hooked on another question, then another, and before I know it I’ve skimmed 20 sections of 15 different Wikipedia sections and – while I certainly had fun – I’m not sure what exactlty I learned? Since I’m not legal scholar, reading these cases is a fascinating series of rabbit holes. Every claim, footnote, and citation is hours of research for me to explore. But I don’t want you to lose the plot, so I think it’s important to start at the end:

I believe sports are an important part of childhood. Check out this quote:

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.

Those wise words are from Justice Brett Kavanaugh himself, from this very majority opinion, West Virginia v. BPJ. In his conclusion, Kavanaugh goes on to write:

In so ruling, we emphasize one last point. Most of the biological female and transgender student-athletes who are involved in transgender sports disputes around the country are teenagers or in their early twenties. Those student-athletes want to play sports. Their desire to compete warrants respect. No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.

And yet, the state can bar BPJ – and any trans student like her – from sports. Sports could empower her to thrive, but nonetheless she can’t participate. According to the Court, she doesn’t deserve to be ostracized, yet she’s delibrately shut out from a group. How could any legal reasoning square those circles?

Let’s try to understand.

the argument

outline for the rest:

  • facts to add:
    • no-cuts team
    • hecox stuff
    • BPJ is only known case of aplication for this law
  • steelman court’s argument
    • intermediate scrutiny. what it is, when applied, result in this case
    • dissent’s argument suggests you’d have to tests AMABs for physical prowess
    • judges shouldn’t run athlete-by-athlete assessments (counter: court is already doing a lot of science, e.g. West Virginia v. EPA)
  • counters
    • VMI
    • not impossible for judges to decide, since that was previous policy
    • how big does the subclass need to be?
    • rebut the stupid shotput argument. are we going to start interrogating every female that wins a competition?
  • from draft 1: law shouldn’t index on birth certificate sex
  • from draft 1: majority avoids pronouns; Thomas makes bigotry explicit