Editors at National Review Online ponder one of the US Supreme Court’s latest high-profile cases.
In a properly functioning constitutional republic, the Supreme Court’s job is reading legal texts; matters of elementary common sense are left to the people and their representatives. But our era’s cultural complaints sometimes require the justices to turn their attention from law to the difference between fiction and reality.
So it was with Tuesday’s oral arguments in two cases challenging West Virginia and Idaho laws that limit participation in girls’ and women’s sports to — brace yourself for this one — girls and women. …
… The plaintiffs in West Virginia v. B.P.J. and Little v. Hecox would prefer to argue that it is invidious discrimination against transgender people to not let them unilaterally redefine their sex. But the current Court has little appetite for creating a new constitutional “suspect class,” so the ACLU lawyer arguing the case has to engage in some definitional legerdemain to argue that banning males from female sports is, at least in some cases, impermissible sex discrimination under the equal protection clause and under Title IX of the Civil Rights Act. That was good enough for the Fourth and Ninth Circuits, to their shame.
The very existence of female-only sports that exclude males is sex discrimination. That’s the entire point. Yet, the Court’s precedents have long allowed sex discrimination that is based upon real, biological sex differences. In competitive sports, those are glaringly obvious and have real consequences not only for who wins but also for the safety of female athletes. That’s why most of these cases involve males trying to play with the females, rather than the other way around. Males who identify as female can still play sports — just not as females. The stubborn reality of biology is why the Court applies a more lenient test (“intermediate” scrutiny) than it does when assessing race discrimination, which is presumed to be irrational and thus can be justified only by the most compelling interests and applied only in the most narrowly tailored settings.
