The U.S. Supreme Court issued a monumental ruling last week protecting the sanctity of women’s sports from trans-identifying men. That decision, however, left open a loophole exploited by pro-trans activists in their lawfare against policies recognizing biological reality.
In West Virginia v. B.P.J. and Little v. Hecox, the high court upheld (6-3) laws passed by Idaho and West Virginia ensuring women’s sports are reserved for female athletes. Writing for the majority, Justice Brett Kavanaugh ruled that the statutes do not violate the 14th Amendment’s equal protection clause or, in the B.P.J. case, Title IX.
“Consistent with Title IX and the Equal Protection Clause, we hold that the States may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex. The Constitution and Title IX do not require an overhaul of women’s and girls’ sports throughout America,” Kavanaugh wrote.
The women’s sports decision builds upon the great work the court did last term when it upheld state laws barring harmful “trans” procedures from being conducted on minors. In that case (U.S. v. Skrmetti), the same 6-3 majority ruled that those statutes do not violate the 14th Amendment’s equal protection clause.
But much like in Skrmetti, the B.P.J. majority opinion left a major question unresolved. That is, whether transgender qualifies as a suspect or quasi-suspect class.
As described by Cornell Law School, “Suspect classification refers to a class of individuals who have been historically subject to discrimination” within the law. One of the more prominent examples of suspect class is race.
When a government law or policy is tailored toward a specific suspect or quasi-suspect class, courts handling litigation over the matter will place that law or policy under strict or intermediate scrutiny (aka a heightened standard of review to determine its legality). In the case of strict scrutiny, the onus falls on the government to demonstrate that its policy satisfies “a compelling government interest” and is “narrowly tailored to satisfy that interest.”
As The Federalist previously reported, left-wing attorneys representing trans-identifying clients have argued in their lawfare against policies recognizing biological reality that transgender is a suspect or quasi-suspect class. The goal in doing so, it seems, is to increase the potential for courts to deem these commonsense policies as unlawful and advance the left’s radical “trans” agenda throughout America’s legal system.
In last week’s women’s sports ruling, Kavanaugh acknowledged challengers’ “unavailing” argument that the Idaho and West Virginia laws “unconstitutionally discriminate against transgender individuals.”
He first noted how the laws “do not classify based on transgender status” but on biological sex. Even if the laws “made a transgender or gender identity classification,” he added, “this Court ‘has not previously held’ that intermediate or other heightened scrutiny applies to a transgender or gender-identity classification.”
Kavanaugh subsequently recognized two Skrmetti concurring opinions by Justices Samuel Alito and Amy Coney Barrett (joined by Justice Clarence Thomas). The three justices collectively argued that transgender status does not warrant heightened scrutiny and that courts should use rational basis review (a less stringent test than strict or immediate scrutiny) when considering such cases.
Rather than finally address the transgender classification question in B.P.J., however, the majority once again punted on the issue. “In these cases,” Kavanaugh wrote, “we need not definitively resolve whether rational basis review or intermediate scrutiny applies to transgender classifications.”
The decision to forgo providing a decisive answer on the matter did not go unnoticed by Thomas. The Bush 41 appointee authored a concurrence quoting from Alito’s and Barrett’s Skrmetti opinions to once again argue that “transgender status is not a suspect class requiring heightened equal-protection scrutiny.”
“The class of people who claim transgender status could more accurately be described as people who are experiencing ‘gender dysphoria,’ which is not a ‘discrete group,'” Thomas wrote. “Because ‘gender dysphoria’ is a mutable mental state that is the object of psychiatric treatment, it does not resemble the immutable characteristics on the basis of which our precedents have applied heightened scrutiny — race, sex, or national origin. Instead, gender dysphoria resembles other characteristics on the basis of which legislatures may classify with a merely rational basis.”
“Legislatures have many obvious rational bases to keep men who believe that they are women out of teams and private spaces reserved for women,” he added.
When asked during a recent Federalist Society forum on the B.P.J. ruling, Ethics and Public Policy Center fellow Rachel Morrison expressed skepticism about whether the court will be asked to directly address the transgender classification question in upcoming litigation. She pointed out how many of the contested laws thus far (such as those in B.P.J. and Hecox) have made distinctions based on sex and not transgender status.
“We don’t see an exclusion of like, ‘No one who identifies as transgender can participate at all.’ … There’s a male team and a female team and then, whether you’re male or female, that’s the team you have to be on. And then the [pro-trans] folks [are] trying to say that that’s gender identity discrimination or transgender status discrimination,” Morrison said. “So, I’m not actually sure … if we will see that issue because I don’t see … overt exclusions … or classifications based on transgender or gender identity.”
Whether a majority of SCOTUS justices ultimately say transgender is not a suspect class remains to be seen. What is certain, however, is the longer they kick the can down the road, the longer “trans” activists will keep making the argument in court in their attempt to hinder laws recognizing biological reality.
