By Mathew Goldstein
In the recent case WEST VIRGINIA ET AL. v. B. P. J., BY HER NEXT FRIEND AND MOTHER, HEATHER JACKSON I have read the dissents by Justices Sotomayor and Jackson and I agreed with their dissents, see https://www.supremecourt.gov/opinions/25pdf/24-43_2b35.pdf. They both agreed that the majority is correct to conclude that the Javits Amendment and resulting regulations permit biological sex discrimination of this sort in a sports competition context under TITLE IX. However, they argue that the majority was wrong to assert that the term “sex” in Title IX “cannot plausibly be interpreted to refer to anything other than biological sex.” The minority opinion also complained that there are relevant unresolved factual issues that should be considered before reaching a decision in this particular case. The dissenters emphasize that there are relevant factual issues that have not yet been litigated which renders reaching a final decision at this time inappropriately premature. The biological male who was prevented by state law from participating on the public school woman’s sport team, and on whose behalf this lawsuit was filed, takes male puberty blockers. It is not entirely clear to what extent the participation of a biological male who never underwent male puberty in female sports would be unfair to biological females.
This is similar to my concern with a proposed state law in my state to ban biological males from participating in female sports that was introduced early this year. It did not address the potential edge contexts. Context matters here, which introduces a complexity that activists on both sides of this controversy tend to dismiss. Furthermore, the controversy does not begin with biological males participating in female sports competitions, it also encompasses the question of whether puberty blockers (and other such medical interventions) should be used on minors to treat gender dysphoria. The currently available evidence relevant to evaluating whether the benefits of such treatments for minors outweighs the costs (including the potential costs of long term use of puberty blockers to prevent puberty) is incomplete and weak. The dissenting Justices failed to mention this particular detail in their written dissents even though it supports their overall argument that the case should have been returned to the lower courts with instruction to deliberate the relevant facts. Maybe the dissenters omitted this detail because they are liberals and this particular concern tends to be associated with conservatives? I hope that is not the reason for this omission. Our ability to make rational, evidence based decisions is undermined by over-politicization, by excessive partisanship, by the insidious grip of circular ideological frameworks.
If the Supreme Court ruled that states could not ban biological males from female sports then that would impose a significant constraint on state laws. Accordingly, such an outcome in favor of the plaintiff was always very unlikely. Given the overall direction of the substantial available evidence justifying biological sex based segregation in the sports competition context, any federal constraint on state laws that undermines such segregation, to maintain a fair balance between the interests of biological females and transgender women, would need to be tailored to limit its applicability. That introduces a substantial decision making complexity. It would be difficult for the Supreme Court to draw such lines given all of the technical uncertainties and ambiguities inherent in evaluating how the various medical interventions interact with the various biological mechanisms that potentially changes the various relevant sports competition outcomes for various different sports. Most people with disorders of sexual development are either biological males or females, some are not, all of which introduces additional complications. So it is reasonable for the federal government to step aside and leave it to the states to decide how to deal with this and maybe revisit this controversy again some time in the future.
The majority decision bypasses the complexities by placing no restrictions on the states. They claim these complexities are too formidable for SCOTUS to tackle. In contrast, the dissenters want to ensure that transgender youth are granted equal protection rights which requires the federal government to place some restrictions on state laws. Equal protection is too important a goal for SCOTUS to disregard. Yet they recognize that they are currently unable to do that because they lack the factual foundation for deciding what limits on state authority will strike the needed balance between the potentially conflicting equal protection rights of the biological females and transgender girls.
Unfortunately this decision went further than it needed to, and should have, by restricting the applicability of the anti-discrimination provisions of Title IX to biological sex. Critics of this decision are correct to be concerned that there is a tendency of various recent Supreme Court decisions, including this one, to erode basic civil rights protections for various minorities. Various secularists groups, such as AA, FFRF, AHA, etc., expressed opinions against this decision that could be described as strident. While I share some of their concerns, I have opinions that are somewhat less strident, which motivates me to write this commentary.
When adults medically transition themselves away from their biological sex (biological sex is both permanent and binary) they thereby do no harm to anyone else. They thereby newly re-represent themselves as a woman, or as a man, and accordingly, for most contexts, that is what they are. It should be no surprise that now that there is an option to medically transition some people opt to do so. It seems reasonable to me that a subset of the people who have a same sex orientation for romantic partners will want to medically transition to better match their sexual orientation, in addition to some of the people with gender dysphoria.
Yet there are a few contexts where biological sex still retains some significance. In other words, most trans men are biological females while most trans women are biological males and therefore they are not identical to men who are biological males or to women who are biological females. This is a meaningful difference. I think this should be obvious, yet there are people who reject this, which is unfortunate. Some people very skeptically declare that there is no such thing as gender dysphoria, other people very non-skeptically declare all minors in distress who claim to be transgender should be automatically deemed to actually have gender dysphoria. Both claims appear to me to be difficult to reconcile with the available evidence to the contrary.
