Common Sense Wins the Day in West Virginia v. B. P. J.

Common sense may be common to us all, but it doesn’t always win the day. Good for the Supreme Court for making sure it does in the recent decision of West Virginia v. B. P. J. 

West Virginia enacted a law in 2021 that school sports teams for the female sex would not admit the male sex—crucially, with sex being determined by biology. B. P. J. was a boy who identified as a girl and started socially transitioning while in third grade, adopting a new name. Puberty blockers then followed, with hormones starting in sixth grade.  

B. P. J. liked running. With the enactment of the West Virginia law, the school principal told B. P. J.’s mother that B. P. J. would not be allowed to run in the girls’ cross-country and track-and-field teams. B. P. J. sued the state officials and agencies, claiming violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment.

A consolidated case, Little v. Hecox, concerned Hecox, a man who identified as a woman. Unlike B. P. J., Hecox had undergone puberty before taking hormones. Like B. P. J., Hecox had sought to play on women’s sports teams, but faced a similar law in Idaho. Hecox sued Idaho’s state officials and agencies, claiming a violation of the Equal Protection Clause. The Court noted that in the last few years, twenty-seven states had enacted similar laws. 

The Supreme Court ruled 9­–0 that such a law did not violate Title IX, and 6–3 that it did not violate the Equal Protection Clause.  

Title IX  

Title IX was enacted to ensure that no one “on the basis of sex” would be discriminated against in any educational program receiving federal funds, with a subsequent amendment applying it to sports activities. In a passage that should gladden the heart of anyone for its common sense, the Court ruled that the term “sex” in Title IX “cannot plausibly be interpreted to refer to anything other than biological sex,” and that the “ordinary meaning” of the word was “biological sex and not gender identity.” 

Justice Brett Kavanaugh is known to have been a basketball coach himself. Writing for the majority, he said that in the world of sports, the physical differences between girls and boys, women and men, manifested in nothing less than matters of basic safety and fairness. These inherent physical differences between the two sexes are, inter alia, “height, weight, strength, speed, endurance, and jumping ability.” Future generations might wonder at such passages from the highest tribunal of the 250-year-old republic, begging the patience of the future reader—but such is our time. The Court explained that girls and women would face a higher risk of injury when playing against boys and men in the same space, especially in contact sports. 

Further, Justice Kavanaugh wrote, the world of sports was necessarily zero-sum. A biological boy who made it onto the team knocked out a girl who otherwise would have been there. A biological man with the gold medal on the podium, impossibly tall and towering over others, kicked down the woman who would have stood there instead, earned gold medal in hand. Sports declares winners and losers. In a world of gender-identity sports, girls lose. 

So there was no violation of Title IX, the law that was put in place precisely that girls would not be discriminated against on the basis of their sex, necessarily taking into account their bodies as who they were.  

Equal Protection 

As to the issue of the Equal Protection Clause, the Court applied a standard known as intermediate scrutiny for classifications based on sex, like the West Virginia and Idaho laws in question. A law survives intermediate scrutiny if it is “substantially related” to the state’s “important” governmental interest. The Court found that a state maintaining separate sports teams for girls and women based on biological sex met the standard, given the same safety and fairness analyses, and a second-order interest in ensuring that girls and women not be deterred from playing sports. So the Court found that there was no violation of the Equal Protection Clause, either. 

Pirates’ “Sex” Scandal 

But wait. Haven’t we been here before? Hasn’t the Court opined on what the word “sex” meant—and come out exactly on the opposite side of the road? Yes: and just six years ago, in Bostock v. Clayton County. In that case, Justice Neil Gorsuch, writing for the majority, said that the word “sex” meant … whatever anyone wanted it to mean. Gender identity, sexual orientation, transgender status? Sure. All of the above. What was more, Justice Samuel Alito wrote in his dissent, joined by Justice Clarence Thomas, that the Supreme Court did all this while “fl[ying] a textualist flag,” in the name of “the purest and highest form of textualism,” sailing the constitutional waters “like a pirate ship.” 

So how did the Court handle the piracy of Bostock in the present case, in which “sex” meant exactly sex and only sex? We read the Court saying that Bostock didn’t apply here because it was a Title VII case, not Title IX. That was an employment issue, not a sports and education one. That other statute said “because of … sex,” whereas here, we’ve got “on the basis of sex.” And, the Court added, we already said in Bostock that we “do not purport to address bathrooms, locker rooms, or anything else of the kind.” So, well, there. 

Whether that explanation will prove persuasive to future readers—or to the present reader, for that matter—is up for debate. But it seems the pirate ship ought to be dismantled and sunk in the face of the real ship. The Ship and The Not Ship cannot both be the real ship. Sex can’t mean “sex and only sex” but also “sex plus whatever the new thing says always.” They can’t both be true. 

Reason, Organ of Truth 

Be that as it may, we are grateful for the state of the law today with B. P. J. The Court additionally noted, perhaps with an eye to possible cases in the future, that a number of Supreme Court justices have gone on record that they thought classifications in law having to do with gender identity or transgender status would receive only rational basis review, which is a deferential standard that just about always results in the law’s being considered to pass constitutional review. It is also noteworthy that the majority did not use any pronouns for B. P. J. in the entirety of its opinion. What a contrast this is to the dissenting opinions by Justices Sonia Sotomayor and Ketanji Brown Jackson, where terms like “cisgender,” sex “assigned at birth,” and the pronouns adopted by B. P. J. were deployed liberally, betraying a certain anthropological assumption.  

St. Thomas Aquinas famously says that law is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” It is an ordinance of reason, thank God, not of the tyranny of my feelings or flights of fancy. Reason, in turn, C. S. Lewis says, “is the natural organ of truth.”  

Because human beings are endowed with reason by definition, truth is accessible, that is, commonly accessible, to all of us: ours to pursue, to contemplate, to know and love and dwell in. So we ought to take care not to play fast and loose with language, down to pronouns and categories, for all this is about nothing less than truth and reality. One then applauds Justice Thomas, who declared in his concurrence, “Sex is an immutable ‘biological’ characteristic; … it is binary; and ‘man’ and ‘woman,’ ‘boy’ and ‘girl,’ are the terms that correspond to adults and children of each sex.” Quoting Josef Pieper’s Abuse of Language—Abuse of Power, he further said, “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].’” Justice Thomas was, characteristically, bold and right. 

We would do well, all of us, to stop using the word “gender” to mean “sex.” (By contrast, “gender” is the right word in the narrow context of certain foreign languages’ grammatical rules, say, of declensions of gendered nouns and adjectives in Latin.) It would help our very confused world, one interlocutor at a time. Perhaps the next time the Supreme Court takes up a similar case, it will be able to say simply “sex” for the redundant “biological sex,” the latter of which it had to say quite a lot in B. P. J. But such is our time.  

For the Little Crosses 

Justice Kavanaugh was extra solicitous in his opinion to emphasize that no transgender student-athlete deserved any ostracism or vilification. (To be sure, he said as much for girls as well.) Perhaps he had in mind B. P. J.’s arguments. Heather Jackson, self-professed “fierce” mother of B. P. J., said on Lambda Legal, “The overt hate that has become so normalized in our society is hurting all of our children, but it is directed most often and most viciously at our LGBTQ+ kids.”  

Certainly Justice Kavanaugh is right that no one should be abused. The following goes unreported in the Supreme Court opinion, but here was Adaleia Cross, a young girl who had to play sports with B. P. J. in their West Virginia school. Adaleia lost out on sports opportunities and rankings against B. P. J. But then she also had to endure B. P. J.’s telling her off repeatedly in the shared locker room, on the track, and elsewhere with vile and violent sexual language too profane for this publication. 

Ah, but B. P. J. was the one suing? 

West Virginia v. B. P. J. did not prescribe that states limit girls’ and women’s sports to the female sex. It merely held that states that did draw that line did not run afoul of Title IX and the Equal Protection Clause. For now, though, for girls like Adaleia Cross and for all friends of reason and common sense, the Supreme Court’s decision to call a spade a spade and sex sex is most welcome. 

Image licensed via Adobe Stock.