Steve Marshall, a Republican, is attorney general of Alabama. He led a coalition of states in filing amicus briefs in support of Idaho and West Virginia in the Supreme Court cases Little v. Hecox and West Virginia v. B.P.J.
Twenty-nine states restrict participation in girls’ sports to biological females. Next week, the Supreme Court will consider whether two of those states, Idaho and West Virginia, violated Title IX and the equal protection clause of the 14th Amendment by not allowing biological males who self-identify as females to compete in girls’ track-and-field and cross-country.
The court seems likely to uphold the restrictions. But how it does so will be as important as the specific judgment it issues.
The cases were advanced by the American Civil Liberties Union, and it marks the second time in as many years that the organization has asked the high court to hold that the Constitution affords special protection to “transgender status.” Last term, the court upheld a Tennessee law that imposed age restrictions on sex-change medical procedures. Because the law discriminated based on age alone, however, the court did not address the issue of “transgender status.” Only Justices Samuel A. Alito Jr. and Amy Coney Barrett (joined by Justice Clarence Thomas) wrote separately to explain why transgender status is not a “suspect” class subject to extra legal safeguards.
The sports laws now at issue do not discriminate based on transgender status either. They allow any biological female — transgender-identifying or not — to compete on girls’ sports teams, and they prevent any biological male — transgender-identifying or not — from doing the same. That makes sense because it is the differences in biology, not gender identity, that call for separate teams in the first place: Males are, on average, stronger and faster than females.
Still, the court should not punt again. It’s time to put to rest the claim that the Constitution affords transgender status special protection. When lower courts deem transgender status to be a suspect classification, the challenged law must survive “heightened scrutiny.” This is a legal standard that requires the government to show that the law serves an important public interest and is substantially related to serving that interest.
That description makes heightened scrutiny sound easy for courts to apply and school districts to survive. It is not.
In reality, passing the test of heightened scrutiny means that schools with girls-only sports teams must use their limited funds to hire biologists and endocrinologists to defend their line drawing. It also lets courts strike down common-sense policies by theorizing that the school could have used pubertal-development and testosterone testing to allow some males to compete in girls’ sports — and to impose damages and attorney’s fees if the school arrives at the wrong blend as determined by the judge-turned-sports commissioner. School districts can be forgiven for concluding that such a review is “heightened” beyond reach.
And this decision would have far-reaching implications outside of sports. Women-only changing rooms and showers? Driver’s licenses with only two sex designations? Insurance coverage that distinguishes between reparative surgeries for women and sex-change operations for men? All, according to the ACLU’s theory, should be subject to heightened scrutiny as policies that purportedly discriminate based on transgender status.
Like many states, Alabama has had to litigate these issues for years. In 2018, the ACLU challenged our driver’s license policy, and we spent the next six years litigating the case before we finally won. A challenge to our law restricting sex-change procedures for minors went through three years of extensive, and costly, discovery and other proceedings before being dismissed by the plaintiffs in May.
Part of the difficulty is that the root of the ACLU’s theory is a radical claim about human nature. In legal briefs, the ACLU scarcely defines the term “transgender,” offering only that it means a person has a “gender identity that does not align” with one’s “sex assigned at birth.”
But according to the World Professional Association for Transgender Health, recent studies suggest that “roughly 25% to over 50% of the larger transgender population” identifies as “nonbinary” — individuals “whose genders are comprised of more than one gender identity simultaneously or at different times (e.g., bigender), who do not have a gender identity or have a neutral gender identity (e.g., agender or neutrois), have gender identities that encompass or blend elements of other genders (e.g., polygender, demiboy, demigirl), and/or who have a gender that changes over time (e.g., genderfluid).”
That it is impossible to assign sports teams or bathrooms based on such nebulous conceptions is perhaps the point. Under this view, there is no such thing as male or female, only the psychology of feeling male or female — or both or neither or a fluctuation of some of each. That may make for an interesting college course, but it has nothing to do with the Constitution. The Supreme Court should finally say so.
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