Almost every lawyer who goes before the Supreme Court has at least one sizable hole in their argument. After all, if the questions were clear-cut, the case would have been resolved in the lower courts. But there are holes, and then there are holes.
In the transgender sports cases heard at the Supreme Court on Tuesday, attorneys for the trans athletes spent much of their time trying to skirt a sinkhole the size of Atlanta. The court was weighing whether laws in two states banning trans athletes from competing in women’s sports violates their civil rights.
“For equal protection purposes,” Justice Samuel Alito asked Kathleen Hartnett, the attorney representing a Boise State University cross-country runner, “what does it mean to be a boy or a girl or a man or a woman?”
“We do not have a definition for the court,” Hartnett said.
It was a moment made for social media, and it attracted immediate ridicule. But it was only one of several such exchanges, none of which helped the trans inclusion cause. As Alito asked in his follow-up, “How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?”
Excellent question! And one that trans rights activists have avoided for years.
Consider the Lambda Legal conversation guide released before oral arguments. It suggests that people respond to reasonable questions such as “How can it be fair (or safe) for a girl to compete against a boy?” with psychotherapy prompts such as “What do you think matters most in sports?” or “Have you ever been left out just because of who you are?” This exercise in evasion is political and legal malpractice.
A forthright argument is the better tactic. Same-sex marriage advocates won by convincing the public of three propositions: That gay people were born that way, not making a “lifestyle choice”; that excluding them from marriage was therefore unfair; and that giving gay people the same marriage rights as everyone else was good for them and didn’t hurt anyone else.
A parallel process for trans inclusion in sports would have consisted of convincing people either that women’s sports reflect a social distinction, not a biological one; that trans inclusion takes precedence over creating a level playing field for biological females; or that trans women are biologically indistinguishable from cisgender women. All were tried. None worked.
The public was not receptive to the idea that females should step back and give males more opportunities to win athletic competitions. As more trans women competed and won in women’s sports, it became harder to argue that there was no residual advantage.
The fallback strategy was to suggest that it’s naive to think in terms of biological binaries. Sex is a social construct, a spectrum, an incomprehensible mystery, like the inner workings of the Holy Trinity. Like all sacred mysteries, it is knowable not by any outward signs, but by inward revelation, and a person’s testimony to their own gnostic experience must be taken on faith by the rest of us.
The most obvious problem with this argument is that it’s not so much an argument for trans inclusion as it is for abolishing women’s sports. What is the point of having a competition that excludes cisgender men but puts Lia Thomas, a transgender woman, and Iszac Henig, a transgender man, in the pool with cisgender women?
The law requires clear definitions, not ecstatic invocations of the infinite complexity of human experience. For most normal people, asking whether we can even know what a woman is doesn’t make you look wise and compassionate; it makes you look crazy. No wonder Republican senators keep asking progressives at hearings some version of this question: “What is a woman?”
None found a good answer, which could not be evaded by dressing a senator down for transphobia, nor by challenging the premise of the question, nor by pleading ignorance. “I’m not a biologist,” Ketanji Brown Jackson said during her confirmation hearing for the Supreme Court. Afraid to suggest that biology might matter more than gender identity, not quite brave enough to assert the opposite, they instead made themselves look foolish. As did writers and scientists who started insisting that even the idea of two sexes was simplistic and unscientific.
This worked among college-educated elites, bolstered by the fear of being called a bigot. But tragically, the more trans rights advanced, the more popular support retreated. A clean compromise was available, similar to the compromise we made on women’s sports: treat males and females as interchangeable in contexts where biology is irrelevant or minor, while reserving segregated spaces for contexts where it is not. Advocates rejected that compromise in favor of an insistence that gender identity always trumps biology. The risk of all-or-nothing arguments is that they often end with nothing.
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