The Supreme Court affirms biology and sanity

Over the last several years, sports for girls and women have been ground zero for conflict about gender identity. Men and boys who identify as women have shown up in female sports and demanded places on female teams. And many women have pushed back: Biological males have biological advantages, no matter their professed gender identity. On average, biological males are stronger and faster. Biological females competing against them are at a disadvantage competitively and at a higher risk of suffering injury. Yet LGBTQ activists said that it was discriminatory to exclude from women’s sports someone who self-identified as a woman or girl, regardless of birth sex.

Into this controversy, schools and states had to choose what to do. Several states, including Idaho and West Virginia, enacted laws to clarify that children playing sports at school would play according to their biological sex. LGBTQ activists brought lawsuits against these states, arguing that these laws violated both the Constitution’s Equal Protection Clause and Title IX of the federal Civil Rights Act, which governs nondiscrimination in educational institutions.

In a much-anticipated decision issued Tuesday, the Supreme Court upheld these state laws against the LGBTQ ideological claims.

The Supreme Court’s decision was important, and here are three important takeaways.

First, and most basic, the Supreme Court’s decision allows states and the federal government to set policies in this controversial area. The LGBTQ activists’ theory would have used the Constitution and federal statutes to mandate inclusion of men in women’s sports. But as the Supreme Court majority opinion by Justice Brett Kavanaugh points out, there are lots of reasons to think that there are serious problems that would come with the allowing biological men into women’s sports. The theory underlying the challengers’ case was that personal choice and self-identification are what matter in the area of sex and gender identity. That, of course, is why sports for girls and women has become such a flashpoint in the broader controversies around sex and gender identity. It is in women’s sports that it is particularly obvious that biological realities matter immensely and cannot be erased simply by one’s self-identification.

If the Court had gone the other way, if it had held that the gender identity personally chosen by any student athlete was the controlling consideration, then sports for girls and women would have been transformed. There would have been obvious risks of boys and men gaming the system. But even absent such strategic behavior, the upshot would still have been dramatic disadvantages for women and girls.

Second, the Court resisted the more subtle invitation to make constitutional scrutiny overly individualized. The trans activists had argued that the students in Idaho and West Virginia should have a chance to prove that they had comparable skill levels or abilities in sports to the biological girls alongside whom they would be playing. But the Supreme Court majority correctly recognized that this is an area where there are real-life, generalizable differences between men and women, and that it was permissible to regulate on a class-wide basis.

This is a general principle of the law: The law often has to choose cutoffs and regulate through generalities. Think of a classic example commonly given to law students in a very different context: the minimum age for driving. We could determine driving age on an individual-by-individual basis, with the Department of Motor Vehicles evaluating whether someone has the skills, knowledge, maturity, and trustworthiness to drive at whichever age they applied. Some precocious children might be safe drivers at age 13. Others would be better off if they waited until they were in their 20s, when brain development was considerably further along.

We don’t do it that way because it is too difficult to have people evaluated individually, case by case. So we use generalizations, and we say that 16 is the cutoff in most states. Is that perfect? No. But it is close enough.

The same principle applies in sports. Most men are physically stronger than most women. The most athletically talented woman might be stronger or faster than some men. But the way we organize sports, and the policies that we set at the national and state level about how sports will work in schools, are based on biological differences and generalize about men and women. We do not require that a soccer team compare each individual child and then say, “This girl is the fastest girl here. In fact, she is comparable to the median boy on the high school soccer team, so she should be on the boys’ team.”

This was one of the theories that the trans activists suggested to the Court. It was more subtle, apparently less expansive. But it would have been a major change to the way constitutional scrutiny works. The Supreme Court appropriately rejected that argument.

Finally, the Supreme Court had before it the question of who is a girl or woman under federal statutory law. In a culture where this is often contested and confused, it could not be taken for granted that the Supreme Court would actually answer the question. But it did. Sex is biological sex. A girl is a biological female under Title IX. Title IX prohibits discrimination on the basis of sex, and biological sex is not a subjective, personal category. To some onlookers, this may be so obvious as not to catch one’s attention immediately. To critics, this may be the basis for accusing the Supreme Court of old-fashioned traditionalist views. For a Christian who believes that there is an objective created order in the world, it is a fact worthy of commendation.

Our culture has been confused about the nature of sex and gender. No single court decision will resolve the issue. But a court could confuse the issue further. With this case, the Court did not confuse the issue. Instead, the Court majority left space for discussion, persuasion, and debate. And it recognized that, for purposes of federal law, we can know who is a girl.