A league of their own

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MYRNA BROWN, HOST: It’s Thursday, the 2nd of July. Glad to have you along for today’s edition of The World and Everything in It. 

Good morning, I’m Myrna Brown.

MARY REICHARD, HOST: And I’m Mary Reichard.

First up: The Supreme Court’s opinion on men in women’s sports. It’s an older controversy than you may know. 

Here’s WORLD legal correspondent Jenny Rough.

JENNY ROUGH: One summer, a lifelong tennis player with the name Renee Richards applied to compete in the U.S. Open tennis championship. Richards was good enough to qualify, but the USTA (United States Tennis Association) required a Barr body test, a mouth swab to confirm a player’s genetic sex. 

Richards refused. Turns out, Renee Richards was previously Richard Raskind.

JULIE KLIEGMAN: So Renee Richards is a transgender woman who successfully sued for her right to compete in the U.S. Open alongside other women.

Julie Kliegman has written a book about Richards, out this summer.

Richards’ lawsuit, filed in New York state court, alleged the USTA’s rule violated state human rights laws and the U.S Constitution’s 14th Amendment, the equal protection clause.

The case made national news...almost 50 years ago.

KLIEGMAN: So this is much earlier, 1977, than people typically expect that conversations around transgender athletes, particularly at a high level, started. And, you know, that the legal questions surrounding this were being addressed … 50 years ago.

Richards won and was able to play in the U.S. Open against women.

This summer, the issue of men in women’s sports is in court again at the United States Supreme Court. 

There were two companion cases: One from West Virginia, the other from Idaho.

West Virginia vs BPJ involves a state law banning males from women’s sports teams. BPJ socially transitioned in third grade, took puberty blockers, and then tried to join girls’ teams. His lawsuit claims the ban violated Title IX and the equal protection clause of the Constitution.

Idaho has a similar law. In Little vs Hecox, Lindsay Hecox is a male who went through puberty and took female hormones in college. Hecox tried to join the college women’s teams and claimed the law violated the equal protection clause.

When Justice Clarence Thomas questioned Idaho’s attorney in oral arguments in January, for a split-second I actually thought he was going to mention Richards’ 1977 case.

JUSTICE CLARENCE THOMAS: Let’s take, for example, an individual male … say, a lousy tennis player … and wants to try out for the women’s tennis team .

I was wrong. Thomas simply used that hypothetical to ask about Title IX. That federal law prohibits discrimination based on sex in the education context.

WILLIAM WAGNER: Eventually, when it was amended to include sports, it was in the athletic context.

William Wagner is a constitutional law scholar of the Faith and Freedom Center in Michigan.

The other law at play, the equal protection clause, requires the government to treat similarly situated people in the same manner under the laws. But that does not mean an equal outcome.

WAGNER: I don’t get to play professional basketball and start for the Detroit Pistons just because I want to. And say, "Hey, you’re starting all these young, tall guys. …What about us old, short guys? Don't I get to play basketball too? You're violating equal protection laws." No, No, that’s not what the Equal Protection Clause protects.

Wagner filed friend of the court briefs in the cases. He cited a study that set forth empirical data showing biological differences are relevant to safe and fair competition in athletics.

Macy Charles knows this from personal experience. Charles is a volleyball player who had to compete against a man on a women’s team during her college recruitment process. She says the sport of volleyball is different for men and women, in addition to the players.

CHARLES: Women’s volleyball, there’s lots of strategy and placement. Trying to, you know, catch your opponent off-guard. Men’s volleyball, it’s all force. But it is very, very dangerous to compete against a man because the ball is coming at your face. … How a man’s body is structured differently. His hormones are different. His bone density is different. His muscle capacity is different. All of these things. 

Today, Charles lives in Arizona. On Monday, it became clear the court would issue its opinion in these cases on Tuesday.

CHARLES: I was standing there with my husband and I was like, “The decision is coming out tomorrow.” And he looks at me and he’s like, “Go pack your bags!”

Yesterday morning, she stood outside the Supreme Court, praying with her colleagues from Concerned Women for America. She refreshed the Supreme Court’s webpage on her phone over and over until the decision finally popped up.

CHARLES: I scroll to the holding clause and read those beautiful words, especially the ones where it says, “consistent with Title IX.” Ah, it’s like music to my ears. … It was such an incredible moment. We all cheered and hugged.

One consolidated opinion, two legal questions decided separately. Same conclusion: States can pass laws that ban biological males who identify as females from playing on girls and women’s sports teams.

Justice Brett Kavanaugh wrote the majority opinion and he began with some sports stats. Prior to Title IX in 1972, about 300,000 high school girls played sports. Today, the number of women athletes has grown more than ten times.

The court held that the term “sex” in Title IX means biological sex. Here’s Wagner on the legal importance of that:

WAGNER: There was a deeper question that goes beyond athletics, goes beyond sports, and that was whether the law must conform itself to objective reality, or whether objective reality must yield to somebody’s subjective personal identity. And the Court says, Reality matters. Truth matters. … This case was about whether the rule of law remains anchored in objective truth.

The legal analysis for the equal protection clause question calls for a test known as intermediate scrutiny. As long as the sex-based classifications are substantially related to an important government objective, the laws can stand. And the Court held that safety and fairness are important government interests.

Back in 1979, Renee Richards was playing in the U.S. Open 35-and-over championship match and beat Nancy Richey pretty handily. 

Biographer Kliegman on Richards’ shift in mindset that day:

KLIEGMAN: She had a feeling that it wasn’t right, and she felt there was still an advantage to her being trans despite her years of undergoing hormone therapy.

Richards is 91 today … and though we didn’t talk online, Kliegman passed along an email from Richards to me. It said: Before puberty, or during puberty blocking, transgender kids should be allowed to compete. … But not after.

That view aligns with Justice Sonia Sotomayor, who dissented on the question of equal protection, along with Justices Elena Kagan and Ketanji Brown Jackson. She would have sent the case back to lower court to evaluate the evidence about players who do not experience male puberty.

Justice Kavanaugh, who coached girls’ basketball before being elevated to the court, wrote about the nature and reality of sports. Quote: “Women and girls who play sports care deeply. They … train in the heat and the cold … work out early in the morning and late at night … learn to endure loss with grace … and win with class.”

CHARLES: I feel that so deeply and emotionally. …

Macy Charles again:

CHARLES: I would just spend hours outside learning how to overhand serve. … I had to … do all kinds of speed training, try to increase my vertical another inch, like anything I could possibly do. … And then I finally get the chance to show that off to a college scout and there’s a boy on the other side of the court. … It just destroyed all of these things that I had dreamed of and worked so hard for.

She’s happy the court recognized that, adding: "Every human is worthy of government protection and utmost dignity. But sex matters. Women matter. The way God created us matters."

Reporting for WORLD, I’m Jenny Rough.

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