SCOTUS knows a sex category when it sees one (or two)

Men and women are different. Sports are different. SCOTUS delivers a well-reasoned ruling on an obvious question.

I’ve read more court decisions over the last three years than I ever thought I would when I dropped out of law school over a decade ago. Among the stylistic features I’ve noticed in judges’ writing is that they rarely repeat themselves: not for effect, not for emphasis, not out of carelessness.

Justice Kavanagh, writing the Supreme Court’s decision in West Virginia v. B.P.J., breaks that norm—repeatedly, I might add. He does so not to “pound the law” or “pound the facts,” as the old adage goes, but to pound common sense, perhaps back into our country’s social psyche.

Kavanagh thrice describes sports as “zero sum.” Only once does he explain that term with reference to the outcome of a sporting event (maybe he knew the decision would be released during the World Cup, so wanted to leave breathing room for draws). In all three instances, he talks about the effect that one male would have on any one—and therefore, all—of the girls or women on a female team.

“Allowing a biological male athlete to compete on a girls’ team necessarily displaces or disadvantages a female athlete—replacing her on the roster, knocking her out of the starting lineup, reducing her playing time, depriving her of a medal, and the like.”

One more time, with feeling…

“Every biological male who makes the team takes a roster spot from a female athlete. Every biological male who earns playing time reduces the playing time of a female athlete. Every biological male who starts takes a starting position from a female athlete. Every biological male who wins a race takes the gold medal away from a female athlete.”

And for the dissenters in the back…

“Every athlete who makes a team takes a roster spot from another athlete. Every player who earns playing time reduces the playing time of a teammate. Every player who makes the starting lineup sidelines another who remains on the bench. Every competitor who wins a race or competition deprives another athlete of that victory, or medal, or prize. Every team that wins because of an added player means that another team has lost because of that added player. Every player who makes all-conference beats out another player who does not. Every student who earns an athletic scholarship takes that opportunity away from another student.”

I’m not saying he read my “blast radius” article, but he might as well have. And furthering the point, last month, while the case was pending, plaintiff Beckie Pepper-Jackson competed in two events at the West Virginia state track meet. He placed third in discus, knocking one girl off the podium and all but two others down a spot (along with their teams, which lost those points).

Kavanagh also pounds home the irreducibility and immutability of sex categories.

Justice Sotomayor’s dissent to the Equal Protection Clause argument attempts to dismiss the “zero sum” argument, before reluctantly agreeing that, well, yeah, it’s a thing.

Sotomayor notes that the plaintiff B.P.J. was trying out for a middle school cross country that, like many others, did not cut any prospective athletes. The roster, and therefore the opportunities, were not “zero sum” because nobody would be left out.

But as Justice Kavanagh points out in the first two quotes above, and then responded to his colleague’s dissent in the third quote, participation is only one aspect of what makes sport zero sum. B.P.J. may not displace any girls from the team’s roster, but he would displace girls at the team’s first meet. His presence on the team might also deter other girls from trying out for or competing on the team, or similarly deter or discourage opponents. Kavanagh addresses that, too, calling it a “second-order effect.”

Justice Sotomayor concludes her dissent by writing “Sports, of course, are often zero sum, but the law need not and should not be.”

However, Justice Kavanagh goes to great lengths to show why—particularly and maybe uniquely in sports—the law must be.

“Sports are different from, say, a typical employment or educational opportunity where equal protection often may require that the government generally treat an individual without regard to the individual’s sex.”

Early in the decision, Kavanagh references the “enduring” “[p]hysical differences between men and women… [which] include, among other things, height, weight, strength, speed, endurance, and jumping ability.”

He comes back to this several times, most importantly when he addresses the plaintiff’s “as applied” challenge to the equal protection elements. Kavanagh explains this as their concession that the “sex-based classification is generally permissible—but not as applied to those biological males such as B. P. J. and Hecox who identify as female and have taken puberty blockers or hormones.”

Kavanagh recognizes that there are neither guiding nor limiting principles for granting such exceptions. As such, there is no coherent and consistent basis in sport, physiology, or law for anything other than sex-defined categories.

“Individuals come in all shapes and sizes, with different height, weight, muscle mass, heart capacity, lung capacity, strength, speed, endurance, jumping ability, and so on.”

Any attempt at drawing a non-sex-defined line becomes an “almost impossible task” when you try to account for the “effects of the puberty blockers and hormones taken by transgender athletes—and then comparing each of those transgender athletes’ abilities to those of other individual biological males and individual biological females in the relevant sport.”

I’m also not saying he read my “sexclusive” categories article, but he might as well have done that, too.

“We need not belabor the point,” Justice Kavanagh writes. But he knows that we have to: otherwise he wouldn’t be writing a Supreme Court decision on this question.

Perhaps my biggest quibble with the Court’s ruling is when they address the plaintiff’s premise “that at least some biological males who identify as female and take puberty blockers or hormones do not retain physical advantages over biological females.” This, according to the Court, “is the subject of ongoing medical and scientific debate and is not settled in their direction at this time.”

That’s probably an act of collegial generosity, extending a hand to those justices who might have been unhappy about the fact that they couldn’t find a way around the Title IX arguments, and therefore ruled 9–0 on those and consoled themselves with the opportunity to dissent on equal protection grounds.

But that statement gives too much credibility to that ongoing “debate.” And while recognizing in beautiful understatement that the issue “is not settled in their direction,” it unnecessarily leaves open the door to (a) the near-impossibility that the weight of evidence may settle out in the other direction, and more importantly, (b) that it would matter to sex-defined categories. Because even if there was a medical regimen that could completely eliminate male advantage, it wouldn’t change the fundamental basis of the categories that the Court upholds: sex.

Fortunately, this sets the stage for Coach Kavanagh to take over Justice Kavanagh’s pen:

“Women and girls who play sports care deeply about all of those things. They obsess about them. They spend extraordinary time and effort to train in the heat and in the cold, to work out early in the morning and late at night, to get a little faster, to become a little stronger, to jump a little higher, to shoot a little better, to watch a little more video, to make the lonely journey back from an ACL tear, to scrap for playing time, to start, to win the game, to win a championship, to hang a banner, to bring home a medal, to be all-tournament, all-county, all-State, or all-American.

“They put a championship trophy or all-league award on their bedroom shelf—and it stays there forever as a reminder of their love of the game and pride in their achievements. They learn to endure losses with grace, to lift up their teammates, and to respect opponents who have beaten them fairly and squarely. They learn to win with class—to look a defeated opponent in the eye, shake her hand, and congratulate her on her effort.

“Whether the star of the team or the last player on the bench, they form lifelong friendships and lifetime memories.

“They savor their athletic accomplishments and cherish them for years, even decades, after their playing days are over.”

All of that. Every day. Not “into my veins,” because it already courses through. That’s why I’m here, as I approach the third anniversary of The Game that Changed Everything (not saying Kavanagh read that one, either).

Males and females are different. Sports are different. But men’s sports and women’s sports are equally valuable and worthy of protection, and the only way to protect them is through sex-defined categories.

Ultimately, the most lamentable thing about this decision is that it was necessary.

Photo credit: Matt Wade / Flickr, under CC BY-SA 2.0.