Muse

Argument next in case 2443, West Virginia versus BPJ.

Hey, everyone. This is Leon from Prologue Projects. On this week's episode of 5 to 4, Peter, Rhiannon, and Michael are talking about West Virginia v. BPJ, a recent case about trans rights. In 2021, the West Virginia legislature passed the Save Women's Sports Act, banning transgender women and girls from joining girls' teams in secondary school and college. In West Virginia, there was only one openly transgender girl who played sports, a 12-year-old who socially transitioned in the third grade and ran cross-country. BPJ, as she's referred to in the case file, sued the state, arguing that the ban violated Title IX's protection against sex discrimination in education. and the Equal Protection Clause of the 14th Amendment. In a 6-3 decision, the Supreme Court upheld West Virginia's ban on trans girls in sports. This is 5 to 4, a podcast about how much the Supreme Court sucks.

Welcome to 5 to 4, where we dissect and analyze the Supreme Court cases that have ravaged our civil rights like the cyclospora is ravaging our nation's intestines i'm peter i'm here with michael hey everybody and rihanna it's getting nasty out there yeah rest in peace to lindsey graham

taken out by the diarrhea virus oh my god is that the theory do we think that that is my theory and

it's a fact and i'm recording it right now live on five to four i heard it had something to do

with his heart giving out because of explosive diarrhea of course right there's only so much

you can poop before your heart fails yeah and lindsey graham crossed over the threshold

last saturday night yeah i saw it was something like maybe like aortic tear and then i saw people like looking up like is is an aortic tear painful perhaps and like and like even the like ai search result is like an aortic tear is extremely painful it feels like your organs are ripping apart and everybody's like yay well your organs are ripping apart right yeah the aorta is so it feels like it

yeah feels like it because it is happening right did you see the thing about him like shrugging off health concerns like hours before he died yeah i can't die now i still need to do the russian

section i can't die now i'm eating this pre-packaged lettuce what could possibly go wrong

did you see also he's asked i think it's like a day or two before he dies like hey is mitch mcconnell okay what's mitch mcconnell's health like have you talked to him and he's like

i don't know i'm gonna go talk to him right now it's like oh okay okay yeah he sure is he sure

is gonna go talk to him right now they're deep in conversation yeah it's possible that mitch mcconnell is only alive because lindsey graham met with him mcconnell sucked a little bit of his life force yeah graham dies yeah mcconnell lives for an extra two weeks

gains the strength to put up like a shaky thumbs up for a photo yeah that's just basic science

that's how republicans stay alive this week's case west virginia v bpj this is the seemingly inevitable trans athletes in youth sports case that i feel like we've we've been on a collision course with this one for several years now. A few years ago, the culture war attacks against trans people really started heating up, and red states started to implement categorical bans on the participation of trans athletes in school sports. And those laws were challenged as violations of equal protection, as well as of Title IX of the Civil Rights Act, which prohibits sex-based discrimination in public or publicly funded schools. And a lot of those challenges were successful initially. A few years back in federal district courts around the country, you saw the athletes winning. But now this issue has reached the Supreme Court, which ruled in a 6-3 decision that these bans do not violate the Equal Protection Clause. Yeah, one fell swoop. 14th Amendment

means something a lot different than decades of precedent would have indicated. Let's get into the background. Like Peter said, we've talked about these cases before. We talked about this case in our term preview back in like September-ish of last year. Certainly been in the news when oral arguments for this case happened. Just to kind of put us in context, though, in terms of what a culture war lightning rod issue this has been over the past three years and certainly at the Supreme Court. Last term, the Supreme Court upheld that ban on young people, minors receiving gender-affirming care in the form of hormone replacement therapy. Earlier, just this term, we had Childs v. Salazar that we did.

episode on. That one held that it was within a therapist's First Amendment rights to do conversion therapy, harmful conversion therapy. And I want to emphasize also this context in which we're talking about multiple Supreme Court cases, multiple holdings from the highest court in the land. It has to do with such a small part of the population. And yeah, it's this huge issue at the Supreme Court right now, I think that says a lot about the function that the Supreme Court

plays in society right now. To piggyback on that, like this case reminds me a lot of like, you know, Masterpiece Bake Shop or the, you know, the wedding website case where you had basically fake plaintiffs, people who had never even been asked to make a cake for a gay couple or asked to make a website for a gay couple. Here you have a law in West Virginia that we'll talk about later literally has only impacted one person over a five-year period. These problems are in a very real sense imaginary for almost the entirety of the population, if not the entirety of the population. But they are a right-wing boogeyman. They are this moral panic, this like fever dream of the right. And what the Supreme Court does here by taking this up and ruling on is legitimate those moral panics and constitutionalize them and make them a real quote-unquote national problem.

Yeah, there's like a body of law under this court that's sort of like the constitution for people and things that don't exist. Like, you have protections for homophobes who, like, imagine that they're going to be forced to make a product for a gay person or a gay couple. You have protections for transphobes who imagine that they're about to have like their spot on the team taken, you have like a whole voting rights analysis, a whole voting rights framework that is increasingly built around conspiracy theories about stolen elections, right? Just like a fake constitution.

Just a little bit of a quick background on these cases. I'm saying cases plural because there was another case called Hecox that was consolidated into this one. So in Hecox, that case had to do with an Idaho state law that was a ban on trans women and girls participating on girls and women's sports teams. Both of these laws, I think, passed in 2020-2021. The Idaho one was the first in the country. Yes, the Idaho one was the first in the country. At the time it's passed, Idaho Attorney General Raul Labrador said female athletes have become bystanders in their own sports.

There were actually no non-trans women playing in Idaho sports.

They couldn't identify one. They couldn't identify one.

It was all trans women, as pointed out by Raul Labrador.

Right, right. Raul Labrador saying male athletes who identify as female have taken the place of their female competitors on the field and on the winner's podium. Straight up lying, just making stuff up. Now let's get into West Virginia VBPJ, which the facts of this case are what are sort of like primarily considered and handled in the Supreme Court case. West Virginia passed the Save Women's Sports Act that banned boys assigned male at birth from participating in girls' sports. Of course, this is targeted at trans girls, banning trans girls from participating in sports. And West Virginia, I guess a little bit better than Idaho, in the five years that this law has been on the books in West Virginia, has identified one trans girl in the state who wants to participate in sports as a middle schooler. And she is as a middle school. This was sixth grade when this started. Yeah. She is identified as BPJ because she is a minor. So BPJ entered sixth grade looking forward to running cross-country on the girls team but the principal of her school told bpj's mom that bpj couldn't try out because of west virginia's law and important fact also she was still banned even though everyone who tried out for the cross-country team made the team right meaning there weren't any cuts and you know later we'll talk about this the conservative argument is like around this like zero-sum situation in sports where like a trans girl is going to take the spot of a cis girl.

Because there's a finite number of spots on a team. Only one team wins. Everything's zero-sum.

Yeah, but that's just not the case in BBJ's case. So, you know, the legal questions here are whether there's sex discrimination about whether trans kids and trans athletes are getting equal protection of the law, whether federal law in Title IX protects, you know, this kind of equality in school sports. And what you see, though, is that like trans people's lives at the Supreme Court is just treated.

with outright bigotry. I want to get into some examples from the oral arguments in this case. Alito, in oral arguments on BPJ, breaks out this question. Quote, looking to the broader issue that a lot of people are interested in, there are an awful lot of female athletes who are strongly opposed to participation by trans athletes and competing with them. What do you say about them? Are they bigots? Just noting, like, this isn't a legal argument. This isn't a legal question. Alito just doing culture war stuff. Are you identifying us as non-woke bigots? Kavanaugh always in the oral arguments like multiple time referencing his coaching experience that he's coached youth sports. And, you know, he's doing this zero something in oral arguments. He's talking about, well, rosters and youth sports are capped. So if a trans girl makes the team, that means a cis girl isn't going to make the team. The lawyer at oral arguments was like, well, this law applies to a bunch of teams where there aren't any roster caps. What, the zero something doesn't make sense. And Kavanaugh says, well, most teams do have cuts. And for an individual girl, cis girl who gets cut or can't meddle, there's harm that we just can't brush aside. Talking about all this harm, made up harm.

Yeah, imagined harm.

Yeah, I mean, look, you could just sort of steel man this and create the disaster scenario in their minds. This is, there's one athlete in West Virginia, right? We're talking about one slot on a track and field. Right. Right. So your worst case scenario in this particular case is that one track and field athlete does not get to participate because she was beat out by the trans girl. Right. So your worst case scenario here is that one track and field athlete is beat out by this trans girl and does not get to participate. But I don't really understand why that is different from the trans girl not getting to participate. Like, if your premise is that, like, oh, it's important that girls participate in youth sports, youth sports has a ton of value, people derive a lot from it, all true, then I don't really understand why it weighs in favor of one girl rather than another.

Exactly. And zooming out a little, like what we have from all of this is one piece of an attack on trans lives broadly. This one, another attack on kids. And, you know, throughout, I think people might say, well, like sports is complicated. There are locker rooms involved or whatever the fuck. But we're going to talk about this throughout this episode. These kinds of like reductive conversations that boil down to like biological determination, biological and gender essentialism. These are harmful. These are harmful to everybody. So it's a good place to note before we turn to the majority opinion that, like, throughout this opinion, in terms of how the justices, especially the majority opinion, talk about gender and talk about the people involved here, they're going to use outdated and, in fact, transphobic language, things like biological man, biological woman, biological girl.

The laws use the term biological male. And so the court uses the same terminology throughout. And Brett Kavanaugh is not woke enough to know that biological male has problematic elements. That it's sort of essentialist language.

Yeah, exactly.

Yeah, and we think it should go without saying, but, you know, especially if we have new listeners or whatever, it's not just the language. Obviously, this podcast, we believe transgender kids should get to play sports with their friends. They should get to compete if they excel. Their excellence should be recognized. You know, we are going to be talking about arguments the plaintiffs make. We're going to be talking about arguments the liberals in sort of concurrence and dissent make. but everybody here thinks kids should be able to play sports and have fun and, you know, be a part

of it. Yeah. All right. Let's talk about the law here. So there are two arguments. One is about Title IX of the Civil Rights Act, the law that forbids discrimination based on sex in public schooling, including athletics. And then there's the Constitutional Equal Protection Clause argument. The Title IX argument is actually unanimous. So the plaintiffs conceded that the term sex in the law is referring to biological sex, which even the liberals say is enough to essentially forfeit the argument. We will talk a little bit about Title IX later, but I want to focus on equal protection because it really is sort of the same argument in a different legal context. So the big question here is whether this violates the Equal Protection Clause, which of course requires equal protection under the law. That doesn't mean you can't discriminate. It just means that if a law does discriminate, it needs to have a good reason for doing so and be appropriately narrow so that there is minimal collateral damage to other people's rights. So first, I want to outline the arguments being made by each side here. The states are saying that quote-unquote biological males

have an advantage in sports over biological females, and therefore these bans on trans athletes are reasonable. The athletes actually do not contest the foundation of that argument. What they say is, first of all, it's not for the Supreme Court to decide whether there are biological advantages here. That's something for a trial court to decide. It's a factual determination, right? That's something we leave to trial courts rather than appellate courts. Second, even if you assume that transgender girls generally have an advantage in sports over cis girls, that doesn't mean that the plaintiffs here have an advantage, right? So the law would be unconstitutional as applied to them. That's what's called an as applied challenge. The argument is just the law might not be unconstitutional on its face, but it's unconstitutional as it is applied to me. So this girl, BPJ, transitioned at a young age, did not undergo male puberty. Right. So all of these purported advantages that the state points to would not be present for her specifically. Yeah. So she's saying like, OK, trans girls might have advantages generally, but I don't. So you can't apply this law to me without violating the Constitution. Right. It would be discriminatory to apply it to me. But Kavanaugh starts off the opinion with a brief overview of why we segregate sports by sex, in his opinion, making the basic argument that we do it to ensure that women have a space to compete despite the biological differences in performance. To his minor credit, he also does touch on historical discrimination and stereotyping, too, although he gets a little bit cute with the history here. I'm going to read from the opinion. He says, women's and girls sports. This makes it seem like trans athletes just started to participate in sports recently, and then that resulted in all of these laws. But the timeline does not actually line up here. The IOC started allowing trans athletes in 2004. By the late 2000s, there were the first state laws expressly allowing trans athletes to compete in accordance with their gender identity. The NCAA allowed trans athletes to compete for championships starting in 2011. the Obama administration was interpreting Title IX to protect against discrimination based on gender identity. Not to mention you had trans athletes participating well before any of this without much fanfare. But the first law prohibiting trans athletes pops up in Idaho in 2020. So

Kavanaugh wants to make it seem like one led to the other. You start to see trans athlete participation in sports and then boom, there is this reaction. It's not actually what went down. It's not really true. And that's important because the actual genesis of these laws is sort of detached from the reality of participation in sport by trans people. It's related to a right wing moral panic. And that's why we have entire state laws that are being brought up to the Supreme Court that are functioning to keep one middle school girl off the fucking track and field team. Right. You can't say, oh, my God, out of nowhere, in recent years, France has tried to start playing sports. Not what happened. Not what happened. The participation in sports of trans athletes predates all of this. And not just that, but the very same organizations that he says were reacting to this 20 years ago were expressly allowing for this.

Yes. We had over a decade of trans participation in sports with no reaction whatsoever and no issues. And then there was a moral panic. And then there were these these laws and responses to the moral panic. That's what's being reacted to.

I mean, Kavanaugh expressly saying, oh, the NCAA and the IOC recently banned trans women from competition without mentioning that they had previously had specific rules permitting them. Yes. I mean, just just wildly dishonest. Yeah. So the basic argument that Kavanaugh makes here is what you'd expect, right? Quote unquote, biological males have an athletic advantage. So it's reasonable to discriminate on that basis in sports. But like I said, the athlete's argument here is a little more complicated. She's saying, OK, sure, there is generally an advantage that trans women will have over cis women in sports, but I don't have that advantage. So applying that ban to me is unconstitutional. So Kavanaugh shouldn't be able to rely on like his general belief that trans women have an advantage over cis women.

Kavanaugh basically says, look, it's generally true that trans women have this athletic advantage and that's enough to validate the law. Basically, it doesn't matter that there are the occasional exception. Right. Yeah. And he also says that courts don't have the tools to do this sort of like case by case analysis for exceptions. That is better left to legislatures and schools. Feels like it's overestimating the abilities of legislatures and schools. But whatever.

Since they did blanket bans.

Yeah. I mean, look, it's a little bizarre because, first of all, courts make scientific determinations all the time. This is something you would see in tons of different contexts. I mean, Rhi, I'm sure I can't imagine what sort of nonsense you've seen on the criminal side. Of course. In terms of like judges, you know, entertaining certain types of evidence, right?

But like in patent law, they're looking at fucking chemical compounds. And is this generic medicine sufficiently different from like the brand name or whatever?

Or this court in major questions doctrine, right? Like taking up like the really based in fact and science determinations that independent federal agencies like the EPA, for example, or the FDA, like take up.

Right. Like how far underground water goes and shit like that. Yeah.

Yeah. Yeah. Right. Right. So according to Kavanaugh, courts are qualified enough to permit categorical bans of trans girls from sports, but not qualified enough to allow one trans girl to play. That is the that is sort of the position he's taking. there is another big lingering problem for the majority opinion, which is how you square this with Bostock v. Clayton County. That is the case from 2020 that said that Title VII of the Civil Rights Act, which prohibits sex discrimination in employment, protects against gender identity discrimination. The idea being that discrimination on the basis of gender identity is inherently discrimination on the basis of sex. Kavanaugh gets around this by basically saying, well, Well, this is different because it's sports. Sports are this unique thing where we all acknowledge these biological differences, which makes it different than the employment context, which might sound OK in a vacuum or at least like plausible in a vacuum. But it's hard to square with the actual language of Bostock. Bostock says, quote, it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Impossible. Yeah. Kavanaugh, I think, is basically first, I mean, he's not really reckoning with the actual holding in Bostock. But also, I think he's just trying to sort of carve out this space where he's like, sports are its own thing constitutionally. Sports is sort of like a separate place where maybe discrimination is OK in certain respects. It's not a real serious reckoning with Bostock, that's for sure. Before we move on to the concurrences and dissents, I want to point out, I feel like the gap between public perception of this issue and the position that BPJ takes here is massive. Yeah. If you go to like the darkest corners of the comments section of like the newspaper articles about this case or whatever, you'd think that what she was asking for was like 28 year old athletes who identify as men to be able to just switch genders and go participate in eighth grade girls track or whatever. Something fucking absurd like that. The public has this almost like absurdist view of what these athletes are actually asking for. All this girl is saying is like, hey, you're concerned about these biological advantages that trans women ostensibly have. I don't have those. Yeah. So let me run. Yeah, that's it. Right. It's like this very narrow, very moderate position, not particularly radical at all. But it just gets framed as like this really, truly radical ask that this girl be allowed to participate on a team where no one got cut. Right. Yeah, exactly. In like every respect, the gap between how the public thinks about these issues and what's actually happening on the ground is fucking massive.

Just in terms of the scale of it, in terms of the demand from the athletes, all of it. That's right.

Yeah.

And by the way, if you want to understand what a less moderated ask might look like here, I think it would basically be the argument that gender identity is a protected class under the Constitution and that this is discrimination against that protected class. It's discrimination targeting that protected class. Now, the plaintiffs here aren't taking that position because that position has basically already been rejected by the Supreme Court. So it would be a waste of their time. The Supreme Court has essentially already said that they don't believe that gender identity is a protected class. And so they're taking this much narrower position, which is just, hey, let this one girl run. Right. Let this one girl compete. That's why it's so much more moderate.

position. You could see a much more robust ask. And I think in a perfect world, you would get a much more robust ask. But this is the Supreme Court that we're dealing with here.

So speaking about Bostock, we should talk about a concurrence from the author of Bostock, Neil Gorsuch. He joins the majority and writes separately to make a couple points. So this is under Title IX. He says, look, Title IX is spending. The way it works is the government sends funds to the states so long as they comply with certain conditions. And his argument is basically those conditions need to be known up front. Like the state needs to know what it's agreeing to when it accepts the federal funds. And he doesn't think requiring states to allow transgender kids to compete in the gender of their identification was communicated clearly to states in advance.

So it's not like a part of Title IX. It's not subsection, gender identity.

Yeah, that's not a part of Title IX that states understood in advance. He thinks it's like a contract.

I just don't, I don't really get this. At first I was like, oh, has he found something here? And I like thought about it for a minute. I don't really get it.

It does, I think, raise the interesting possibility that like, at least in the mind of Neil Gorsuch, the government could condition funding on this and that would be permissible, right? Like he would be fine with it. He also tries to square it with Bostock. And I think he does actually in a way, it's not in a satisfying way, but he says basically, look, this is sex discrimination. Just like we said in Bostock. Title IX contemplates sex discrimination, obviously, because it contemplates girl-only sports.

Yeah.

The question is whether it's lawful or not. And everybody agreed going into Bostock that firing someone based on their sex is unlawful, whereas that's in dispute here, whether this sort of discrimination is unlawful. And I actually don't think it is. I think for the reasons the majority states, I don't think it is. So he definitely loses a lot of woke points for that, and rightfully so, because I think it's shitty. I don't really buy this from him, to be honest. No, I mean, I think it's obvious that his

personal position on these issues has shifted. You could see it in the language, right? I think you're right that he's tapping into something very fundamental here in like especially in the title nine analysis which is everyone involved here agrees that sex segregation in sports is okay and legal and the only question is like what are the boundaries of that the legal theory that he's

putting forward in bostock is that discrimination on the basis of gender identity is discrimination on the basis of sex. And so that's the only way at this time, and clearly not even anymore a few years later, that conservatives can sort of see their way to siding with like a trans person who has been discriminated against. But that doesn't work here because gender identity is distinct from a pure sex-based classification that would overlap in a conservative's mind.

The majority is sort of predicated on this idea, not just that there are biological differences in athletic performance, but that they are basically impossible to overcome, right? That it's not even worth thinking about exceptions. And that is just absurd. I mean, that's just crazy, right? Because to the extent that you believe that there are these biological differences, you can map them out. What are they? Is it testosterone? Because we can measure that, right? Is it like skeletal? Is it like height and shit? Because you can measure that too. If you can boil it all down to these objective criteria and this girl can say, I don't have any of that, then I then I don't quite get it. It's not that they are opposed to unfairness in sports. You know, LeBron James and I are about the same age. I play LeBron James and imagine I've been playing basketball as much as him. Right. Is it fair? No. Does he have a biological advantage over me? Yes, I would say so. Yes, I would say so. Right. these people don't believe that biological unfairness matters. They believe that this specific type of biological unfairness is such a categorical distinction that it cannot possibly be overcome. And I think that's just not true. That's just not correct. Yeah, no, absolutely.

And, you know, the right loves to play this gotcha game where they'll ask people like to define what it means to be a woman or whatever. But, you know, ultimately, they don't want to do that either here. They want to say sports are specific to women only as we see it, but then don't want to actually take the time to say, and this is what we view womanhood as comprising in the context of sports. Because the second they do, there are going to be some trans kids who meet that definition and they don't like that. They don't want to set parameters because some trans kids will meet those parameters.

Exactly.

And it's worth saying, you know, this is less of a concern for the majority, but another side effect of this is. you know, once you start defining biological metrics, what counts as a woman, there are going to be cis girls who fail those, right? Who just naturally have higher testosterone or whatever. Girls of all gender identity are going to be hurt by this. Even girls who, you know, meet some ridiculous biological standard still might be accused of being trans and having to undergo invasive examination, prove their gender or their biological sex. This is a regime that is going to hurt girls everywhere of all types, which sort of puts the lie to the idea that this is all about concern for girls. The point is just to exclude trans kids because they don't like trans kids. That's what's going on here, which takes us to Justice Thomas's concurrence.

The only honest opinion from the conservatives in the bunch.

Just rank bigotry. He writes to say trans people don't exist. It's a mental illness. There are only two genders, men and women. And that's it.

Do you have quotes? Because I feel like people might think you're exaggerating.

Yeah, no, I'm not exaggerating. I will read from it. Here we go. Legislatures have many obvious rational bases to keep men who believe that they are women out of teams and private spaces reserved for women. He says, men and boys with gender dysphoria are not women or girls, even if they believe they are. Sex is an immutable biological characteristic. It is binary. It's not subtle. Dr. Clarence Thomas over here. It is three paragraphs and the amount of bigotry he fits into those three paragraphs is pretty startling. I'm not being

cheeky. I appreciate that there's at least one member of the conservatives who's willing to say what they think. And I truly do believe that this is what they all think. Right. That trans people aren't real. And so it doesn't really matter if you categorically ban them from sports because it's not real. And it doesn't really matter if you don't let them get gender affirming care because it's not real. And yeah, I don't know. This is another one of those things. Not that you need like more examples of Republicans being anti-science, but this one pisses me off because they act like they're the pro-science bunch. As if, like, doctors of all types don't believe in trans people. They're like, we're just going to spit scientific facts at you. Like, they're talking about, like, the fact that the sun rises in the east or some shit. And then they just go on a transphobic rant that actually doesn't really have a strong foundation in science. They just think it does because they're dumb.

No, they're just lying.

Not even setting aside trans people, it doesn't recognize the existence of, like, intersex people.

Exactly.

There's also one thing he does where, once someone points it out, you'll see it everywhere, he is consistently using the term men when everyone knows we're talking about children. Yeah. Trying to evoke the idea of, like, a man invading a woman's spaces and not tell the story of what's a 12-year-old.

Yeah. Do you know what I think is particularly gross about this is that treating children as full-grown adults to make them seem scarier is like a classic trope deployed against black children. And this is how like violence against black children is justified by police because they look so big and strong and they look like full-grown men. And, you know, it's not surprising, but it is really gross to see it from one of the few black justices turning around and peddling in that same exact sort of stereotypical bigotry on another disfavored group.

To be fair, he will also do that to black children if given the opportunity.

Absolutely. Absolutely. He absolutely will. I fucking hate that guy.

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make your summer wardrobe easier. Go to quince.com slash five four, all spelled out for free shipping on your order and 365 day returns. Now available in Canada too. That's Q-U-I-N-C-E.com slash five four, all spelled out for free shipping and 365 day returns. Quince.com slash five four. So we get to now one of the dissenters, Sotomayor. Now, this is in part her decision is a concurrence because Sotomayor agrees, you know, Peter said the unanimous part of this decision is that Title IX doesn't apply here. And so Sotomayor agrees that Title IX does allow states to ban trans athletes from participating in sports in this way. But Sotomayor says, wait, you, Kavanaugh, you, majority opinion, have decided this 14th Amendment question about equal protection. You have decided it way prematurely. We don't have all the facts we need to determine the 14th Amendment question. And Sotomayor is sort of writing out a path for how the majority obviously is wrong on the 14th Amendment, even though they don't have all of the facts yet. You know, Sotomayor is really distinct from the opinions we've talked about so far in actually talking about BPJ, right? Like this little girl and her experience, this girl who wants to play sports but is banned from doing so. Sotomayor takes a long time kind of picking apart the state's supposed justifications. Their interest, the thing that the state says is important enough to do to discriminate against trans kids is preventing unfair advantages and also like protecting the safety of children's participation in sports. Now, as we've said multiple times, BPJ and her family say these reasons that supposedly justify discrimination don't apply to this child. She has never experienced male puberty. She has received gender affirming care that prevents her from having male puberty and having what West Virginia says is some physical advantage over teammates who were assigned female at birth. She is the only trans girl in this state that the state has been able to identify that wants to play sports. And so the court is prematurely cutting off this 14th Amendment question. And Sotomayor goes through not just precedent, but really like what the 14th Amendment equal protection heightened scrutiny analysis should be.

She's like, remember, if there's heightened scrutiny here, we should really, really be questioning what the state says are important enough reasons to discriminate. And Sotomayor says, all right, maybe the state has that. Maybe, sure, protecting safety in kids' sports, that's an important reason. But this narrow tailoring question, the law that is applied, the law that does discriminate, the law that does classify based on in-group, out-group, or based on race or here's sex, the law that does discriminate has to be narrowly tailored to that so you don't get this overbroad, you know, like Peter, you said is like collateral damage. And Sotomayor says there is clearly, clearly a problem in this law with that question, because this is a blanket ban where there are many, many exceptions that could apply. She refers to VMI, the Virginia Military Institute case. We've talked about this before. It's a case where at the time this case was decided, the Virginia Military Institute just had a blanket ban on women being admitted at all. And in that decision, famously, Ruth Bader Ginsburg writes the majority opinion that says this blanket ban doesn't cut it for equal protection. There are women who can meet these standards of participation. There are women who can meet this, you know, citizen soldier standards. And so women who meet the standards should be able to be admitted to this university.

Very similar case in a lot of ways. that the majority substantively ignores.

Exactly, yeah.

I think there's a really telling part of the Sotomayor opinion where she goes through the previous policy, the policy that existed before the ban. Yeah. This ban replaced a policy of case-by-case assessment that had been in place since 2016. Back then, sports were also sex-separated as they had been for decades, but transgender students could participate on teams matching their gender identity if their schools determined that fair competition would not be impacted by the student's participation. An opposing school... could contest a student's participation by appealing the determination to the West Virginia Secondary Schools Athletic Commission's board of directors. The board would then assess whether allowing a student to play would adversely affect competitive equity or the safety of teammates or opposing players. I think that's important to note because, again, what this categorical ban is replacing is not some like, you know, radical leftist policy of anyone gets to self-identify and play and no one can object. It's actually like a relatively sort of stringent operation here. There are methods for people to challenge a student's participation in an appeals process. There is like a very, at least theoretically nuanced process in place here, And it just gets replaced with this categorical ban.

Yeah, exactly. And we're not saying, right, that like that previous policy was the correct policy.

No, I don't trust the West Virginia Secondary Schools Athletic Commission's Board of Directors.

Yeah. That like a local school board taking up these questions is like the right policy that should be applied to trans kids participation in sports. Not at all. But what we are saying and what is being decided in this opinion is that on the law. And in the discussion that is happening, the majority is saying a blanket ban is the only way to deal with this huge problem that just a few years ago was not treated this way.

Right. And again, just undermines Brett Kavanaugh's sort of like theory of the case. Right. This narrative where like all of a sudden trans students started participating. A decade ago, West Virginia had a process that allowed trans kids to compete. Right. West Virginia.

So, you know, just to wrap up in terms of Sotomayor's dissent, which what she gets to and what I think is really important, she lays out piece by piece is that not just is the majority doing like heightened scrutiny and 14th Amendment analysis wrong, that there are tests that have already been established. there is precedent to refer to that shows the court, you know, how it should be taking up this heightened scrutiny. Sotomayor is saying, actually, she concludes like this is a new kind of equal protection analysis. This is a different way of interpreting the 14th Amendment that is really damaging and opens up a lot of potential harm now. Yeah. And then we have one more opinion after

that, Ketanji Brown Jackson writing just for herself. She joins Sotomayor in the concurring in part and dissenting in part. She joins the opinion in full. She's the only one who sort of pokes under the hood of the Title IX claim, I think. That's what she writes separately to do. And she says, look, everybody seems to agree that when Title IX says sex, it means biological sex. and, in fact, the majority says Title IX cannot plausibly be interpreted to refer to anything other than biological sex. That's a direct quote. And she's like, I'm not so sure. And she looks at some case law. She points out that under Title VII, which uses very similar language, is in the same overall big statute. There is a bar not just on discrimination based on biological sex, but also gender stereotyping. She says, you can't fire a woman for being aggressive because you believe women should not be aggressive, right? Like that is a gender

stereotype thing. It feels like she's poking at a really important idea here, which I don't think she says expressly, but like how much stereotyping are we allowing? Because the way that Kavanaugh frames this up, and this is sort of due to where we are in the litigation, is like everyone agrees that there are biological differences, which is like true in like the broadest possible sense. Right. But what we're arguing about is what is the scope of those biological differences? Yeah. Right. Right. And that's the hard part. If you're allowed to, as a court, just say, well, there are biological differences between these demographics and therefore discrimination. Is fine. Categorical discrimination is fine. Yeah. That's a disaster. Yeah. That's a disaster policy. That's just legal discrimination in many instances. So that presumably can't be the policy. So what what is it? What are the exact contours? And I think Jackson pokes away at this a little bit better than sort of my aura.

Yeah, there's a really good line that I think is worth reading. She says a transgender woman penalized for being perceived as aggressive has experienced discrimination, quote, on the basis of sex just as much as a cisgender woman has, no matter that the transgender woman's behavior matches expectations of her sex assigned at birth. And I think that's undoubtedly true. Like if a transgender woman is penalized for being aggressive, that is a gender stereotype injury under the law. That is discrimination based on sex, even though the behavior matches the. stereotypical behavior of her sex assigned at birth, right? Like, neither the majority nor any of the concurrences can really square this, right? And so, you know, her point is like, look, maybe Title IX, maybe we're not really thinking too honestly about how capacious the word sex is in Title IX. Maybe it can hold a lot more than we're saying here. And I think it's good that somebody took the time to say that and to illustrate it very vividly.

Yeah. There's something really tricky about Title IX in particular, more than the equal protection question, where it's sort of like, we all agree that we're sort of segregating along these lines, right? You just need to sort of hash out what exactly the boundaries are.

Yeah.

Where does that leave trans kids? It's like an important question. And I think the majority concludes, who gives a shit where it leaves trans kids? That's where the majority lands. And Jackson is sort of like, well, no, I care, and I think we need to talk about this.

I think both Sotomayor and Jackson's dissent dance around this, but what's happening here is it is a very narrow case and a very narrow sort of context-specific type of discrimination against trans kids is leading to very sort of expansive statements from the court on statutory and constitutional protections available to trans people in general. And I, you know, I think both Sotomayor and Jackson are trying to say, we should be really careful about like. Yeah, yeah. There's concern about how much we're willing to say about, you know, like we don't really need to be saying trans kids are not part of a protected class. We don't need to be saying sex in Title IX is just biological sex. Even if you want to decide this case this way, to have this outcome, we can do it in a much narrower way that doesn't open up trans kids and trans people in general to a bunch more discrimination. But of course, that is the point of this case, right? This case is being brought as the thin edge of the wedge to shove in more and more discrimination against

trans people in general. Yeah. Yeah. And by the way, if you're wondering why then Jackson and Sotomayor still concluded that Title IX wasn't violated here, they were essentially going based on the plaintiff's arguments, right? The plaintiff said, yeah, we think that sex in Title IX means biological sex. They didn't try to contest that. Yeah. Which I think was probably a strategic decision on their part. Like, we're not going to fight this fight. And so I think what Jackson is basically saying is, look, they conceded this, but that doesn't mean that they're right.

You know, throughout what we've talked about is how the majority is supposedly concerned with the harm that will fall on cis girls or the lack of safety that is introduced into youth sports if trans girls are allowed to participate. And we've said this before, this is like a telltale conservative tactic where the harm that will supposedly fall on their favored group is wildly overblown compared with the importance and the magnitude of harm that falls on here, the plaintiff and broadly the disfavored group to the conservatives here, like trans people, trans kids. And I think this brings up like an important thing, like we should spend some time thinking and talking about, which is the harm. So yes, we've said like this applies to a small portion of the population. Maybe this isn't a huge number of people, but discrimination and the harm of discrimination on disfavored groups in the law historically, like the point is that that falls on and is harmful to a minority. And that's why it's still important. And that's why you still question it and that's why you still take that harm seriously and i think you know maybe some people like it might be sort of easy to like kind of wave your hands at like it's not just discrimination at trans kids but it's even like a smaller thing which is like trans kids in sports like how is that such a big deal but actually like sports and kids is really important and the majority says this the majority opinion concludes with how important sports are right For, like, little girls.

Right. And with no recognition of the fact that he's doing this at the end of an opinion about a law that excludes a subset of them. Exactly.

Of girls. And so, you know, we can just take what BPJ's mom said about BPJ's participation in sports. She says that BPJ had the time of her life participating on sports teams that BPJ practiced after hours and on weekends. She would practice her cross-country form in the backyard by herself for hours. And the BBJ, in general, is the happiest her mom has ever seen her when she's accepted for who she is and able to participate in school sports. In BPJ's own words, this little girl talks about sports like this. Sports are an important part of my experience at school. I'm so happy to have the chance to participate. I've made so many new friends and I just want to have the opportunity to play school sports like any other girl. We have to, have to recognize the massive harm that falls like on trans kids. This is an extension of societal bullying on them. This is an extension of societal isolation on them. And we should see sports as, yes, just as important as the conservatives think they are, especially for girls, that we can see sports as affirming of gender. And it is. We can see sports as affirming of childhood. And it is as affirming of the way that kids grow up and learn to participate in society, work on teams, work on their talents, work hard at something. There's massive, massive harm in excluding children from doing this and

having these experiences. Even if you're a kid who doesn't want to participate in sports, the idea that there is just like this segment of your social life that is blocked off by the law. Yeah, exactly. Everyone else can do that, but you can't. Exactly. Obviously operates to make them feel other than excluded. It also introduces potentially

more supportive mentors and authority figures into the lives of kids, which can be tremendously beneficial with the right coaches, right? They're just untold innumerable incalculable benefits to being able to participate in sports. And Kavanaugh just has no self-awareness at all as he's listing these, that he is greenlighting the taking away of these benefits to a disfavored

population. Imagine a decision about segregated swimming pools in like the 60s where the decision just goes on about the benefits of public swimming pools. And the entire premise is just like, and that's why we got to keep black people. Right. Right. Right. Really wild. It's it's absurd. But that is essentially what's happening here. He's just going on and on about the importance of sports. But the actual opinion is about who gets excluded. He's saying you get to carve out a subset of the population from participation in this thing that he thinks is like this unmitigated good. It's so fucking absurd. It's ridiculous. And I do want to say, you know, we talked a bit

about how Kavanaugh position sports as the zero sum thing. You know, if you take a spot on the team, you're taking it from someone else. If you take a place on the podium, you're taking it from someone else and blah, blah, blah, competition, all that. And that is certainly how sports are practiced in much of the United States for most age groups, but that's not universal and that's not the way sports have to be, right? Like, for one thing here, as discussed, like the cross-country team doesn't make cuts, a perfect example of how that doesn't have to be. But also there are youth sports leagues in the United States where, for example, every kid on the team has to get playing time. Right. So like if it's the fourth quarter of the basketball game and three kids haven't gotten to play yet, they have to play the full fourth quarter. There are equitable approaches in Norway. I was reading about this. They don't keep score and don't keep track of winners and losers until they're like 13. Under a certain age. Yeah. Until they're 13. Yeah. There are different ways to do this. So I do think it's worth remembering. Like I'm not saying the constitution requires that there are no winners in scorekeeping until you're 13. But by the same token, I don't think the constitution demands or builds into it this model of sports. And if your model of sports necessarily excludes people based on, you know, their identity, denies them equal protection, then I think it's the sports model that has to go, not equal protection, right?

Right. Also, I mean, to the extent that there's some, like, limited truth to what he's saying, that there are zero-sum elements to sports, right? The fact that there are so many leagues that are not really zero-sum, right, where there are no cuts, that there are leagues where there are no championships, right, for little kids, the very least, you would expect that you can't apply that argument to those leagues. Yeah. It feels absurd, a little bit absurd to me just as someone who played like regular intramural sports for most of my youth, but never was like super competitive. Like the idea that this is like zero sum and it's about winning. It's like, really? Because I went my whole childhood where sports was like a pretty big thing I did. You know, I played baseball. I played basketball, soccer. I won like one championship, like a fourth grade baseball championship.

Right. It's not like my venture into sports was a failure or something, right? It's just not where the value lies. It's such a bizarre, almost reactionary way to think about youth sports.

Yeah.

It's different for Rhi because she was really good.

I don't know. I'm really like sitting here thinking about my youth sports experience. I did play sports. I played sports pretty seriously. I played volleyball, but I played soccer most seriously. Very, very competitively at very high levels from a young age. It's so important to who I am right now. It was so important to my connection to my family, my connection to, you know, my social circle growing up. And I'm also thinking about like in junior high in Texas, you know, federal laws like Title IX mandate this. They mandate sort of equal opportunity for women and girls in sports. So they mandate sort of equal opportunities, sort of one-to-one teams, one-to-one, you know, kind of numbers of spots, this kind of thing, funding, this kind of thing. So in junior high in Texas, because there isn't a girls football team, American football, girls at my junior high tried out and were had to be allowed to try out for the boys football team. And they did so. And they were like treated right. Like according to the rules of the tryouts and one made the team, others didn't make the team. Like, this is what these laws are for, you know? And it's just it's super sad. It's super gross the way this case came down.

Yeah. Yeah. One thing that people always talk about is how few of these situations there actually are. Right. There's one girl in West Virginia who wants to play, who's being excluded. Now, you might think that that isn't really relevant for the legal question here, but I think it is. For sure. The question about whether this violates the Equal Protection Clause is about a combination of, A, does it discriminate? B, what purpose does it serve if it does? Is it a compelling reason to discriminate? And Brett Kavanaugh makes it this big, grandiose thing, right? The compelling reason is these biological differences between boys and girls and the importance of sports and blah, blah, blah, blah. But that's not what's actually happening in West Virginia, right? What's actually happening in West Virginia is that one little girl is being kicked off the cross-country team. You're telling me that's a compelling reason to violate the Equal Protection Clause? Give me a fucking break.

I do think I want to talk, since we were talking about Ree's experience in a sort of elite sports context, that there are a lot of emotions around this from parents because they see sports as an avenue for getting their kid into college, right? Or paying for college. So any trans athlete is maybe an obstacle to their little girl getting their D1 scholarship to Arizona State or whatever. Her birthright. Yeah, that's right. And so I do think it's worth also discussing how sort of delusional that often is. One, fewer than 2% of high school athletes get any sort of college scholarship for athletics. Like the chances that your little girl is one of those is very small. It's very, very small. Whereas the number of parents who think their kids are getting a scholarship is very high. It's double digits, right? So there are just a ton of parents who are not realistic at all about this.

And give them a minority to blame, oh, they're all over it.

Yeah, exactly. And then the flip side of that is, you know, it's 2%, but that's because there are millions of kids in sports, right? The NCAA does give out like 200,000 scholarships a year, which again, we are talking the number of trans kids in the country competing in sports is like in the double digits or something, right? Like it's one kid in West Virginia. It's one kid. We're talking a handful of kids versus 200,000 scholarships. The likelihood that that scholarship goes to a trans kid, again, is near zero, just given the number of trans kids in sports. It's just, we're talking about near zero that your kid gets a scholarship. And if your kid is actually competing for a scholarship near zero, that they're competing against a trans kid. Statistically zero. Like this is a statistical nullity, right? Like this problem from any real perspective does not exist. And yet it's the subject of years of panic, fear mongering, the states in the country passing discriminatory legislation, Supreme Court cases. Right. It's just garbage. Like the whole thing is just garbage. I find it very upsetting.

I think it's worth talking about wedge issues and how the right is operating here. Trans kids in sports is an issue that a lot of ostensibly savvy politicos will say that the left needs to concede. Right.

Very unpopular. And so we should we should sort of give up on this. I want to point out a couple of things. One is that the actual position being taken here by this girl, again, not particularly radical at all. Right. Basically just saying, hey, I don't have an advantage. Let me play. Just me. Let me play. Right. Let me run. Very moderated ask here. Very, very narrow ask here. Still rejected. Right. And in the process of rejecting that very moderated claim, Kavanaugh sort of opens the door to all matter of discrimination against trans people. Right. Opening up this idea that biological differences, at least in certain contexts, between, quote unquote, biological males and, quote unquote, biological females might actually justify discrimination. Right. We saw the same thing in Scrimetti last year, where you had the issue of gender affirming care for youth, for minors. Another wedge issue, right? Unpopular with the general public. Why is it unpopular? Again, I think because the general public is basically hearing a right wing boogeyman. The idea that kids are just being rushed into irreversible surgeries and things like that. Just absolute bullshit. The reason you don't concede on these issues is because it never just stops there. I think that people get the impression that what the court struck down was like a very radical position, right, in both of these cases, in Scrimetti and BPJ. Not true. What's actually happening is that the court is sort of absorbing this right wing boogeyman about trans people. Right. And building it into the Constitution. Yeah. Building it into the Equal Protection Clause or lack thereof. And if you concede just like these little issues, you are allowing them to adopt that unconfested. Right. And I don't know. We were talking about this. I said this is like politics from the cuck chair. Right. The idea that you need to concede on all of these issues. you're just watching them rail your civil rights and you're like yeah let him go let him go yes this is not going to benefit you later yeah in some way when you concede the general public absorbs the idea that what you were asking for was way too much that you that you were taking a crazy position that the boogeyman was real and in fact all it all it was here is a girl who wants to run in west virginia one girl who wants to run track in west virginia all right folks next week mullen v doe is a case about uh temporary protective status um is it racist to say that haitians eat dogs and cats the answer may surprise you this case is actually fucking insane i agree it is horrible so fucking just wild uh just wild

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