Dobbs and Now B.P.J.

Guest Blogger

Reva Siegel & Mary Ziegler

Alliance Defending Freedom (ADF), the conservative Christian legal organization that litigated Dobbs, is now trying to do for the law of equal protection what it has done for the law of due process. Consider the cases it has brought to the Court in West Virginia v. B.P.J. and United States v. Skrmetti.

In B.P.J., the Court upheld, against equal-protection challenge, laws prohibiting transgender athletes from participating on girls teams. B.P.J. depicts its holding as a minor exception to the Court’s sex-discrimination jurisprudence, one that reflects the unique context of sports. But there is a problem with this account. B.P.J. represents the third minor exception that the Court has made in its equal protection sex discrimination cases in the past year. In cases involving transgender individuals—United States v. Skrmetti, Orr v. Trump, and B.P.J.—the Court keeps introducing new exceptions to intermediate scrutiny that have no obvious connection to one another.

Our forthcoming Article in the Texas Law Review identifies what unites these sex discrimination cases: they all employ the term biological sex which the Supreme Court had not employed in equal protection law before. Biological sex seemingly refers to science—yet it can also refer to nature, religion, and gender roles, as documents like the Nashville Statement of the Council of Biblical Manhood and Womanhood (2017) of the Southern Baptist Convention demonstrate. Our Article, however, focuses on the meaning of biological sex in equal protection law.

We show that biological sex is a movement signature—the fingerprint of advocates who are supplying the Supreme Court with resources for the stealth overruling of United States v. Virginia (1996), Justice Ginsburg’s opinion for the Court explaining the Constitution’s guarantees against sex discrimination (which judges apply in cases of discrimination on the basis of sexual orientation and gender identity, as well).

The movement context we bring to B.P.J. clarifies the Court’s path in the last year. Reading together the “biological sex” cases weakening Virginia—Skrmetti, Orr, and B.P.J.—we can see the Court beginning to constitutionalize the claims of a movement seeking the stealth overruling of Virginia on its thirtieth anniversary. Biological sex directs judges to defer to the judgments of the political branches rather than to scrutinize sex-based state action for sex-role stereotyping—a code associating sex difference and judicial deference that revives in contemporary idiom the very traditions of reasoning from the body that United States v. Virginia rejected. 

In B.P.J., the Court asserted its ruling was narrow—that sports is an exception that implicates physical differences in a way that employment does not. But B.P.J. also sought to normalize this exception, stating without any evidence other than the suggestion of the advocates that biological sex was the ordinary meaning of sex in Title IX and the Court’s sex-discrimination cases of the 1970s. This is wrong in several ways. Title IX prohibits “discrimination . . . on the basis of sex.” The relevant unit of meaning is not the word “sex” but the phrase “on the basis of sex.” The statute addressed beliefs about gender roles (not reproductive organs)—Congress was concerned about stereotypes leading to girl’s and women’s sports receiving virtually no funding. The term biological sex appears nowhere in the text or legislative history of Title IX (the first appearance of the term came in 2016, when conservative lawmakers proposed amending the statute to define sex as biological sex).

In deciding B.P.J., the Court ignored the text and history of Title IX and its proponents concern with sex-role stereotyping. It then employed a weakened form of intermediate scrutiny, identified as such by citations to Skrmetti and Burger Court decisions like Michael M. v. Superior Court that treat intermediate scrutiny as more akin to rational basis. Most revealingly, the Court twice quoted the very language ADF has cherrypicked from Virginia and reiterates throughout its campaign to legitimate judicial deference: that “[p]hysical differences between men and women” are “enduring.” For the Court to quote this language from Virginia is like a movement wink-and-nod, bound to energize those convinced that physical difference itself justifies the elimination of intermediate scrutiny of any kind.

Will B.P.J. be strictly limited to the sports context? It is hard to trust the Court’s assurances about B.P.J’s limits if the Court is already citing Skrmetti outside the specific factual context that decision purported to address.

The Court has not yet revised Virginia into the difference-deference-doctrine that ADF and Heritage seek, but conservatives on the Court are collaborating with movement actors to weaken constitutional guarantees of equal citizenship. It remains to be seen how far this transformation will go.

Very far is the position for which Heritage advocates in a report published immediately after B.P.J. in which Heritage attacks gender-egalitarian funding of sports as “feminist social engineering” and argues for revising Title IX to respect natural sex differences in sports, citing women’s interest in yoga and cheerleading rather than competitive sports.

Reva Siegel is Nicholas deB. Katzenbach Professor, Yale Law School. You can reach her by e-mail at reva.siegel@yale.edu.  Mary Ziegler is Martin Luther King Jr. Professor of Law at the University of California at Davis. You can reach her by e-mail at mziegler@ucdavis.edu.