As we previously reported, the Supreme Court ruled in West Virginia v. B.P.J. that West Virginia’s law barring biological males from competing on girls’ sports teams is constitutional. That was the right call in every conceivable way. I’d planned to write an article about Justice Clarence Thomas’s concurring opinion. Still, I need to address Ketanji Brown Jackson’s dissent, which competes for most spectacularly dumb pieces of legal reasoning to emerge from the court in recent memory with every other opinion she’s written.
“I agree with my colleagues that her [sic] Title IX claim fails,” Jackson began. Right out of the gate, she concedes the result. But then she spends pages arguing that Title IX should protect a biological male competing on a girls’ team, essentially insisting the law’s application is wrong even as she admits the outcome is correct. That’s not analysis. That’s motivated reasoning in search of a destination.
Her argument gets more tortured from there. Citing Bostock‘s reasoning, Jackson argues that B.P.J. “suffers discrimination on the basis of sex — yes, sex assigned at birth — when she [sic] is excluded from the girls’ team because she [sic] was assigned male at birth.”
By that same reasoning, she says, “a boy who was assigned male at birth” is also excluded from the girls’ team “because he was assigned male at birth.” So every male is being discriminated against on the basis of sex because they can’t join the girls’ team? Seriously? Under Jackson’s framework, the mere existence of sex-separated sports constitutes sex discrimination. That’s not even a civil rights argument. That’s an argument for eliminating women’s sports entirely. But that’s not what Jackson is arguing. Jackson is arguing that even though sex-separated sports are inherently discriminatory, the remedy isn’t co-ed sports; it’s letting males play on women’s sports just because they “identify” as girls.
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Then Jackson ventures into stereotype territory, arguing that “a transgender woman penalized for being perceived as aggressive has experienced discrimination ‘on the basis of sex’ just as much as a cisgender woman has.”
What she’s trying to do here is dismiss the fact that male athletes consistently outperform their female competitors when they join their teams. We’ve seen time and again that men join women’s teams and win competitions. It’s not because they’re more aggressive; it’s because males and females are built differently.
The most revealing moment comes when Jackson insists “the majority is wrong to suggest that the term ‘sex’ in Title IX ‘cannot plausibly be interpreted to refer to anything other than biological sex.'”
Clearly, she’s not a biologist.
Congress passed Title IX in 1972 to give biological women equal opportunities in education and athletics. The reason men and women compete in separate sports teams is simple: biology. Men develop greater muscle mass and strength, higher bone density, larger hearts and lungs, higher hemoglobin levels for oxygen transport, and faster sprint speed after puberty. These are not contested facts. They are the entire reason women’s sports exist as a distinct category.
Jackson’s dissent never engages with any of that. She concludes instead that Title IX “makes room for individuals to live in the gender they choose” and “cares not just about sex assigned at birth but also about individuals’ ability to match (or not) their gender presentation to their gender identity.”
The legislators who passed Title IX in 1972 would have had no idea what any of that means.
Back to Justice Thomas. These two sentences are smarter than anything Justice Jackson has ever said or written: “Men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable ‘biological’ characteristic … it is binary; and ‘man’ and ‘woman,’ ‘boy’ and ‘girl,’ are the terms that correspond to adults and children of each sex.”
That’s it. Thomas needed a handful of sentences to say what everyone already knows.
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