Ascertainability at Birth is Not a Requirement for Suspect Classification Status

In January, the Supreme Court will hear oral argument in West Virginia v. B.P.J. and Little v. Hecox. The cases present the question whether state laws barring transgender female athletes from participation in girls' and women's sports violate Title IX and/or the Fourteenth Amendment's Equal Protection Clause. Lawyers for respondent Lindsey Hecox argue that her case is moot, so there is a chance that the Court will not address it on the merits, but there is no suggestion of mootness in B.P.J., so one way or another the Court will decide at least the statutory question; if the Court rules for the state on the statutory question, it will be unable to avoid the constitutional issue and so would decide both.

There are multiple possible paths to invalidation of the West Virginia ban.

(1) The Court could hold that its 2020 decision in Bostock v. Clayton County is controlling. In Bostock, the Court found that discrimination based on transgender status is forbidden sex discrimination under Title VII. Here, the Court could say that it is likewise impermissible sex discrimination under Title IX.

The primary complication of any such statutory holding is that longstanding regulations under Title IX permit sex-segregated athletic teams. It is possible--indeed, in my view, it is appropriate--to acknowledge sex segregation in sports in general but still find that categorical exclusion of trans athletes from girls' and women's sports is impermissible sex discrimination under Title IX. However, the argument isn't quite as straightforward as in Bostock.

(2) For the same reason, the argument that the state bans violate equal protection as sex discrimination must be sufficiently nuanced to allow sex-segregated athletic teams more broadly. Again, I think that nuance is warranted, but there is a risk that the conservative Supreme Court will not see it that way.

(3) B.P.J. could still win on equal protection grounds if the Court holds that transgender status discrimination triggers heightened scrutiny on its own, regardless of whether it also counts as sex discrimination. A holding along these lines would avoid the nuance needed to explain why the transgender exclusion is impermissible sex discrimination but sex-segregated teams themselves are permissible. Moreover, such a holding would be well warranted.

I say that not just as a blogger, but as a lawyer and a client. I am both counsel and one of the ten constitutional scholars represented as amici in a brief in support of the respondents arguing that transgender status discrimination should trigger heightened scrutiny. As our brief explains, transgender status satisfies all of the criteria the Court's cases identify as relevant to determining whether a classification is suspect or semi-suspect.

But wait. In United States v. Skrmetti, three Justices (Thomas, Alito, and Barrett) said that transgender status isn't a suspect classification. What about that?

Well, yes, that's right, but three is not five. The Court didn't reach the question, which thus remains open.

Moreover, in Justice Barrett's concurrence (joined by Justice Thomas), a key factor that supposedly precluded treating transgender status as suspect was the fact that "it is not defined by a trait that is 'definitively ascertainable at the moment of birth.'" Yet ascertainability at birth has never been a necessary condition for suspect classification status. Those internal quotation marks indicate that Justice Barrett was quoting a Sixth Circuit decision, which in turn, claimed that ascertainability at birth was present in every SCOTUS case finding a suspect classification. But that's mistaken. Religion is a suspect classification; yet, it would be impossible to ascertain at birth the religion to which someone might convert.

Our brief elaborates the doctrinal point at greater length. It also elaborates a point I made in response to Justice Barrett's Skrmetti concurrence shortly after it was handed down earlier this year: application of an ascertainability-at-birth requirement is downright perverse where the classification at issue is transgender status. Here's how we put the point in the brief:

Transgender status reflects a fundamental incongruence between internal gender identity and external sex assignment at birth that nonetheless forms a characteristic that can, as is the case here, form the basis for government classification and discrimination. A transgender girl--an individual assigned male at birth whose gender identity is female--experiences discrimination under the laws in question because of the difference between her gender identity and the sex assigned to her at birth. The basis for the discrimination is the fact that the individual’s gender identity was not externally observable to those assigning sex at birth. To find that the act of "ascertaining at birth"--the assignment at birth that resulted in the discrimination later experienced due to incongruity with that assignment--somehow disqualifies a transgender person from protection from discrimination stemming from that mislabeling is cruelly tautological.

For the rest of the argument, I urge readers to check out the brief, which really is quite brief.

-- Michael C. Dorf