The BPJ Majority Adopts the Bostock Dissenters' Methodology (and Some Thoughts About Equal Protection)
Justice Kavanaugh's opinion for the Court in West Virginia v. B.P.J. is a cultural warriors' mixed bag. In addition to making clear how important he thinks girls' and women's participation in competitive sports is, he includes some trans-inclusive language at the end of his opinion. At the same time, however, he repeatedly uses the term "biological male" when referring to transgender girls and women, and not just when it's relevant to parsing the challenged policies. In so doing, the lead opinion sides with the ongoing national anti-trans panic. That said, I prefer the tone of Kavanaugh's majority to the gratuitously and vehemently anti-trans concurrence of Justice Thomas. I suppose the best thing that can be said about that concurrence is that Justice Alito didn't join it.
What about the substance? Let's start with the Title IX claim, which was at issue in B.P.J. but not the companion case of Little v. Hecox (which, as the dissent contends, should have been dismissed as moot anyway). It's notable that none of the nine Justices endorsed B.P.J.'s contention that Title IX forbids exclusion of at least some transgender female athletes from girls' and women's sports. It might therefore seem like the Title IX claim was very weak. I disagree.
B.P.J. apparently conceded that "sex" in Title IX means "biological sex" or what might less insultingly be called "sex assigned at birth." As Justice Jackson argues in her partial dissent, however, it is not obvious that, in the absence of the concession, that is the correct way to construe the statutory term. Unfortunately, the majority does not simply rely on the concession but says (in what perhaps might be characterized as dicta in future cases) that "sex" actually means "biological sex." However, its reason for doing so is at odds with Bostock v. Clayton County.
The Bostock dissenters argued that discrimination on the basis of sexual orientation or transgender status does not constitute discrimination based on sex because the Congress that enacted Title VII in 1964 would not have understood the prohibition in that way. Justice Gorsuch, writing for the Bostock majority and true to a first principle of textualism, rejected that methodology. As Justice Scalia wrote for the Court in the Oncale case in language that Justice Gorsuch quoted in Bostock, "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." By focusing on the subjective intentions and expectations of the Congress that enacted Title IX, the B.P.J. majority adopted the methodology of the Bostock dissenters, which is not entirely surprising, given that Justice Kavanaugh and two other members of the B.P.J. majority were in dissent in Bostock.
Justice Gorsuch's B.P.J. concurrence does a passable job of reconciling the Title IX holding with his own opinion in Bostock by focusing on the Javits Amendment, which provides specific authorization for sex-segregated sports teams, but that does not explain why he (or Chief Justice Roberts, who is the other member of the B.P.J. majority who was in the Bostock majority) signs onto all of the Kavanaugh majority opinion--including its discussion of the definition of sex in Title IX.
Turning to the constitutional issue, I am relieved that the Court did not rule that discrimination on the basis of transgender status is subject to only rational basis scrutiny, as three Justices indicated they would do in United States v. Skrmetti, and as Justice Thomas reaffirmed was his view in B.P.J. Thus, I am also relieved that the Court did not say that ascertainability at birth is a necessary condition for finding that a classification is suspect or semi-suspect. As I noted here before the oral argument, the amicus brief to which I contributed explained why doing so would have been badly mistaken.
The constitutional analysis is problematic otherwise, however.
The majority opinion makes what I regard as a logical error in one of the reasons it gives why the challenged policies satisfy intermediate scrutiny. The Court acknowledges (as it must) that the policies draw distinctions based on sex and are subject to intermediate scrutiny on that basis. The Court says the policies satisfy such scrutiny because safety and inclusion in fair competition are important interests that sex segregation substantially advances in light of on-average physical differences between males and females.
In the course of reaching that conclusion, the Court rejects the notion of an as-applied equal protection challenge. As I argued on the blog after the oral argument and as Justice Sotomayor explained at length in the principal dissent in B.P.J., the Court was wrong to do so. I understand Justice Kavanaugh's reasoning in saying that focusing on a sub-class converts the intermediate scrutiny requirement of a substantial relation between means and ends into something more like the strict scrutiny requirement of least restrictive means. However, the cases Justice Sotomayor cites do indeed support the possibility of an as-applied equal protection challenge, and the majority doesn't address them except in a footnote that I find inadequate.
In any event, even assuming the Court is correct that there's no such thing as an as-applied equal protection challenge, that's at most a reason to reject the claim that the challenged policies amount to unconstitutional discrimination based on sex. Yet the majority says (in the final paragraph on page 23 of the slip opinion) that its reasons for concluding that the policies satisfy intermediate scrutiny with respect to sex also suffice as reasons for concluding that the policies satisfy intermediate scrutiny with respect to transgender status. But that doesn't follow. If one assumes (as the Court does for the sake of argument in this part of its opinion) that the challenged policies discriminate based on transgender status, then one is necessarily examining the policies as applied to trans athletes. If so, then the fact that the policies satisfy intermediate scrutiny with respect to the much larger class would not be dispositive. Thus, the Court is making a logical error when it says that the policies with respect to trans athletes satisfy intermediate scrutiny (if it applies) "for the reasons already explained."
Accordingly, the Court appears to lack a sound reason for rejecting the dissenters' proposed solution: remand to the district court for a trial at which evidence is introduced and evaluated to determine whether the challenged policies can withstand intermediate scrutiny. Such a trial is not necessary if the question is whether the policies in general satisfy such scrutiny. The majority is correct (and I don't read the dissent to disagree on this point) that we don't need a trial to conclude that sex-segregated sports are generally constitutional.
But insofar as the majority allows for the possibility of a challenge to the policies as applied to trans athletes, the policies might or might not be able to satisfy intermediate scrutiny, based on whether, as a factual matter, trans female athletes have competitive advantages that implicate the interests in safety and fair competition. The answer might be yes. Or it might be that the advantages are sufficiently variable and unpredictable that a blanket policy is justified. But the dissenters make a good point when they note that genuine intermediate scrutiny would require looking to actual facts.
The majority's willingness to decide the matter without the development of a factual record suggests either an extension of the logical error I identified above or an alternative rationale. The latter is plausible, given that the majority makes plain that, in reliance on Skrmetti, it doesn't regard the policy as discriminating on the basis of transgender status in the first place.
And that seems to be the core problem with both Skrmetti and B.P.J. To say that a policy that discriminates based on "biological sex" does not discriminate based on transgender status seems almost willfully obtuse with respect to what transgender status is.
-- Michael C. Dorf