Headline has been changed to reflect ongoing contention about the interpretation of this ruling.
Today, June 30, the Supreme Court has issued its rulings in West Virginia v. B.P.J. and Little v. Hecox, two cases brought from legal questions regarding trans athletes.
The court has ruled “The term “sex” in Title IX, the Javits Amendment, and the Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex.”
This means that nearly all protections for trans people on the basis of gender identity have been rendered null and void, since such protections generally derive from Title IX regulations.
The court continued, arguing that, “The ordinary meaning of the term “sex” at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context.”
In other words, the court is using historical erasure of trans people to commit modern erasure of trans people’s civil rights.
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The court also argued that even if trans people do change their sex, it doesn’t matter for equal protection under the Constitution.
“The underlying medical and scientific premise of the equal protection challenge here is that at least some biological males who identify as female and take puberty blockers or hormones do not retain physical advantages over biological females. That premise is the subject of ongoing medical and scientific debate. Even if true, that empirical claim would not alter the equal protection conclusion set forth above.”
Both of these cases challenged laws which specifically target trans women in sports, without implementing a similar provision to ban trans men in sports.
The plaintiffs were two trans women athletes (one of whom has since graduated), who would be barred from school sports in their stature should their states respective laws be upheld.
The two cases raised the same constitutional question across Title IX and Equal Protection but from different states and with technically different state laws.
That question is whether the legal definition of sex in US law can reflect trans people or must legally act as if they don’t exist.
According to the concurrence by Justice Clarence Thomas:
“Legislatures have many obvious rational bases to keep men who believe that they are women out of teams and private spaces reserved for women.
Second, as the Court recognizes, this case concerns “biological men” and “boys who identify as girls.” 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.”
While on their face the courts seem to be about sports, in effect these cases were always about broad civil rights implications for all trans people in the United States.
The thin legal ground on which trans rights rested prior to today on at the federal level relies on one specific mechanism: expanding the legal definition of sex to include gender identity.
Before these rulings, anti-trans discrimination was considered gender identity discrimination which would be considered a legal subset of sex discrimination.
"The press tends to take these cases at face value in their initial reporting, despite the intent of the cases and their widespread implications on fundamental civil rights for millions of Americans.” says Samantha Boucher, Head of Trans Liberty. “I strongly encourage those writing about this to review the implications very closely and ensure their coverage accurately reflects the real impact."
Seeing as the court has ruled broadly, the protections trans Americans had at the federal level, such as protections against discrimination in employment, housing, healthcare, etc, are now effectively dead in the water. While the court says that this ruling does not affect Bostock, the ideological underpinnings of that ruling have just been declared invalid.
The court’s decision to follow in the UK’s footsteps to claim that the legal definition of sex is based on apparent genitalia at birth, which is all that assigned sex at birth is, has whittled away the basis by which trans Americans have access to anti-discrimination protections.
Further, Justice Thomas's concurrence falsely claims that human biological sex is immutable, putting the weight of the American legal system against trans existence, and ignores the fact that trans people on HRT do largely change their biological sex.
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Of course, the Court doesn’t care that we change our sex when we medically transition, as it chose to abdicate the fielding of science and data on the topic. It did this by claiming that legislatures have to field the data involved in determining if trans people effectively change their sex.
The Court is clear that the Title IX ruling is such because of the specific context of sports and claims that Title VII is different. However, on the equal protection side of the constitutional question, the court has effectively ruled that trans people don’t get equal protection because the Constitution sees us only as our coercively assigned sex at birth.
The full consequences of this decision are wide, and will be hard to predict, but it is safe to say that every trans person has had their rights significantly reduced.
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Editors Note: The article has been changed to reflect that the it was the concurrence and not the court which claimed that biological sex is immutable.