On The Other Side Of The Looking Glass With B.P.J. v. West Virginia

A debate about the meaning of "biological sex" on NPR.

This morning, I received an invitation to go on AirTalk, a Los Angeles NPR show, to discuss B.P.J. v. West Virginia. I was somewhat hesitant, as I knew this would not be a friendly forum. Still, I agred. I've gone on Larry Mantle's show many times over the years, and have always found him to be a fair host. The other guest would be Jennifer C. Pizer, Chief Legal Officer and Eden/Rushing Chair for Lambda Legal. Pizer was counsel in B.P.J.

The interview was surreal. I felt like I was on the other side the looking glass. Much of the discussion turned on my use of the term "biological male." I encourage you to listen to the entire exchange, though for those who prefer to read, I've included excerpts from the transcript below. I add some brief comments at the end.

Jennifer Pizer:  I think there were some real mistakes in the way the analysis was done in this case, but the bottom line is that the, the equal protection test, when it comes to sex discrimination, the court has used what's called intermediate scrutiny, so the government can justify different treatment of women and men as groups, if the government can identify an important objective that it is trying to further with this distinction, and if the classification it's using is closely enough related to that goal, and in this instance, Justice Kavanaugh said that, well, they're interested interests in competitive fairness, as well as physical safety, those are important, and that this, this distinction based on biology, as he defines it, as he seems to understand it, that it's closely enough related, and the fact that that the two transgender girls, or young woman, in the case of the Hecox case, the fact that that they are excluded without a careful look at who they actually are and whether they, whether they have any, any physical advantages based on having whatever the sex was designated at birth, that's not to be considered, which we think is, which we think is an error, but that was the main basis of of the majority decision.

Larry Mantle: Jenny does, does, and maybe I'm missing the mark here, but does much of this come down to the lens of anatomy versus gender identity? Or are these legal issues that you're talking about, do those take precedence over this sort of issue of, of someone's, you know, anatomically what they look like versus how they identify.

Jennifer Pizer: That's the core question for sure. I think the what the majority is doing is using a very simplified, simplified to the point of being being inaccurate understanding of the term that it keeps being used is is biological sex, somebody's biologically male or biologically female, but but sex is actually, and the way our bodies develop is made up of lots of different things, so the the classification that these state laws are using is what was the sex designated at birth and written on your birth certificate. Well, that's based on some observation of the infant's anatomy, but then we develop based on what are our chromosomes. How does, how does our body react to hormones? What kind of puberty do we go through? So, for most girls and most boys, when they go through puberty, bodies develop in different ways based on hormones. For these transgender girls, they didn't go through a male puberty and develop the way boys generally develop, and so to the classification is supposed to be about safety in school sports based on the anatomy that the student has at that age. These particular transgender girls didn't go through the development that's generally relevant to whether there is a competitive advantage or disadvantage, and one of the, one of the errors that we think the majority makes here in the equal protection analysis is to to decide that the equal protection claim fails without looking at the detailed facts, actually testing them in the district court. The district court made a decision based on the papers. Usually, if the, if an appellate court says, "Well, there's, there's disputed facts here, we can't tell what facts are right and wrong. Usually, you send it back down for the trial court to consider those facts, and in this instance the Supreme Court did not do that.

Larry Mantle:
We're talking with Jennifer Pizer, Chief Legal Officer and Chair for Lambda Legal, also with us, Professor Josh Blackman, Constitutional Scholar at South Texas College of Law, Houston. Josh, thank you for being with us again. Your reading of this, and what, if anything, it tees up for future Supreme Court review when it comes to transgender athletes.

Josh Blackman:
Sure, both of these cases today came from red states, Idaho and West Virginia, that tried to exclude biologically male athletes from female sports, the sort of next shoe or perhaps cleat to drop is in blue states like California, where they allow these transgender athletes to compete. I can see the Trump administration taking action against California, New Jersey, Maryland, and so on, arguing that permitting these biologically male athletes compete violates both Title Nine, not quite the Constitution, but it at least violates Title Nine under the understanding of sex that the court adopted today.

Larry Mantle:
All right, and Jenny, just want to clarify, when we talk about biologically male, I know that that is, that's a nuanced term. How would you interpret that term,

Jennifer Pizer:
The way it's being used here is, how was an infant designated at birth? What we know in terms of biology and medical science is that the way our sex develops and the way we understand our gender is a function of lots of things, including, you know, chromosomes and hormones. How do they interact? So, the one of the core problems I think with these decisions is that it doesn't grapple with who trans, who transgender people are, and so for these girls, who did not go through a male puberty and did not develop as cisgender as most boys do, they don't have the physical advantage that is the core of what the court seems to be concerned about.

Larry Mantle:
So, would they be considered, then, Jennifer, in the way you're putting it, as biologically female? Well,

Jennifer Pizer
I think they, they, they should be, or more so the term biological male and biological female just seems so simplified to not be helpful here. Okay,

Larry Mantle:
Okay. Let me go back to Josh Blackman. So, Josh, what do you think would be the Supreme Court's receptivity to take up a case if the Trump administration were to challenge a state like California, which allows transgender girls and women to participate in girls' and women's sports.

Josh Blackman:
Well, I think the dynamics are somewhat flipped, and I take my friend's point about the term biological male and female. What the court said today is these are issues in which people disagree, and under the relevant constitutional standard, the state gets some deference in how they sort of define these issues, right? If West Virginia and Idaho want to look at the child's sex, and they base it based on what was seen at birth in genitalia, they don't consider how they went through puberty, and so on. That's a determination they can make. On the flip side, California has adopted this sort of varied approach, where each person is reviewed based on a host of different factors. I don't know if the court will then defer to how California does it, or see that the definition of biological sex in Title IX, which is not based on sort of the California vision of everything happened, but genitalia, and even if a classification affects 99 or 98% of people, whatever the percentage is, that that might be good enough for government work, and that might exclude transgender athletes from the ability to participate in female sports,

Larry Mantle:
And so for those states where transgender athletes are not allowed to compete in women's sports, do they have any alternative? Josh, do you know for those women and girls to be able to compete? I mean, would they have to compete on a men's team, or do you know how they deal with that.

Josh Blackman:
I mean, presumably, for again, I know my friends don't like the phrase, but for biological males, they can compete on the male sports teams as they've done before. I don't think they'd be creating a separate league. I think that would create even more, more objections and more concerns, but I think this is an area where the court's ruling does make a difference, you can imagine with a very different court that could be shooting rulings as well. You know, maybe the state should follow the practice of the International Olympics Committee, where if there's a certain hormone level or a certain type of puberty changes, and so on, that person can be considered biologically male or female. The Kavanaugh opinion is pretty, pretty clear on this, and I'm not sure if there's much wiggle room, we can always amend Title Nine and amend the statute. States have created various protections under their own laws, but unless the laws change, I just don't see many, many paths, and perhaps there's something we're aware of here.

Larry Mantle:
All right, Jenny, just a final thought on this. I mean, the CIF [California Interscholastic Federation] in California, for example, when you're talking about individual athlete sports, if a transgender athlete competing with girls or women is victorious, then there will be the whoever was the runner up who's not transgender will also go up and receive the honor, that's kind of the way that they've threaded the needle in this. Are there other alternatives that you see to that approach CIF takes?

Jennifer Pizer
Oh, I mean, I think for our client in West Virginia, she, you know, really, she just doesn't get to participate, you know, as a practical matter, I mean, she, she's a girl, she lives her life as a girl. Among the things that just seems disappointing about this analysis is that under Title Nine, and, and also, as, as was mentioned, as the Olympics are doing, different sports are different, and there's and they title nine did contemplate setting up different rules for different sports by people who know something about the particular sports, Justice Kavanaugh writes, well, judges aren't the right people to figure this out, and I would say yes, that's right, it isn't about judges to figure this out, where there's where there's different treatment based on sex, which they acknowledge is happening here. Then the state should be showing why the exclusion furthers the interest that the state has. Why does excluding our client serve the interests of fairness, if her body has developed like other girls, I mean, she's not running track with her, with her genitals, right? It sort of doesn't matter what's in her pants, what matters is how her body has developed, which is based on the medical course of treatment she's under. So, I just think it misses the mark, but as, as, as my colleague here has pointed out states are developing different approaches, and a lot more education is happening, so people can understand more, and I think the majority does not see transgender people for who they are, as Justice Sotomayor's dissent explains, and it's not consistent with the sex discrimination doctrine we've had under the equal protection clause in the past, so I think there's a lot more work to be done as the bottom line.

Larry Mantle:
Jenny Pizer, thank you, as always. Appreciate you being with us. Thank you, Jenny Peiser, Chief Legal Officer, Chair for Lambda Legal, and our thanks to Professor Josh Blackman. He's a constitutional law specialist at the South Texas College of Law in Houston.

--

Throughout this entire interview, I felt like I was on the other side of the looking glass. My fellow guest and the host were using language and words that were at odds with reality. I did my best to keep my composure and be respectful. But all I could think about was Justice Thomas's concurrence:

Second, as the Court recognizes, this case concerns "biological men" and "boys who identify as girls." Ante, at 10, 27. Men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable "biological" characteristic, see ante, at 10; it is binary; and "man" and "woman," "boy" and "girl," are the terms that correspond to adults and children of each sex. See A. Byrne, Are Women Adult Human Females? 177 Philosophical Studies 3783, 3786–3787 (2020). To use language to obscure reality—to show "indifference regarding the truth"—is to lie to the public and cease to treat our fellow citizens"as equal[s]." J. Pieper, Abuse of Language—Abuse of Power 17, 21 (1992).

We have a duty, above all else, to the truth.

I note that the majority did not use the neologisms "cisgender" or "transgender girls." I'll have more to say about this topic in a future writing.