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This week’s Slate Plus bonus episode of Amicus is another entry in our occasional “Dear (Juris)Prudence” series, in which we invite listeners to ask their burning questions about the law and answer them as best we can. Write to [email protected] to pose a question to Dahlia and Mark. This transcript has been edited and condensed for clarity.
Dear (Juris)Prudence,
Can you please critique the reasoning and the effects of the three liberal justices concurring in the Title IX holding of?
—Adena Goldberg
Mark Joseph Stern: There has been a lot of misunderstanding about exactly what the liberal justices did in B.P.J., and I want to clear that up. The three liberals did side with the supermajority in rejecting B.P.J.’s claim that West Virginia violated Title IX by excluding all transgender girls from playing on female teams. But that agreement can obscure a much sharper divergence. For instance, Justice Sonia Sotomayor’s dissent spent 29 pages arguing that these categorical sports bans are likely unconstitutional. She made a strong argument that they violate the equal protection clause, and urged the courts to send this case back down for a trial so that the judge could hear all of the evidence and render a decision. Of course, the supermajority did not heed her advice.
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Then Sotomayor spent three pages on the Title IX question, concurring with the majority that West Virginia’s approach to athletics does not violate Title IX—as the plaintiff presented her argument. Sotomayor explained that the plaintiff “did not dispute” that “sex” in Title IX means “biological sex,” or sex was assigned at birth. And the justice wrote that under this argument, B.P.J.’s Title IX claims must fail, because both Title IX and a later amendment specifically allow for some discrimination on the basis of biological sex. Most notably, they permit sex segregation in school athletics by sometimes requiring the creation of boys’ teams and girls’ teams. Sotomayor did not endorse this definition of sex in Title IX. But because it was the definition conceded by the plaintiff, she agreed with the majority that B.P.J. could be excluded from the girls’ team because her “sex identified at birth” was male.
Justice Ketanji Brown Jackson wrote a separate, solo dissent that expressed serious doubt about the plaintiff’s concession. She explained that she was not at all convinced that Title IX only means “biological sex.” And she wrote about how, in the sex discrimination context, there is a general prohibition against “sex stereotyping”—punishing someone because they don’t conform to stereotypes assigned to their sex. “The prohibition against stereotyping,” Jackson noted, “is difficult to explain fully by reference to sex assigned at birth. A sex stereotype often will but need not have anything to do with an individual’s sex assigned at birth. 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, no matter that the transgender woman’s behavior matches expectations of her sex assigned at birth. Either way, the institution has imposed its gender-based expectations upon her.”
Jackson then wrote that if the court “properly construed” Title IX to go beyond biological sex, then West Virginia’s ban may well run afoul of the law. The state, after all, is forcing B.P.J. to live and play as one sex even though she identifies as another. Jackson didn’t render an ultimate decision on this question, but strongly suggested that she would side with a transgender litigant who presented this argument in a future case. And I think she’s right: Biological sex, or sex assigned at birth, is not the only way to define “sex” in Title IX. I do understand why the liberals concurred on this one narrow part of the supermajority’s opinion. But it is important to remember that they vehemently, emphatically dissented from the supermajority’s evisceration of the equal protection clause.
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