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Court is likely to define ‘sex’ as ‘biological sex’ in subsequent cases, expert says
The U.S. Supreme Court’s recent ruling that upheld bans on men in women’s sports could strengthen female-only spaces, a Duke University law expert told The College Fix.
In the consolidated cases of West Virginia v. B.P.J. and Little v. Hecox, the Court upheld laws in West Virginia and Idaho that restrict women’s sports teams to biological females.
The lower courts blocked both laws, finding that they were unconstitutional. The Supreme Court reversed these rulings.
The justices ruled 9–0 that the laws do not violate Title IX. They split 6–3 on the Equal Protection Clause, with Justices Sotomayor, Kagan, and Jackson dissenting.
Beyond sports, the decision raises significant questions regarding the future of legal jurisprudence on Title IX and the Equal Protection Clause, as well as state efforts to restrict sex-segregated facilities to biological sex.
Duke University Professor of Law Doriane Coleman told The College Fix the Court is likely to define “sex” as “biological sex” in subsequent cases.
This means “that the Court will probably find that Congress also meant to allow schools and universities to segregate people on that basis [sex] in locker rooms, showers, and changing areas.”
However, she said that this does not mean the outcome will be the same in every context.
Coleman “specializes in interdisciplinary scholarship focused on women, sports, medicine, and law,” according to Duke Law School. In her book “On Sex and Gender,” and in several law review articles, she has written about the “evolving definition, and the implications of this evolution for society and law,” according to the school.
She is also a co-director of the school’s Center for Sports Law and Policy and chair for the Athletic Council.
Asked whether sex-segregated spaces are constitutional, Coleman said, “some aspects of the analysis will track and others may not.”
“…all nine Justices agreed that equality, fairness, and playing safety are important goals and they are likely to say the same about privacy and physical safety,” she said.
In regards to the Court’s 6–3 split, Professor Coleman noted that the justices disagreed over two questions: “(1) whether there’s a close enough fit between the means (separating student athletes by sex) and the ends (achieving the equality, fairness, and safety goals), and (2) whether the Constitution requires lawmakers to distinguish transgender women and girls from sex typical boys and men.”
She added that biology and “performance results” indicate that separating athletes by sex is necessary to achieve equality, fairness, and safety.
This means that we have to “see transgender women and girls as they are biologically.”
The Duke law professor also said that “evidence that connects separate sex locker rooms, showers, and changing areas to privacy and physical safety is different.”
It partly comes from “custom and tradition,” she said, as well as from “the safety issue” and the “fact that women and girls fear opposite sex violence, especially in closed spaces where they might be undressed.”
“The change in the arguments and evidence could cause the justices to line up differently,” Coleman said.
Ilya Shapiro, the director of constitutional studies at the Manhattan Institute, told The Fix, “The Court was absolutely right in saying that in sports, sex matters.”
“Both the Constitution and Title IX protect women’s equal rights and in the case of sports, we segregate by sex to allow women to compete without the obvious physical disadvantages they face relative to men,” he said.
“Simply put, biology counts—whereas it doesn’t in, say, lawyering, which is why we don’t have sex-segregated law firms,” Shapiro said.
