‘Moral Anarchy’: Supreme Court Confronts The Meaning Of Sex In Landmark Sports Cases
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(OPINION) The U.S. Supreme Court heard oral arguments on Jan. 13 in two important cases. The cases could have wide-ranging impact in the country’s ongoing debate concerning gender identity.
In the first case, Little v. Hecox, the State of Idaho is being sued by a biological male identifying as “Lindsay” Hecox who wished to join the women’s cross-country team at Boise State University.
In the second case, West Virginia v. BPJ, the state is being challenged by a male athlete, identifying as a female, known by the initials BPJ.
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Though it’s unwise to formulate a prediction of the Court’s eventual ruling based on oral arguments, it would seem the majority is likely to uphold both Idaho and West Virginia’s laws requiring men’s and women’s sports to include biological men and women, respectively. There were several telling moments in the oral arguments.
Justice Sanya Sotomayor, for instance, pressed the possibility of “mootness” of the case against Idaho. Hecox had filed a petition urging the Supreme Court to throw out the case, reversing the 9th Circuit Court’s decision to suspend Idaho’s law.
This was requested in light of personal family matters and the increased scrutiny. The justices rejected that, but Sotomayor’s line of inquiry might reflect her own uneasiness about the case’s outcome.
In both cases, there was quite a bit of back and forth about whether transgender people are a protected class, particularly in the case of participation in sports. After last year’s Skrmetti decision seemed to dismiss this line of argument, the more liberal justices seemed to argue for it while the lawyers defending both states laws illustrated the difficulty of and lack of precedent for an ever-increasing subdivision of protected classes.
Justice Alito seemed to catch Hartnett in a logical cul-de-sac with a hypothetical question about participation:
ALITO: Do you agree that a school may have separate teams for a category of students classified as boys and the category of students classified as girls?
HARTNETT: Yes, Your Honor.
ALITO: If it does that, then is it not necessary for there to be, for equal protection purposes, if that is challenged under the equal protection clause, an understanding of what it means to be a boy or a girl or a man or a woman?
HARTNETT: Yes, Your Honor.
ALITO: And what is that definition for equal protection purposes? What does, what does it mean to be a boy or a girl or a man or a woman?
HARTNETT: Sorry, I misunderstood your question. I think that the underlying enactment, whatever it was, the policy, the law … we’d have to have an understanding of how the state or the government was … understanding that term to figure out whether or not someone was excluded. We do not have a definition for the court, and … we’re not disputing the definition here. …
ALITO: Well, how can you, how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes? …
Suppose this school that has a boys … track team, and a girls track team … and a student who has the genes and the reproductive system of a male and had those at birth and has never taken puberty blockers, never a taken female hormones, never had any gender-altering or -affirming surgery says, “Nevertheless, I am a woman. That’s who I am.”
Can the school say, “No, you cannot participate on the girls team?”
HARTNETT: Yes, they can do that.
Here it would seem those who oppose the state laws banning biological males’ participation in women’s sports admit that a male athlete who does not pursue medical transition but, nevertheless, desires to play in women’s sports should be excluded based on biological differences, yet are requesting that male athletes who do undergo medical transition should have that right.
The most shocking moment in the arguments was likely when ACLU lawyer Joshua Block was pressed on a definition of sex — and he could not answer. In a case that depends on a finding that seeks relief from discrimination based on sex, he could not define it. Here the entire transgender movement runs up against moral realities. If you cannot define what a man or a woman is, you cannot, therefore, define what discrimination against a man or a woman is.
This is where the case for the laws in Idaho and West Virginia have a counter argument of discrimination. American law, especially since the 1970s, has said that discrimination against women because they are women is unconstitutional. Yet allowing a biological male to take the place of a biological female simply because he believes himself to be something different than he is is the very definition of discrimination.
These cases are important, and we should pray for wisdom for the Justices as they deliberate and issue their rulings.
Christians understand what science reveals: Masculinity and femininity are fixed moral categories that God has made and declared to be good. When societies reject God’s moral law — woven into the design of the universe — moral anarchy results.
God’s people must boldly declare, to a confused world, what is true and good. And at the same time, we must communicate the good news of the Gospel to those who disagree, praying that their minds will be turned once again toward truth.
This piece has been republished with permission from Baptist Press.
Daniel Darling is director of the Land Center for Cultural Engagement at Southwestern Baptist Theological Seminary and church engagement strategist for the Ethics & Religious Liberty Commission.