Last Wednesday’s oral argument in United States v. Skrmetti was promising for many reasons: it appears that the Supreme Court will rule that Tennessee’s law protecting minors from sex-trait modification procedures (which proponents often call "gender-affirming care") does not violate the Constitution’s equal protection clause, which bans sex discrimination.
Still, the oral argument left open a big question: is the Supreme Court going to let women's sports die?
Justice Kavanaugh asked the Biden administration, "Would transgender athletes have a constitutional right, as you see it, to play in women's and girls' sports…notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes?"
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The Biden administration’s response? "[W]hen it comes to access to sex-separated spaces, like sports and bathrooms, courts already recognize that those are facial sex classifications that trigger heightened scrutiny."
Those words mark a sea change from established precedent, which states that treating the sexes differently is not discrimination that warrants heightened scrutiny as long as the treatment is equal and related to the innate biological differences between men and women. And this can’t be smeared as some "far-right" interpretation: even liberal Justice Ruth Bader Ginsburg opined in United States v. Virginia that "[p]hysical differences between men and women…are enduring," in such a way that "[t]he two sexes are not fungible."
This is what the Biden administration is rejecting. Moreover, it is going so far as to claim that the Constitution’s demand for sex equality means that women’s sports and women’s spaces are already constitutionally prohibited – unless women can defend themselves in court.
Women have advocated equal treatment in the past, and we will advocate for equal treatment today, but, no matter how strong we are, we don’t have unlimited resources. How many rural women’s swim teams have the ability to find a lawyer who’ll take such a case on? How many middle-school girls’ hockey teams want to spend their money or energy suing those who attempt to destroy their sex-protected spaces?
The truth is, forcing women to go to court if they want to protect their own interests would end women’s sports as we know them. No more girls’ volleyball teams or women’s soccer leagues. Girls’ athletic scholarships? Gone. The generations of women who have been able to gain confidence in themselves through single-sex athletics? Relegated to history. And while they’re at it, the Biden administration’s logic doesn’t stop at sports and extends to all women’s spaces, so say goodbye to women’s dorm rooms, women’s bathrooms, and women’s prisons.
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None of the Supreme Court justices – even the ones who are likely to side with Tennessee – seemed to raise these concerns in the oral argument. But if the Biden administration’s logic holds, it would be the end of every policy that treats men and women as equals without treating them as biologically identical. That’s a scary prospect for women everywhere: if the very concept of women-only spaces is subject to constitutional scrutiny, women who want the dignity of our own spaces would become subservient to males who are bigger, taller, faster, and stronger than us.
Leftist ideologues may claim the mantle of progress, but they are actually arguing for regression when the conclusions of their gender ideology wind up stripping women of our sex-based rights.
