Should those with a mental illness be allowed to scare and stalk our wives and daughters in pursuit of their disease? Can public schools protect our young ladies, or shall mental illness supersede the law, biology, and common sense?
Sugar And Spice and Everything Nice
What are little girls made of? While the nursery rhyme says “sugar and spice and everything nice,” the truth really comes down to biology.
The question before the Court in these cases is whether, under Title IX and the Equal Protection Clause of the Fourteenth Amendment, schools may maintain women’s and girls’ sports teams for biological females, i.e., may schools determine eligibility for female sports based on biological sex? In the past six years, 27 States have enacted laws that maintain female sports for biological females.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Are girl’s and women’s teams only for the female of the species? At least 27 states have enacted laws saying so. West Virginia’s law has been challenged.
In 2021, West Virginia enacted the Save Women’s Sports Act, which prohibits male students from playing on female teams. … The law specifies that sex is determined by biology. … The legislature expressly found that prohibiting biological male participation in female sports is necessary to promote equal athletic opportunities for women and girls.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Seems pretty straightforward to me. Male students are prohibited from playing on female teams and that distinction is made by biology.
Respondent B. P. J., who identifies as female, is a biological male …
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
I can claim to identify as a tuna-fish sandwich, but that does not make it so. Neither is what a person thinks about themselves a scientifically or legally established fact.
B. P. J. has sought to participate on the girls’ cross-country and track-and-field teams at school. B. P. J. sued West Virginia and relevant officials for alleged violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
B.P.J. is a boy who wants to play on girl’s athletic teams. He claims that West Virginia’s law prohibiting this violates both federal law and the Fourteenth Amendment. What did the courts think about his claims?
The U. S. District Court for the Southern District of West Virginia granted summary judgment for the State on both claims. On appeal, the Fourth Circuit reversed on the Title IX issue and remanded for further fact-finding on the Equal Protection Clause claim.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
So this District Court said the State was correct on both claims, but the Fourth Circuit disagreed, at least on the federal law question.
West Virginia wasn’t the only State sued. The facts in both of these cases were very similar.
In 2020, Idaho enacted the Fairness in Women’s Sports Act, which prohibits male students from participating on female teams. … The Idaho law states that sex is determined by biology. ... And the law declares that “separate sex-specific teams furthers efforts to promote sex equality . . . by providing opportunities for female athletes.” … It also recognizes the physical differences between biological males and biological females. … The law further found that the benefit “that natural testosterone provides to male athletes is not diminished through the use of puberty blockers and cross-sex hormones.”
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Sounds almost identical to the West Virginia law. I think you’ll find the complaint similar, but not identical.
Respondent Hecox, who identifies as female, is a biological male as defined by [the Idaho law]. Hecox competed for the women’s club soccer team, and tried out for the women’s Division I track and cross-country teams. Shortly after Idaho enacted the Fairness in Women’s Sports Act, Hecox sued Idaho and relevant officials, alleging a violation of the Equal Protection Clause. The U. S. District Court for the District of Idaho granted a preliminary injunction barring enforcement of the Fairness in Women’s Sports Act, and the Ninth Circuit affirmed. …
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Mr. Hecox doesn’t argue a Title IX violation, only an Equal Protection Clause violation.
Title IX
Let’s start by looking at the arguments around Title IX.
Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Keep that last few words in mind because federal financial assistance is actually a very important point in this case.
Two years after Title IX became law in 1972, Congress passed the Javits Amendment, which directed the then-Department of Health, Education, and Welfare (HEW) to promptly issue “regulations implementing the provisions of ” Title IX with respect to “the prohibition of sex discrimination.” … The amendment further specified that the regulations “shall include with respect to” “athletic activities reasonable provisions considering the nature of particular sports.” ... (emphasis added). In 1975, HEW promulgated comprehensive regulations requiring that schools provide “equal athletic opportunity for members of both sexes” and authorizing “separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
So the claims in this case are not so much a violation of federal law, but of federal regulations. That too is important, since federal regulations are not the supreme law of the land.
The term “sex” in Title IX, the Javits Amendment, and the Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term “sex” at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context. …
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
The phrase “biological sex” is redundant. After all, sex is defined as:
either of the two major forms of individuals that occur in many species and that are distinguished respectively as female or male especially on the basis of their reproductive organs and structures
Sex – Merriam-Webster’s Dictionary Online
Since sex is determined by the biology of the individual, “biological sex” is, as I said, redundant.
In addition, the Title IX regulations allowed separate sports teams precisely because of the inherent physical differences between biological men and biological women.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
So the question isn’t about the separation of sports teams based on sex, but apparently the definition of “sex” itself.
While B. P. J. agrees that Title IX permits schools to maintain separate female and male teams and to prohibit most biological males from playing on women’s and girls’ teams, B. P. J. argues that schools must make an exception to that general rule for biological males who identify as female and have taken puberty blockers or hormones.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Apparently B.P.J. believes that male and female are defined at puberty, not conception. Why else would males who have taken puberty blockers be considered female? Is that supported by the law?
But the texts of Title IX, the Javits Amendment, and the Title IX regulations do not support that argument, and do not speak to that issue in a way that could properly be interpreted to require schools to allow biological males to participate in women’s and girls’ sports.
B. P. J. argues that if the regulations authorize a school to limit female sports teams to biological females without exception, then the regulations are not “reasonable” as required by the Javits Amendment,
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Is it reasonable to allow males to participate in female sports? That is the real question. As Justice Kavanaugh wrote in the majority opinion:
The Court concludes that separate sports teams for biological males and biological females are reasonable given the inherent physical differences between the sexes. In assessing the reasonableness of the regulations, the Court must recognize the distinctiveness of competitive sports—and the safety and competitive fairness issues that can arise when females are forced to compete against males.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
You know what is unreasonable, B.P.J.’s other Title IX assertion.
B. P. J. contends that the school’s policy violates Title IX because the policy effectively excludes B. P. J. from any competitive sports teams at the school.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
No one that I am aware of is prohibiting B.P.J. from all competitive sports, only sports for which he is not qualified, as the court pointed out.
While it is an unhappy occasion whenever a student who wants to play school sports cannot do so, the Title IX regulations guarantee only “equal athletic opportunity.”
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Title IX does not guarantee you a spot on a team, only equal athletic opportunity.
Equal Protection Clause
The second claim of these cases is that they violate the Equal Protection Clause of the Fourteenth Amendment.
The argument that the challenged laws unconstitutionally discriminate against transgender individuals is unavailing. Under this Court’s decision in Skrmetti, the challenged laws do not classify based on gender identity or transgender status, … but instead on the basis of biological sex. The classification at issue readily satisfies rational basis review or intermediate scrutiny.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Justice Thomas filed a concurrence which makes an additional point:
… as the Court recognizes, this case concerns “biological men” and “boys who identify as girls.” … Men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable “biological” characteristic, …; it is binary; and “man” and “woman,” “boy” and “girl,” are the terms that correspond to adults and children of each sex.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
A man is not a woman simply because they believe they are. This biological fact is at the heart of this case, and all trans-gender issues in this nation. Sadly, that basic fact is often lost, even on Supreme Court Justices. Before I get into that discussion, Justice Gorsuch made another point I need to get back to. That of federal financial assistance.
Federal Financial Assistance
What seems lost in most conversations about Title IX is the fact that the law is not about regulating sports, but about spending money. As Justice Gorsuch wrote in his concurrence.
“Title IX was enacted as an exercise of Congress’ powers under the Spending Clause.” …
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
The question no one seems to have asked is if Congress had the authority to spend money on education? The answer is “no.”
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;
U.S. Constitution, Article I, Section 8, Clause 1
Education is not the payment of debts, the common defense, nor the general welfare of the United States. The ‘United States’ is a proper noun referring to the union of states whose government is seated in Washington, D.C. So all of this started with Congress embezzling trillions of dollars to influence and regulate something they are prohibited from regulating.
That provision of the Constitution does not allow Congress to regulate conduct; instead, it only authorizes Congress to spend money. … Of course, Congress may seek to condition the funds it gives to others. … But much as with any contract, a funding recipient must “ ‘voluntarily and knowingly’” assent to those conditions for them to bear any legal force.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
And as with any funding contract, the funder must be legally authorized to spend money on the contract. Since the Tenth Amendment, the Necessary and Proper Clause, and the Spending Clause make clear, Congress can only legally spend money on three things, and education is not one of them.
It All Starts With a Lie
Both Justices Sotomayor and Jackson wrote opinions where they concurred in part and dissented in part with the majority opinion. However, both of their dissents start with a lie.
Respondent B. P. J. is a transgender girl who wants to live her life consistent with her gender identity.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
B.P.J. is not a girl, he’s a boy. He may think he’s a girl, but that does not make it true. As Justice Thomas pointed out.
Men and boys with gender dysphoria are not women or girls, even if they believe that they are.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Justice Sotomayor’s opinion includes another lie as well.
When B. P. J. was 11 years old, she sought the opportunity to do what she and so many other children love to do: play sports. In order to do so, B. P. J. needed to turn to litigation because West Virginia has banned all transgender girls from playing in girls’ sports from middle school through college.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
I am not aware of a single person that claims that B.P.J. should be banned from playing sports. Only that he not be allowed to play on girls teams. Put these two lies together, and we appear to have the bedrock on which Justices Sotomayor and Jackson rest their opinions, but the lies aren’t done.
Applying a form of heightened scrutiny divorced from this Court’s cases, the majority holds that transgender girls like B. P. J. who wish to play girls’ sports are not protected by the Constitution, even if B. P. J. is correct that neither of the State’s interests is furthered by their exclusion.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Justice Sotomayor appears to claim that B.P.J. is somehow not protected by the Constitution because he wishes to play on the girls team. The Constitution doesn’t protect a person’s right to play on a particular team though, especially when doing so deprives the others on the team of their rights to the equal protection of the law.
Meanwhile, Justice Jackson in her opinion promulgated another lie.
As the majority notes, B. P. J. does not argue that “sex” in Title IX means anything but “biological sex,” that is, sex assigned at birth.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Sex is not “assigned” at birth, it is a function of conception. Sex is determined when the sperm enters the egg. If the sperm has an X chromosome, the baby is a girl. If the sperm has a Y chromosome, the baby is a boy. No doctor has ever held up a new-born baby and “assigned” them a sex. They determined the sex based on the obvious biology observed, which was determined by the child’s genetics. They did not assign a sex to them. I guess Justice Jackson failed that part of high-school biology, which may explain why she couldn’t define a “woman” during her confirmation hearings before the Senate.
Conclusion
What was the majority opinion of the court?
Held:
1. Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex, and West Virginia has permissibly maintained female sports for biological females consistent with Title IX. …
2. West Virginia and Idaho did not violate the Equal Protection Clause of the Fourteenth Amendment by maintaining female sports teams for biological females.
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
West Virginia and Idaho were perfectly within their rights to maintain sex separate sports teams, and to enforce that separation. As the court noted:
Title IX regulations guarantee only “equal athletic opportunity.”
West Virginia et al. v. B. P. J., By Her Next Friend And Mother, Heather Jackson
Allowing males to compete in female sports denies women and girls “equal athletic opportunity.” The basic biological advantages that men have in physical activities is the very reason schools created separate female and male sports teams. So it is B.P.J., Hecox, and all of the other “transgender” promoters who are violating Title IX, by denying women and girls an equal athletic opportunity in their promotion of their mental disorder or political agenda.
