Don’t Buy Ketanji Brown Jackson’s Sleight-of-Hand on Women’s Sports

Supreme Court Justice Ketanji Brown Jackson tried to pull a fast one on the American people Tuesday.

The court upheld West Virginia’s law preventing men from competing in women’s sports, finding that the law does not constitute discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972.

The court split along familiar ideological lines: the six Republican-appointed justices joined the majority opinion, while the three Democrat-appointed justices did not. However, the liberal justices didn’t write full dissents—they actually said they agreed with the ruling’s central holding.

While Justice Sonia Sotomayor wrote an opinion that Justices Elena Kagan and Ketanji Brown Jackson joined, Jackson wrote a separate pseudo-dissent that reveals how the liberals tried to smuggle transgender ideology into a ruling delivering sanity.

The Pseudo-Dissents on Women’s Sports

B.P.J., a middle-school boy who identifies as a girl, claimed West Virginia’s law violated Title IX by preventing him from competing in women’s sports. He claimed the law violates Title IX, but also that the state discriminated against him in violation of his 14th Amendment right to the equal protection of the laws.

Sotomayor agreed with the court’s majority that B.P.J.’s Title IX claim fails, but she argued that the Supreme Court should not have resolved the 14th Amendment claim.

West Virginia’s policy aims at “ensuring safety and preventing unfair competitive advantages in women’s sports.” B.P.J., however, claims that neither of those goals apply to him, because he did not go through male puberty and he did receive cross-sex hormones, and therefore lacks “any athletic advantage that is inherent” to his “sex identified at birth.”

Sotomayor does not flatly state that West Virginia’s law violates the 14th Amendment. Instead, she says a lower court should decide, because lower courts engage in fact-finding, while higher courts decide contested matters of law.

She wrote that West Virginia could prove that its law achieves its aims without harming B.P.J., but the Supreme Court’s ruling leaves “unresolved factual questions.”

“The ban is absolute, so B. P. J. cannot practice on girls’ teams, even if she [sic] would not take anyone’s spot in an eventual competition, even if everyone who tries out for the team makes it, and even if having the chance to participate could aid immensely in treating B. P. J.’s gender dysphoria,” the liberal justice writes.

Jackson writes to disagree with the court’s majority in ruling that the term “sex” in Title IX “cannot plausibly be interpreted to refer to anything other than biological sex.”

“Title IX makes room for individuals to live in the gender they choose,” Jackson writes. “It cares not just about sex assigned at birth but also about individuals’ ability to match (or not) their gender presentation to their gender identity. Because West Virginia’s law forces B.P.J. to live—in this case, to play—as a boy though she is a girl [sic], it might well run afoul of Title IX properly construed.”

What the Liberal Justices Reveal

Notice how the liberals admit that West Virginia’s law might not violate Title IX, even while they take pains to use language in line with transgender ideology.

Jackson concedes the central point in the case—apparently because she feels she must—while at the same time attempting to smuggle in the exact opposite conclusion, based on the notion that, on an unspecified metaphysical level somehow beyond biology, B.P.J. is actually female.

This case relies on the plain fact that males, on average, are physically stronger than females and enjoy an inherent advantage in most sports. The idea that protecting women from competing against men could possibly violate Title IX—which Congress passed in order to advance female opportunity—is fatuous, and frankly, insulting to Americans’ intelligence.

Poll after poll has demonstrated that Americans overwhelmingly support rules requiring people to play sports according to their sex, not their claimed gender identity.

The problem is, the Left can’t really split the baby on this one. You either believe that a person’s stated gender identity overrides his or her biological sex or you don’t. You either believe that we should adopt preferred pronouns, allow men in women’s spaces, and champion mutilation as a form of “care,” or you don’t.

Men in women’s sports may be the least popular part of the transgender agenda, such that even Ketanji Brown Jackson will side with sanity, for now. But this is an ideological divide with relentless logic on either side, and if you admit that Title IX actually supports fairness in women’s sports, you eventually have to acknowledge that B.P.J. is still a man, whether he sees himself that way or not.

So long as Jackson and the other liberals insist on kowtowing to transgender ideology, internal logic won’t let them judge the cases accurately.

They may say they agree with the majority opinion, but if you read carefully, you’ll find them laying the groundwork for smuggling transgender ideology in, anyway.