The Trojan Horse in the Supreme Court’s Equal Protection Cloakroom

The recent decision in West Virginia v. B.P.J., which allowed states to ban trans athletes from participating in women’s and girls’ athletics, has been quietly embedded within a larger strategy aimed at dismantling Justice Ruth Bader Ginsburg’s greatest legacy: sex-equality cases that have protected Americans against discrimination on the basis of sex, sexual orientation, and gender identity. This approach bears an unsettling resemblance to the Trojan horse of Greek mythology, where an unsuspecting enemy was tricked into entering the walls of Troy, ultimately leading to their downfall.

The Alliance Defending Freedom (ADF), a conservative Christian legal organization, has been at the forefront of this movement. Having successfully litigated Dobbs v. Jackson Women’s Health Organization to undo the right to choose an abortion, they are now targeting sex-equality cases with a different tack. The ADF is employing the term “biological sex” to justify deferring to laws that discriminate on the basis of sex.

The Supreme Court’s decision in B.P.J. exemplifies this strategy in action. In it, the court held that West Virginia and Idaho could ban trans athletes from participating in women’s and girls’ athletics because the states were simply recognizing physical differences between the sexes – what the court called biological sex. Justice Brett Kavanaugh wrote for the majority, framing the case as a minor exception to the court’s sex-discrimination jurisprudence, one that reflects differences in size, speed, and strength that make sports unique.

However, a closer examination of the history behind Title IX reveals that Congress enacted this law not to enforce biological differences between the sexes but to combat demeaning and exclusionary sex stereotypes. The disparity in funding for women’s sports at the time was staggering – women received only 2 percent of university athletic funding. Lawmakers were concerned about the discriminatory impact of these practices.

The use of the term “biological sex” by the Supreme Court is a significant development, as it allows judges to defer to the judgments of the political branches rather than scrutinize sex-based state action for sex-role stereotyping. This approach revives the very traditions of reasoning from the body that were once used to justify discriminatory laws.

The implications of this movement strategy are far-reaching and alarming. By constitutionalizing the claims of a movement that seeks to reverse the gains of LGBTQ+ Americans, the court is putting in place a framework for overturning key sex-equality cases, including United States v. Virginia, where Justice Ginsburg explained the Constitution’s guarantees against sex discrimination.

The use of “biological sex” as a Trojan horse has been effective thus far, allowing the Supreme Court to stealthily overrule important sex-discrimination cases while maintaining a veneer of respectability. However, this approach will not stand without scrutiny and challenge from those who recognize its implications for LGBTQ+ rights and sex-equality law.

As the court continues to employ the term “biological sex” in equal-protection decisions, it is essential that we watch closely how this strategy unfolds. The court’s willingness to constitutionalize discriminatory claims under the guise of science will have far-reaching consequences for the rights and freedoms of marginalized communities.

The fate of Justice Ginsburg’s legacy hangs in the balance, as does the future of sex-equality law in this country. It is imperative that we recognize the Trojan horse at work in the Supreme Court’s equal protection cloakroom and take action to challenge its influence before it is too late.