There’s No Sex Discrimination Without Sex

National Review Online

Wednesday, January 14, 2026

 

In a properly functioning constitutional republic, the Supreme Court’s job is reading legal texts; matters of elementary common sense are left to the people and their representatives. But our era’s cultural complaints sometimes require the justices to turn their attention from law to the difference between fiction and reality.

 

So it was with Tuesday’s oral arguments in two cases challenging West Virginia and Idaho laws that limit participation in girls’ and women’s sports to — brace yourself for this one — girls and women.

 

In last year’s Skrmetti case involving a Tennessee ban on “gender-affirming” hormone therapies, the Court did not need to get into the basic definitional questions about sex and gender because it resolved the case by dismantling a convoluted legal theory about how two different uses for the same hormone were supposedly the same medical treatment. But with transgender athletes, as Justice Scalia would say, this wolf comes as a wolf — not a ewe.

 

The plaintiffs in West Virginia v. B.P.J. and Little v. Hecox would prefer to argue that it is invidious discrimination against transgender people to not let them unilaterally redefine their sex. But the current Court has little appetite for creating a new constitutional “suspect class,” so the ACLU lawyer arguing the case has to engage in some definitional legerdemain to argue that banning males from female sports is, at least in some cases, impermissible sex discrimination under the equal protection clause and under Title IX of the Civil Rights Act. That was good enough for the Fourth and Ninth Circuits, to their shame.

 

The very existence of female-only sports that exclude males is sex discrimination. That’s the entire point. Yet, the Court’s precedents have long allowed sex discrimination that is based upon real, biological sex differences. In competitive sports, those are glaringly obvious and have real consequences not only for who wins but also for the safety of female athletes. That’s why most of these cases involve males trying to play with the females, rather than the other way around. Males who identify as female can still play sports — just not as females. The stubborn reality of biology is why the Court applies a more lenient test (“intermediate” scrutiny) than it does when assessing race discrimination, which is presumed to be irrational and thus can be justified only by the most compelling interests and applied only in the most narrowly tailored settings.

 

We think Justice Samuel Alito cut to the heart of these cases when he asked Kathleen Hartnett, the ACLU’s lawyer, “For equal protection purposes, what does — what does it mean to be a boy or a girl or a man or a woman? . . . How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?” That question goes double for Title IX, which bans discrimination “on the basis of sex.” Congress must have meant something when it used that word. Yet, Hartnett responded as if this was an unsolvable stumper: “We do not have a definition for the Court.”

 

That ought to be the end of the case. If the Constitution and federal law define sex, we assume those definitions to be what the public understood when the 14th Amendment was ratified in 1868, when the Civil Rights Act passed in 1964, and when Title IX was passed in 1972 — none of which would have expected the term to mean that men who identify as women are women. If the Constitution and federal law are agnostic on the question, however, states and schools are entitled to their own definitions, in which case a traditional biological definition cannot violate federal law.

 

Hartnett’s only proffered alternative is to argue that a subset of a subset — males who can show that they have purged the effects of testosterone from their bodies — should have their own constitutional and statutory exemption from being treated as males. It makes no sense to think that either the 14th Amendment or Title IX was drafted to require such a thing, and it would be far more cumbersome and invasive to ask schools to administer such a regime rather than recognize reality: boys are not girls, and men are not women. It really is that simple.