Earlier this year, Idaho enacted the Fairness in Women’s Sports Act. It goes into effect next month.
The Act contains two main provisions. First, covered athletic teams shall be expressly designated as one of the following based on biological sex: (a) Males, men, or boys; (b) Females, women, or girls; or (c) Coed or mixed.
Second, “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.” The Act does not contain a comparable limitation for biological females who wish to participate on a team designated for biological males.
The Act was promptly challenged as unconstitutional. The theory, I suppose, is that males who feel like females (or who say they do) have a constitutional right to compete against girls and women in sports, and thereby to take advantage of the superior athletic attributes they possess by virtue of being male, biologically.
The Department of Justice has filed a Statement of Interest in the Idaho litigation. In announcing the decision to do so, Attorney General Barr said:
Allowing biological males to compete in all-female sports is fundamentally unfair to female athletes. Under the Constitution, the Equal Protection Clause allows Idaho to recognize the physiological differences between the biological sexes in athletics. Because of these differences, the Fairness Act’s limiting of certain athletic teams to biological females provides equal protection.
This limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place — namely, the goal of ensuring that biological females have equal athletic opportunities. Single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.
The Statement of Interest develops this argument. The DOJ contends that the Equal Protection Clause of the Constitution does not require states to abandon their efforts to provide biological women with equal opportunity to compete for, and enjoy the life-long benefits that flow from, participation in school athletics in order to accommodate the team preferences of transgender athletes. Put differently, the Constitution does not require Idaho to provide the special treatment plaintiffs request, under which biological males are allowed to compete against biological females if and only if the biological males are transgender.
So obvious are these points that it’s distressing the Justice Department needs to make them. But the DOJ does.
It doesn’t matter whether the points are obvious. All that’s likely to matter in the end is whether John Roberts agrees with them, and will be willing to say so.