Kristen Clarke, now the head of the Justice Department’s Civil Rights Division, has filed a brief on behalf of the United States arguing that a West Virginia law barring boys from participating on girls’ sports teams violates Title VI and the Equal Protection Clause. Sen. Joe Manchin of West Virginia cast a key vote confirming Clarke. Ed Whelan aptly calls this a case of no naïve deed going unpunished.
Clarke’s brief argues that the 11-year-old biological male who wants to try out for Bridgeport Middle School’s girls’ cross-country and track teams “is a girl.” Therefore, the argument goes, the West Virginia law unlawfully “targets girls who are transgender.”
This, as Whelan says, is just wordplay. Biologically, the 11-year-old is a boy, not a girl. His inner sense of gender identity doesn’t alter this reality. Nor does it alter the stubborn fact that, as a boy, he would have an unfair advantage if allowed to compete against girls.
Clarke’s brief claims that the West Virginia law effectively bars the 11-year-old from participating as an athlete in cross country. It relies on allegations that the school principal said it would be problematic for the 11-year-old to compete with boys because he presents as a girl.
As far as I can tell, however, the 11-year-old hasn’t been barred from the boys’ team. Were this to happen, the 11-year-old could be said to have been “targeted” because he is transgender, and he might have a valid discrimination claim. But he should have no claim based on his exclusion from the girls’ team.
The case arises within the jurisdiction of the Fourth Circuit Court of Appeals. That court issued a misguided decision in Grimm v. Gloucester County School Board, from which Clarke’s brief draws some support.
Whelan reports that the Supreme Court is scheduled to consider Gloucester County’s certiorari petition at its conference this Thursday. The West Virginia case helps show why the petition should be granted.
Granting it could, in Whelan’s words, “protect the ability of states and school boards to exercise their best judgment on how to address the broad range of questions posed by students who identify as transgender.”