Trans Athletes Lose (in Court)

Plus: A 29-year-old DSAer wins, San Francisco’s disappearing babies, and more…

“To provide equal opportunity for female athletes, schools do not merely maintain, for example, one soccer team, one basketball team, one ice hockey team, and one lacrosse team that are equally open to female and male athletes,” wrote Justice Brett Kavanaugh for the majority. “That approach would deny equal opportunity to female athletes because, as all agree, females and males have inherent physical differences relevant to athletic performance. Those ‘physical differences between men and women’ are ‘enduring.’ United States v. Virginia, 518 U. S. 515, 533 (1996). The differences include, among other things, height, weight, strength, speed, endurance, and jumping ability. Therefore, in contact sports, forcing female athletes to compete against males can create significant safety risks. And in virtually all competitive sports, forcing female athletes to compete against males can undermine competitive fairness.”

“Allowing a biological male athlete to compete on a girls’ team necessarily displaces or disadvantages a female athlete—replacing her on the roster, knocking her out of the starting lineup, reducing her playing time, depriving her of a medal and the like,” continues Kavanaugh. “That hard reality of sports cannot be ignored or swept under the rug.”

The Court’s liberal-leaning justices interestingly concurred with the majority’s decision to reject under Title IX, but dissented in part:

“Applying a form of heightened scrutiny divorced from this Court’s cases, the majority holds that transgender girls like B. P. J. who wish to play girls’ sports are not protected by the Constitution, even if B. P. J. is correct that neither of the State’s interests is furthered by their exclusion,” writes Justice Sonia Sotomayor. “Yet the Equal Protection Clause demands much more when a State deploys a sex classification to achieve legislative aims. Perhaps West Virginia could meet those demands. Perhaps not. In either event, because unresolved factual questions prevent the Court from assessing the merits of B. P. J.’s equal protection claim at this time, the Court should allow the District Court to address those factual questions in the first instance. Yet in an opinion unencumbered by fact or law, the majority today cuts off that process prematurely, deciding instead that B. P. J.’s case must end now.”

President Donald Trump, naturally, had a slightly less nuanced reading: “Wow! That takes that ridiculous situation off the table!!!” he wrote on Truth Social.

My preferred take: “I felt like I was on the other side [of] the looking glass,” wrote The Volokh Conspiracy‘s Josh Blackman, commenting on his debate on NPR with Jennifer C. Pizer, who works for Lambda Legal and was counsel on the case, much of which hinged on the meaning of biological male.

This strikes me, more broadly, as a win for fairness. Other libertarians’ mileage may vary.

New AOC on the scene? Melat Kiros, a 29-year-old DSA candidate, just unseated a 15-term incumbent, Rep. Diana DeGette, in yesterday’s primary in Denver. Given the blueness of that area of Colorado, it is very likely that Kiros is going to win in November and join the crew of democratic socialists flooding Congress. (DeGette has historically attracted kind of crazy challengers, like Saira Rao, the woman who infamously invited people to dinner so she could berate them about their internalized racism and spun this into a whole company.)

“In her campaign biography, Ms. Kiros highlighted the fact that the Manhattan law firm where she once worked had fired her in 2023 after she refused to take down a letter that raised questions about Israel’s historical legitimacy, defended pro-Palestinian campus protesters and challenged the firm’s response to activist law students,” reports The New York Times. “By chilling future lawyers’ employment prospects for criticism of the Israeli government’s actions and its legitimacy, you are complicit in Israel’s weaponization of anti-Semitism against legitimate concerns for the right of self-determination and the livelihood of the Palestinian people,” wrote Kiros in the letter.

In addition to her intense views on Israel, Kiros is in favor of the Green New Deal and “a moratorium on new AI data centers until federal regulations are in place to protect labor, the environment, and our privacy”; increasing childcare subsidies; and all manner of socialist policies that would cripple private industry. Her campaign website calls for “federally subsidizing 30% of all new housing developments to ensure affordable, dignified housing is truly accessible” and making “public college and trade school tuition-free.” “I support robust federal investment in public transit: expanding light rail and bus rapid transit, making fares affordable, and modernizing our transit systems as part of our broader climate infrastructure,” says her website. “Transit is not a luxury. It is the circulatory system of an affordable city.”

“The greatest threat to your job isn’t an immigrant—it’s a billionaire,” notes Kiros, who seems to truly have no idea how economics works.

Scenes from New York: On Tuesday, the City Council approved even more handouts for poor and middle-income residents: An expansion of the Fair Fares program, which gives half-price bus and subway fares to people with low enough incomes.

Now, some 1.3 million New Yorkers will qualify, up from 960,000 before. Formerly, you had to make 150 percent of the federal poverty level or lower (about $49,000 for a family of four). Now, you just have to make 200 percent of the federal poverty level (so about $66,000 for a family of four). The program will now cost $175 million, instead of $100 million. Add it to our tab, I guess.

QUICK HITS

• “A divided US Supreme Court upheld the constitutional right of birthright citizenship, rejecting President Donald Trump’s planned restrictions and invalidating a central plank of his immigration agenda,” reports Bloomberg. “The court said an executive order Trump issued hours after his inauguration last year couldn’t be squared with the Constitution’s 14th Amendment, which has long been understood as guaranteeing citizenship to virtually everyone born on US soil.” If Trump’s order had been allowed to stand, it would have affected roughly 250,000 children annually. Two of the (three total) dissenters—Justices Clarence Thomas and Samuel A. Alito—said the ruling opened the door to “birth tourists” (Thomas) and that established residents have a “strong moral claim” to staying here, but that Congress must sort out their legal status (Alito). (Thomas seemed more concerned than Alito about foreigners’ allegiances and whether people having children in the United States are “subject to any foreign power.”) Trump immediately started talking about ending birthright citizenship through the legislature.

• You know who’s not having any anchor or non-anchor babies at all? San Franciscans, apparently:

Associate Editor, Reason

Want to support this newsletter and my work? You can:

Contribute to Reason. This newsletter (and everything Reason produces) relies on the support of readers like you. Contributions help us spread commentary like this to more people.

Forward this newsletter. Know of someone who needs to read it? They can sign up for free at this link.