Clarence Thomas: There are Only Two, Unchangeable Sexes

The U.S. Supreme Court ruled Tuesday that states can protect girls and women’s sports with laws separating sports based on biology.

In its 6-3 decision, the Court combined two cases, West Virginia v. B.P.J., and Little v. Hecox, and upheld Idaho and West Virginia’s laws that maintain women’s and girls sports teams only for biological females.

The Court determined 9-0 that Title IX – a federal law ensuing women have equal athletic opportunities – and 6-3 that the equal protection clause of the 14th Amendment permit states to enact such laws.

Justice Brett Kavanaugh authored the Court’s majority opinion, which was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett.

Justice Kavanaugh wrote,

The question before the Court is: Under Title IX and the Equal Protection Clause of the Fourteenth Amendment, may schools maintain women’s and girls’ sports for biological females? In other words, may schools determine eligibility for women’s and girls’ sports based on biological sex? The answer is yes.

Now, 27 states can continue to protect girls and women from biological males who want to compete against them, threatening their privacy, safety and opportunity to compete.

Females who live in blue states without such laws, however, remain vulnerable. The Trump administration is currently investigating, and filing lawsuits against, multiple states – including California, Maine and Minnesota – for violating Title IX by permitting males to access female athletics.

In the future, the Court may decide whether Title IX requires all states to reserve girls and women’s sports for female athletes.

Justice Thomas wrote a separate two-page concurring opinion, stating, “A man does not have a legal right to compete against women just because he believes that he is a man.” The justice also wrote separately to make two points.

First, Justice Thomas expressed his opinion that “transgender status is not a suspect class requiring heightened equal-protection scrutiny.” The justice wrote,

The class of people who claim transgender status could more accurately be described as people who are experiencing “gender dysphoria,” which is not a “discrete group.”

Because “gender dysphoria” is a mutable mental state that is the object of psychiatric treatment, it does not resemble the immutable characteristics on the basis of which our precedents have applied heightened scrutiny—race, sex, or national origin.

This, according to Justice Thomas’ view, means laws implicating those with “transgender status” can be upheld if legislatures have a rational basis (the lowest bar of constitutional scrutiny) for enacting them.

Last year, in a different case, Justice Barrett wrote a concurring opinion expressing the same view.

Second, Justice Thomas explained what should be a unanimously held view: Men and women are different, and sex is unchangeable.

“Men and boys with gender dysphoria are not women or girls, even if they believe that they are,” Justice Thomas wrote. “Sex is an immutable ‘biological’ characteristic; it is binary; and ‘man’ and ‘woman,’ ‘boy’ and ‘girl,’ are the terms that correspond to adults and children of each sex.”

Justice Thomas powerfully added,

To use language to obscure reality—to show “indifference regarding the truth”—is to lie to the public and cease to treat our fellow citizens “as equal[s].”

The justice’s reminder of the importance of language, of truthful language, is apt considering the myriad media outlets who, following the Court’s decision, claimed the Court’s decision allows states to prohibit “transgender athletes” from girls sports.

No. The Court permits states to block males from girls sports. There are no “transgender” athletes because there no “transgender people”; there are only males and females, even if some struggle with confusion over their sexual identity. Our language matters because truth matters. Speech shapes people’s perception and influences how they see reality.

Three cheers for Justice Thomas’ reminder to speak the truth, especially in important matters of biology, sexuality and reality.

Focus on the Family exists to help families, and that includes help navigating the issues of homosexuality and transgenderism. Focus offers a free, one-time counseling consultation with a licensed or pastoral counselor. To request a consultation, call 1-855-771-HELP (4357) or fill out our Counseling Consultation Request Form.

Related articles and resources:

Transgender Resources

Chloe Cole: Gender Reassignment Surgery Regret

Blockbuster Supreme Court Ruling: Girls Sports Are for Girls

Top 5 Moments From Supreme Court Arguments Over Girls Sports

Supreme Court to Hear Title IX Girls Sports Cases

U.S. Supreme Court Takes Up Cases on Boys in Girls Sports

Justice Barrett Crucially Explains Why ‘Transgenderism’ is Not a Special Class

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