THE TWO SEXES ARE NOT FUNGIBLE: THE CONSTITUTIONAL CASE AGAINST TRANSGENDER-INCLUSIVE SPORTS

See VMI, 518 U.S. at 539-40 (1996) (explaining that VMI's male-only admission policy violated equal-protection principles because it disadvantaged females by excluding them from a unique educational benefit to males and was not established to further a state policy of diversity); see also id. a...

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Bibliographic Details
Published inTexas review of law & politics Vol. 28; no. 1; pp. 243 - 271
Main Author Rogers, Elle
Format Journal Article
LanguageEnglish
Published Austin University of Texas, Austin, School of Law Publications, Inc 01.10.2023
Subjects
Biology
College basketball
Committees
Constitution-US
Constitutional law
Equal rights
Females
Gender identity
High school basketball
Inclusion
Males
Marathons
Participation
Sex discrimination
Sexes
Stereotypes
Students
Transgender persons
Womens sports
United States > US
Virginia
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Summary:See VMI, 518 U.S. at 539-40 (1996) (explaining that VMI's male-only admission policy violated equal-protection principles because it disadvantaged females by excluding them from a unique educational benefit to males and was not established to further a state policy of diversity); see also id. at 541-42 (noting that under equal-protection principles, "state actors ... may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females" (internal quotations and citation omitted)); id. at 550 ("[G]eneralizations The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables.1 What is the constitutional status of transgenderinclusive school sports? [...]in Part IV, I show how transgender-inclusive school sports policies, insofar as they are based on stereotypes about men and women and disadvantage women, fail to provide equal protection of the laws. The opinion, authored by Justice Ginsburg, articulated the test for sex discrimination under the Equal Protection Clause of the Fifth and Fourteenth Amendments.34 State action that "closes a door or denies opportunity to women (or to men)" must be supported by an "exceedingly persuasive" state justification.35 This justification must include an "important" purpose to which the state action is "substantially related. Policies that allocate benefits or burdens based on one of these characteristics must survive the Courts most exacting level of review, strict-scrutiny analysis.39 Taking a person's race into account in any circumstances will almost always fail.40 Most state-sanctioned "discrimination," however, targets nonsuspect characteristics such as age, wealth, or disability.41 Policies based on these characteristics enjoy the far more deferential rational-basis review, which presumes the validity of state legislation so long as it is reasonable.42 The standard articulated in VMI is "heightened"43 in that it requires more than rational basis but less than strict scrutiny.
ISSN:1098-4577
1942-8618