Will Baude: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan Epps: And I'm Dan Epps. So we are continuing our roll. We were interrupted a little bit by my vacation, but I think we have managed to keep giving people content. So I hope we don't get any complaints about that, about our output. I feel like we're doing good.
Will: I feel like we're starting to get a little scheduled.
Dan: Yeah, but I think that's okay. I mean, I think as long as we don't remain perfectly predictable, I think it's okay. It's okay. I don't know. I'm feeling good. I think we've got a good groove. I want to set the record this season, and I want to break the record next season.
Will: Okay.
Dan: How about that?
Will: Well, we can't set the record too high this season or we won't be able to break it next season.
Dan: Well, I think we're going to set it, break it by an episode or 2, depending. We'll see.
Will: Yeah.
Dan: Yeah, but I think it's good. I think that in trying to be a little bit more focused, we're going to talk about one case today.
Will: Yep.
Dan: I think that's going to— it's a little bit easier.
Will: 2 cases.
Dan: 2 cases? Well, 2 conjoined cases.
Will: Right.
Dan: We're talking about one opinion today.
Will: Yes.
Dan: Okay. Let's see. Luckily, not a ton of news. These summer episodes are a little bit easier to do because we don't get overloaded by 18 different interim docket things.
Will: I feel like this was not true last summer. My memory is—
Dan: Yeah, there was a lot more going on last summer. I don't know. Why are things quieter this year?
Will: Because the Supreme Court has gotten a grip, I think.
Dan: That they've kind of sent the right signals and people know where the equilibrium is?
Will: Yeah, closer. At least, right. They've got a better sense of what they're willing to say no to. The administration has learned what they're going to say no to, or at least substantially likely to say no to, and that's probably affected everybody's behavior. Maybe the lower courts too. I don't know. Well, there's some of that going on. I think there is— our show prep assistant tells me that there is a new Trump SG filing, maybe earlier this week, about mail-in voting.
Dan: Responses are due Monday, August 3rd.
Will: Yeah, hopefully this episode will be out by then. And I think we were promised that there was going to be a petition for rehearing in the birthright citizenship case, which according to the docket as last I checked has not materialized.
Dan: Yeah, I got a call from a reporter about that more than a week ago, I think. That would be due pretty soon, right?
Will: Yeah, maybe already. Counting the days, counting filing days, because it was always one of my least favorite things in litigation.
Dan: Well, it's gotten a lot simpler, right? It used to be that you would exclude the weekends, but now you literally just count the days.
Will: Is that right?
Dan: Yeah.
Will: So if it falls on a Sunday, you have to file on a Sunday?
Dan: No, no, no. I mean, you can file the next day, but I just mean to figure out how many days something has been, you don't do a complicated calculation. If the timeline says 10 days, you just go 1, 2, 3, 4, 5, 6, 7, 8, 9, 10. And then see where it lands. And you have to avoid the classic fencepost problem. This is one of the classic math mistakes people make a lot.
Will: What's a fencepost?
Dan: Fencepost problem is where you don't account for— you count incorrectly based on the endpoint and the beginning point. And you can go in different ways, but sometimes people are like, oh, this was 2 months ago. And it's like, July, June, that's 2 months. And it's like, no, this was 30 days ago, so you're double counting by counting the 2 months. Or the classic example is, this fence is going to be 6 widths wide, and so you buy 6 posts. And actually, you need 7 posts because you need the 0 post and the 7. Right.
Will: Unless your fence is a hexagon.
Dan: Yeah. Or you have 8, so it's the UFC octagon as we had recently in our—
Will: Yeah, but you can't do that with 6 then.
Dan: You need 8 for an octagon. Yeah, I mean, obviously the octagon needs 8. I'm just riffing on that a little bit, just getting my basic geometry down. You ever been to a UFC match?
Will: No. I don't condone violence, Dan.
Dan: Yeah, you are. You're very anti-violence. Yeah, I went to a UFC fight a long time ago, maybe 12 years ago, and it was a very early Conor McGregor fight before he became quite as famous and quite as much of a terrible person. But it was kind of cool. I haven't had a chance to go since then.
Will: Well, you can go without me.
Dan: I feel like we got to expand your horizons. In many ways. That's all right. Don't you think it's good for society to maybe channel these impulses into these things and then we can—
Will: Yes. I mean, look, I always liked the literature that violent video games prevent violence and these kinds of things. I think some of that is true, although I liked it too much to really figure out if it's true or false. So I understand the argument, I just don't like it.
Dan: I assume you don't allow violent video games in your home.
Will: That hasn't really come up, but I'm sure that's true.
Dan: Yeah. My kids and I play a lot of Mortal Kombat. My 6-year-old is obsessed with horror stuff, even though he desperately wants to watch Freddy Krueger and things like that, even though we've never— We have a pretty tight lid on video games, period. So you're a much more responsible parent.
Will: Well—
Dan: Once you have as many kids as I have, you kind of just have to let all that go and just get into survival mode.
Will: I spent enough of my childhood playing video games to know how fun they are, so I don't want anybody else to find out.
Dan: You were doing tabletop games too, though, right?
Will: Sure. Dungeons & Dragons.
Dan: Those are allowed. Those are allowed in your house.
Will: We've just started that.
Dan: Good. Yeah, my 11-year-old had a kind of game going with his friends, but they haven't met recently, but hopefully he gets that going. It seems very wholesome.
Will: Yeah. I mean, it's as wholesome as you make it. True.
Dan: But I mean, they're not staring at a screen. They have to do a little math. It's creative. Seems good in a lot of ways.
Will: When I was doing this, a lot of my math abilities came from calculating the probabilities of various complicated game states and stuff like that.
Dan: Yeah, I mean, all the different dice rolls and stuff, right? It's kind of complicated.
Will: Yeah.
Dan: Okay, so what else to report? Anything? We've been getting a lot of mail and not doing a great job of responding. Partially it's just because we get a lot of thoughtful emails that are kind of complicated and that require deep thinking on my part to respond to, and then I just never do it. But anything in there that you wanted to surface?
Will: I don't have anything from the mail right now. I will say I learned, Dan, that I made a prediction that came true.
Dan: Okay. Yes, this is my prediction workflow is now in full swing. And this one, there's no chance either of us would've remembered this, right?
Will: Correct.
Dan: What is it?
Will: Okay. So in May 2024, 2 years ago, we were talking about one of Justice Gorsuch's concurrences in Culley, I think an excessive fines civil forfeiture case, where I apparently said, I'm positive that the Institute for Justice and other folks like that are teeing these cases up. They may already be in the courts below, frankly. So I wouldn't be surprised if we see some good cert petitions trying to carve that issue off soon. And then on July 20th, we not only saw such a petition, but the Court granted a petition in Jouppi v. Alaska, an Institute for Justice case about pretty much exactly that, Excessive Fines Clause, whether it violates the Excessive Fines Clause to forfeit somebody's 5-figure aircraft because it illegally transported a 6-pack of beer.
Dan: Yeah, that's going to be a super interesting case. And obviously, it's one of those cases where the very intuitive reaction to the factual description is like, of course not. Of course you can't do that. But we'll see whether it turns out to be more complicated than that.
Will: I mean, there are definitely going to be these cases where somebody's like, well, we forfeited the boat when it had this many barrels of rum on it. And then Justice Gorsuch will say, ah, but this many barrels of rum would've kept Benjamin Franklin pickled for 2 years, 6-pack of beer would've only lasted him 2 hours, whatever the alcoholic ratio was.
Dan: These are the cases that you just like, why can't someone have a little bit more common sense at an earlier stage? Who is it that just thought, we should try to take this guy's plane with one inadvertent mistake? I think it was one of his passengers who wasn't even the plane owner who snuck the beer on.
Will: I mean, I assume it's some underfunded government entity that wants $85,000.
Dan: It's just ridiculous. It's just ridiculous.
Will: Yes.
Dan: Okay. And it gave me credit for another prediction, although this is maybe revealing some of the deficiencies of the prediction scorecard system, which is in episode 24 of this season, I said, I promise no long delay before our next episode. And there was another episode 7 days after that, episode 25. So it gave me a point for that. That is a very much easier prediction. So I don't know. I think we need to adjust. As we were discussing, we need to kind of develop a slugging percentage methodology. Your prediction was good.
Will: I think it's fine for it to keep those as long as it also keeps the ones where you say if there is a long delay, it's because we've both been encased in a magical block of ice by Magneto or whatever. And then as long as it actually grades that as a real prediction and figures out what happened, then—
Dan: That would make the closeout of our show much less fun. You really want that?
Will: No, I wanted to exclude the closeout entirely, so I want you not to get credit for that one.
Dan: Okay, okay. That's fair. That's quite reasonable. Magneto has magnetic powers, not ice powers, just for the record.
Will: I realized that as I was saying it. Yeah, it was a good idea. But the ice, so the water has a lead content, and so if there's lead in the water, then Magneto can also control water.
Dan: That's quite possible, yeah. That's my argument. One of my prized possessions is a copy of Giant-Size X-Men #1 that I bought when I was a kid. It was between $100 and $200, and I think it's worth like $1,000 now. It's the first appearance of some of the new generation X-Men like Storm and Colossus. Yeah.
Will: The current Magic: The Gathering set is a Marvel superheroes set.
Dan: Oh, interesting.
Will: They've gotten really into crossover IP lately, which is very controversial.
Dan: Yeah. Do the purists think that that's lame?
Will: The purists think that's lame, although it also just depends on how good the cards are and stuff like that. And also it's like they did the Lord of the Rings, which is sort of crossover, but at least thematically it fits better. Whereas when they do— they did a Spider-Man set. And actually the Spider-Man set was especially controversial because they couldn't get the IP rights to do the Spider-Man set on the online platform, only the paper cards. But then the online platform still had the cards, but they all had new art and new names. So they were all secretly Spider-Man, but you didn't know that.
Dan: That's weird.
Will: They had to generate a whole sort of really dumb spider mythology for Magic: The Gathering just as an excuse to— So that was especially unpopular. For the Marvel cards, they shelled out extra money to buy the online IP. But anyway, the Incredible Hulk, you can do some cool stuff.
Dan: We have an episode called Originalism Hulk that I made a custom image for recently. Yeah.
Will: All right. We should talk about this case, Dan.
Dan: Yeah. The only other thing I was going to say, report some good news, which is my and Danielle's piece, Constitutional Rights in General Private Law, which is a follow-up to the Fourth Amendment and General Law paper we published in Yale Law Journal 3 years ago, and sort of riffs on some of your work, engages with a lot of stuff you've written. But the new piece just got accepted by Harvard Law Review, so that will be in print sometime next spring. And hopefully we will have a draft of it up on SSRN in the next month or 2.
Will: Excellent. Congratulations.
Dan: So that's my good news. Okay, talk about the case. So what's the case?
Will: All right. The consolidated cases are West Virginia v. B.P.J. and Little v. Hecox, cases arising out of the 4th and 9th Circuit, both with state petitioners, about whether the Constitution and Title IX allows states to— this is a contested framing question— allows states to say that transgender athletes who are born as men and now identify as women cannot play women's or girls' sports.
Dan: Yes. I think that that's accurate. And then the framing and the terminology, I think, is a sort of point of distinction between the majority opinion in this case and the dissent in this case.
Will: Yes.
Dan: In ways that are somewhat interesting.
Will: Yes. And then, so the bottom line, in a 6-3 opinion, classic conservative-liberal split. Classic conservative-liberal split. The Supreme Court says, yes, states can do this, with an opinion concurring in the judgment in part and dissenting in part from Justice Sotomayor, joined by Justices Kagan and Jackson, a separate opinion by Justice Jackson concurring in the judgment in part and dissenting in part, and concurring opinions by Justices Thomas and Gorsuch. I should say, I think they are 9-0 on the Title IX question.
Dan: Yes.
Will: Extremely narrowly.
Dan: Yeah, the dissenters, I want to talk about, because I wasn't— I was a little confused about what their Title IX argument was. But yes, everybody agrees that at least on these facts, there's not a Title IX violation. And then it's 6 to 3 on whether it's a constitutional, at least potentially a constitutional problem.
Will: Right.
Dan: I think that the dissent is not 100% of the way there, but we'll talk about that. Yeah.
Will: Where do I start?
Dan: Well, could we talk a little bit about the kind of way the opinions are written first, which is kind of interesting? So one is, and I think I flagged this on X, on Twitter at the time, but the majority opinion does not use pronouns at all to refer to the plaintiffs in the case. The other thing that I didn't notice initially, but I noticed now, is that the majority opinion never uses the first name of plaintiff Lindsay Hecox. Hmm.
Will: That's interesting.
Dan: Did you pick up on that?
Will: No. Just Hecox.
Dan: So the name Lindsay appears in the caption of the case at the kind of top of each opinion. Because there's the 2 captions. There's the West Virginia case and the Idaho case. And the second caption is Bradley Little, Governor of Idaho, et al., versus Lindsay Hecox, et al.
Will: Yeah.
Dan: But then if you look at the Kavanaugh opinion, and this is page 7 of the opinion, it just— normally in opinion, they would introduce the party the first time with the party's full name, right?
Will: Yep.
Dan: Here it just says, Hecox is a biological male who identifies as female.
Will: Yep. That's interesting.
Dan: Yeah.
Will: I mean, as you probably know, or probably remember, when these various issues were coming through the courts of appeals relatively recently, I feel like the first wave, many opinions used the trans person's preferred pronouns regardless of whether they're going to win or not. Just that was sort of— and then I think there was, maybe it was a Fifth Circuit opinion, by one of the— I forget, a 5th Circuit opinion that pointedly did not. And even dropped a footnote saying, we hereby split with the other circuits that do because we think that this person's actually this sex and not this sex, and we refuse to use the pronouns. And then of course, then it became a little bit of a marker, which pronouns are you going to use becomes a little bit of a— it doesn't have to be correlated with whether you accept the person's legal claims, but it became somewhat correlated. And so now, of course, if there's a polarized issue, then Justice Kavanaugh and some of the members of the Court have to try to find some middle way to try to avoid using pronouns entirely. Lindsay is interesting. And also Lindsay appears in the caption, and then so does a pronoun. So the caption for the first case is West Virginia et al. versus B.P.J. by her next friend and mother, Jackson.
Dan: Yeah.
Will: Which again, presumably captions partly reflect the ways that the plaintiffs filed the lawsuit in district court. Although sometimes the Court recaptions cases.
Dan: Yeah. I can't remember if it was Skrmetti or one of the earlier cases where one of the amici had swapped out the pronouns in that caption, sort of to make a statement. Do you remember that? We talked about it on the show, but I've now forgotten which case it was.
Will: And this is out of order, but we may as well do it now. So this is also, this is sort of the basis for Justice— at least in part the basis for Justice Thomas's very short concurrence, right?
Dan: Mm-hmm.
Will: Justice Thomas writes a short concurrence saying, I agree with the opinion in full. I would simply make 2 separate points. First, transgender status is not a suspect class requiring heightened equal protection scrutiny, an issue we talked about before and will come up again in Skrmetti. Second, as the Court recognizes, Justice Thomas says, this case concerns biological men and boys who identify as girls. Men and boys with gender dysphoria are not women or girls, even if they believe that they are. And then quotes with this— he or somebody has said this before, this Josef Pieper, abuse of language, abuse of power.
Dan: Yeah.
Will: I don't know the drafting situation, but you could imagine that a majority opinion started by trying to use the plaintiff's preferred pronouns, or at least using Lindsay the first time. And then Justice Thomas said, no, you have to take it out. Or maybe never started.
Dan: And I can understand that the pronoun disagreement, I mean, obviously I think the better practice is just to kind of call people what they want, but the refusal to use the first name strikes me as even more disrespectful. I mean, I wonder whether it would make a difference if Hecox had a legal name change or not. I don't know.
Will: Yeah, I agree with you. Although I guess I think it's good to call people what they want to be called by their name, you know, by their pronouns and names they want to be called by. The flip side, I do think sometimes people make the failure to use the correct pronouns or the correct name into more of an unforgivable sin. I mean, there are times where it is done intentionally and offensively, and that's very bad.
Dan: Yeah.
Will: And there are times when it's maybe less so. And the other more complicated one I think is also when it intersects with the historical record. If somebody has now changed their name and you want to refer to something they did when their name was something else, I think the general view is that it is offensive to refer to a transgender person's past actions using their dead name.
Dan: Yeah.
Will: That was the relevant—
Dan: I think that that creates a lot of confusion. Right. Don't think that, you know, I don't agree with that personally, but—
Will: Right. And I don't know when the name change in question happened here, but you could imagine, you can imagine a case whose procedural history starts to implicate those kinds of issues where it might be more complicated, and therefore you might just avoid using the name entirely to avoid having to get into it. But, yeah. Well, this is a sort of sign of how obviously the polarization and all the stuff going on in this case.
Dan: Okay. So should we talk about Title IX first? Sure.
Will: Okay.
Dan: And I think that this seems to be the easier question.
Will: Well—
Dan: Slightly less controversial?
Will: This is the question on which the Court does not divide, although in part because of the litigants' position. Okay, so Title IX says that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. And then as it was amended and implemented, this came to be understood to require relatively equal opportunity for men and women in sports, right?
Dan: Yes. And to explicitly permit single-sex sports.
Will: Right. And maybe require— Right.
Dan: Like, this is— yeah.
Will: Yeah.
Dan: Yeah. At least possibly. Maybe there's some world in which you could have all co-ed sports and yet it would still provide equal opportunity. But clearly it is okay to have gender-segregated— sorry, sex-segregated sports. Right.
Will: And again, partly on an equality of opportunity rationale. The thought is, for various reasons, if you had non-sex-segregated sports at a fairly competitive level with tryouts or whatever else, or various injury concerns, they might in practice be dominated by men, and it'll be hard for women to get enough opportunity to play and to win, right?
Dan: Yep. Yeah.
Will: Okay. So we've had that regime since, I don't know, for 50 years, right? 51 years since 1975. And so then the question is, given that Title IX permits sex-segregated sports, does it permit the sex-segregated sports to be segregated on the basis of biological sex assigned at birth.
Dan: I think everyone thinks yes, right? Well, I mean, everyone, at least in broad— like, I think everyone in the case— no one in the case thinks that Title IX does not permit, in some broad sense, biological sex segregated sports. Is that fair?
Will: I mean, so nobody challenges the broad point that you can have sex-segregated sports and that in Title IX, sex means biological sex.
Dan: Yes.
Will: Somehow the plaintiff still thinks that there should be an exception for them.
Dan: Yeah. I have trouble mapping that on to the statutory language.
Will: Yeah.
Dan: How that argument would work.
Will: Now, so it's interesting. I mean, I can't figure out how much of this is an artifact of making concessions at the Court, because you think, well, surely the Court won't— there's no point in making the broader arguments, which might be right. The plaintiff won below. So only one of the 2 plaintiffs, B.P.J., the Fourth Circuit case, makes the Title IX argument. The plaintiff won below, I believe, on the Title IX claim in front of an opinion by Toby Heytens, who's a very smart judge. So it can't be a crazy—
Dan: Friend of mine.
Will: Yeah. Hopefully mine too, at least before this. Now, in the Fourth Circuit, so one thing I was struck by looking a little bit at the lower court opinions is in the Fourth Circuit, there was already a decent amount of circuit precedent on point. I don't know if you remember— Do you remember Gavin Grimm?
Dan: Yes, that's the South Carolina case.
Will: A South Carolina case involving transgender bathrooms arising out of the Fourth Circuit that the Supreme Court, I think, granted during the Obama administration. And then it went away when the Obama administration gave way to the first Trump administration. So apparently there were already substantial precedents about how Title IX intersected with transgender issues dating back to that case that applied here. But the Supreme Court is unburdened by any of those.
Dan: Yeah. So what was the— do you recall what the Title IX rationale was? I think, as I understand the argument at a high level of generality, looking at this lower court opinion, the Heytens opinion says, B.P.J. has shown that applying the Act to her would treat her worse than people to whom she is similarly situated, deprive her of any meaningful athletic opportunities, and do so on the basis of sex.
Will: Right. And I think this is where the concession matters. So as I understand it, in the Fourth Circuit, it was already established that discrimination based on gender identity is discrimination on the basis of sex under Title IX. That's the Grimm case. Mm-hmm. So not biological sex, but gender identity. And so it could be litigated as a discrimination based on gender identity case. And I think that's what the Supreme Court essentially can just assume away. And now maybe I have not gone carefully through the briefs, so maybe this is one of those concessions that's not really as much of a concession as the Court makes it out to be.
Dan: Yeah.
Will: But once you concede, if you concede that sex for purposes of Title IX is biological sex, then it would seem that discrimination on the basis of sex is discrimination on the basis of biological sex rather than gender identity. And whatever criticisms you might have of the West Virginia rule, it's treating all biological sex alike and failing to take account of gender identity. Yeah.
Dan: So then can we try to understand what the dissents are saying about Title IX? And specifically, could we actually just start with the Jackson opinion at the very end, just to try to make sense of this.
Will: At a high level, my understanding of the dissents was they said, it's true that there's a concession here that Title IX is just about biological sex. But— and so I guess we have to accept it, but we shouldn't actually say it's true because we would like to fight that concession in a future case.
Dan: Yeah.
Will: So Justice Jackson wants to be able to agree with the Fourth Circuit.
Dan: Yeah.
Will: Whereas the majority says, in accepting the concession, that Title IX cannot plausibly be interpreted to refer to anything other than biological sex.
Dan: Yeah.
Will: I mean, in keeping with an anti-subordination approach rather than an anti-classification approach, even though it's normally a constitutional concept, her approach is, well, Title IX is designed to strike at all forms of sex stereotyping and the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. Therefore, it kind of forbids both kinds of discrimination. Like, whichever kind it needs to forbid, strike it down. Which is not like a crazy— you know, at the risk of a silly example, like the 15th Amendment, which forbids discrimination in voting. You know, your colleague Travis Crum has written more than anybody in the world about, forbids discrimination on the basis of race, color, or previous condition of servitude. And so, you know, it's not crazy to imagine a discrimination provision that's like, you can't discriminate on the basis of biological sex or gender identity or— some third thing.
Dan: Okay. So more to say about Title IX?
Will: Let's bring in the Equal Protection Clause.
Dan: Okay.
Will: We can circle that back around.
Dan: This is where things get a little bit more interesting. And just remind people, so we had the Skrmetti case last year. That was last year, right? That wasn't 2 years ago. I believe that's right. Yeah. Which was about state laws blocking access to certain kinds of gender-affirming therapy for transgender children. Court upheld that against an equal protection challenge and left open the question of whether a law discriminating on the basis of transgender status would require heightened scrutiny, right?
Will: Yes.
Dan: It did not answer the question of whether transgender status is a classification that gets some kind of heightened scrutiny. I think strongly suggested that it doesn't, and some of the separate opinions in the case said definitely doesn't, but didn't conclusively resolve that.
Will: Oh yeah. And I think the opposite. I mean, yes, some of the separate opinions said it doesn't. I think it's likely if pushed to answer it, the Court would say it does.
Dan: Sorry, where do you get those votes from? The 3 liberals?
Will: And Roberts and Kavanaugh.
Dan: You think that they would say it's a suspect classification?
Will: At least some heightened scrutiny, a quasi-suspect.
Dan: Okay. Intermediate.
Will: Yeah. So I mean, A, of course, when some people would go ahead and rule something out and some people don't join it, is that because they would rule it out later or because they wouldn't rule it out? You don't know. But so part of the problem at Skrmetti and here is there are sort of 2 different kinds of things, 2 different kinds of anti-trans laws that you might think of as discriminatory. And one is the family in this case and in Skrmetti, where the law tells trans people that they're not trans, essentially. The law says, we're going to treat you as if you are your sex assigned at birth and refuse to acknowledge your gender transition. And so the Court's view in Skrmetti and here is that's not really discrimination. That's telling you you have to comply with your sex assigned at birth.
Dan: And it's not discrimination on the basis of transgender status. It might be discrimination on the basis of sex, right? But in ways that are possibly okay, right?
Will: Right. But also, it's treating you like other people of your sex.
Dan: Yes. Yes.
Will: So it's not— yeah, right. So it's not treating the subgroup of transgender people differently than anybody else of that sex.
Dan: Yeah.
Will: And obviously, that's controversial. I mean, as Justice Jackson says, if, you know, if you accept that B.P.J. is a girl, then there's something wrong with telling her that she has to be a boy. But that's part of the contested question. The other set of things though is what about a law that just treated trans people, gave them something that neither cis men nor cis women got? You just can't be in the military.
Dan: Yeah. Or you can't play sports at all. You can't be on boys' teams, you can't be on girls' teams. Right.
Will: Or what if a state said, in our view, gender dysphoria is a severe mental illness and nobody who has it should be allowed in public school, period. You're just excluded. I think laws like that would be struck down by the Court. And if that required them, maybe that would just be rational basis with bite or something. But if that required them to say that excluding transgender people from school is different from excluding somebody with schizophrenia or some other mental illness from school, I think 5 justices would say so. That's my—
Dan: Sorry, that they would say it's different?
Will: Yeah, that you can't do it. That it's suspect for the state to—
Dan: You don't think they'd say that in the military context though, right?
Will: No, in the military you've got the added— I'm not sure what they'll say in the military, but in the military you've got the added constitutional rights only kind of work in the military thing.
Dan: Yeah. Okay, so this is an official prediction, I think.
Will: Yep.
Dan: Right? And I feel like this is a big swing prediction, right? This is one where you should get extra points if it comes true.
Will: Okay, I'll take them. I agree. I mean, it's perhaps an irresponsible prediction, but that is—
Dan: No, no, no. I enjoy it. I think we should have more big predictions on the show. Right.
Will: But I do think if you think back to Skrmetti and ask, why would the Court not just say transgender status is not a suspect class? It's already written out there. All they have to do is add some votes to Alito and Barrett to make it true. The reason you would not want to say it is because you would not be sure yet what you wanted to say about a law that says, right, transgender people can't play sports, period, for any team, or transgender people can't go to the library.
Dan: Yeah.
Will: And, you know—
Dan: I mean, it wasn't necessary to say it there, right?
Will: Right, right. It's just that it's confusing because in some, like, what is going on here sense, these are anti-trans laws and the Court is saying they're okay. And so it's a little weird for the Court to say they're okay without saying whether anti-trans laws are okay, because this is not really an anti-trans law. Like, that's the kind of legal formalism that gives law a bad name sometimes. But I think doctrinally, you can see why the Court does it. I'm not saying they did anything wrong.
Dan: Yeah.
Will: Yeah.
Dan: Okay. Well, that's interesting.
Will: So that leaves us with whether this is sex discrimination, right?
Dan: Yeah.
Will: And you said the Title IX part— go ahead.
Dan: Which it is, right? I mean, in the sense that—
Will: Well, it's sex discrimination to have sex-segregated sports teams. It's sex discrimination to say, only women can play on the women's sports team. And apparently it's a form of sex discrimination that we're all fine with. Again, at the high level, everybody seems to think Title IX is not unconstitutional.
Dan: Yeah. And this is the idea being that there are what's been referred to in the doctrine as natural differences.
Will: I was trying to figure— so VMI refers to them as inherent differences.
Dan: Inherent differences.
Will: And then at one point also calls them biological differences, but then at a different point calls them inherent differences. So VMI is the Supreme Court case from the '90s where the Court opinion by Justice Ginsburg sort of applies intermediate scrutiny to say that the Virginia Military Institute has to admit women despite the fact they have a kind of really unpleasant macho attitude.
Dan: The adversative method.
Will: Yeah. And they say, and it's true that Virginia says women don't really want to do this, it's not appropriate for women. And maybe that's true for most women, but these women want to do it, and so they get to do it. But then the Court says, that said, there are inherent differences between the sexes that are cause for celebration. We're not getting rid of those.
Dan: Yeah.
Will: And I find this a weird area to teach because it's like, what are the inherent differences? What is the line? And after VMI, it's like, well, there are separate sports teams and bathrooms in prisons. Those seem to be okay. But even, are separate bathrooms caused by physical differences or something, or social differences? I mean, there's obviously a physical difference in how men and women typically urinate, but it's a cultural view that we don't want to all have stalls in the same room most of the time or have people urinating in urinals where people of the other sex can see them. And prisons, is that a biological difference or a social difference?
Dan: I mean, it's kind of interesting under VMI, what about a situation where a girl wants to play on the men's football team.
Will: Yes.
Dan: That's different, right? It's like there's no kind of argument about opportunity for women there. Generally, there's no argument about— the physical differences argument cuts in the other direction. Yeah.
Will: Although the physical differences— so yes, although some people would say one of the worries, one of the purposes of these laws is to stop female athletes from getting injured by male athletes. And you might say even if the woman is willing to assume the risk, you shouldn't let her. Now I think it's the case— this is one of the other interesting grounds for decision below in the Ninth Circuit. One of the Ninth Circuit's arguments was the sex discrimination is that you are protecting girls' sports but not boys' sports. You're letting men play on the— we won't let men play on the women's team, but you'll let women play on the men's team.
Dan: Yeah.
Will: That's treating the sexes differently. What's the justification for that? In, I think, West Virginia, it's a little more complicated. At least one of the 2 states is a little more complicated. I think the rule is that the women can play on the men's team only if there is no women's team. And you might imagine reasons that's the compromise. But also it's asymmetric because we think athletic ability is on average asymmetric. And so there's more of a worry about keeping people from playing on the women's team who are too good than there is about keeping people who are playing on the men's team.
Dan: Yeah.
Will: Part of what I find really strange about this case is just we don't have a lot of areas where the Court explicitly blesses sex discrimination or sex segregation in the first place.
Dan: Yeah.
Will: So to then talk about, well, everybody concedes sex discrimination is okay, how does it work? It's just a very confusing frame of mind.
Dan: Yeah. We didn't have a Justice Ginsburg opinion about gender-segregated bathrooms.
Will: Right. And in race, we don't have this because basically nobody concedes race discrimination is okay, even though maybe it's okay to stop prison riots or to prevent, but still. And you'll occasionally read these old cases where back when race discrimination was okay, like when the— There are these old cases about when the immigration laws used to require you to be white. And then there are these cases where somebody who's Japanese argues that he's white because his skin is light. And the Court says, no, no, no. Even though your skin is white, that doesn't count. You have to be Caucasian. And there's a case where somebody from the Caucasus Mountains who's South Asian says, okay, I'm Caucasian. The Court says, no, no, no. When we said Caucasian, we didn't mean Caucasian. We meant white. And they're— I mean, a sordid business, but they're kind of gone. And the sex version is not totally gone. If there are going to be separate teams for the sexes, there has to be a law of sex, which is sort of the thing that makes this whole thing seem strange and provides some basis for the challenge.
Dan: Okay. So, I mean, is this— in that sense, is this breaking new gender discrimination ground outside of the trans context, actually?
Will: Maybe, yes.
Dan: To the extent that this is maybe one of the bigger kind of sex segregation things that the Court has blessed?
Will: Well, yeah, I guess even more, here's what confuses me. On the one hand, I don't see how this decision could be wrong. Once you're going to have sex-segregated sports teams, I guess you could decide that they should be gender identity segregated sports teams instead of biologically sex-segregated sports teams. But once you've decided that the Title IX regime is facially constitutional, this sort of seems to follow. And yet, I think the Court's reasoning is inconsistent with huge amounts of its prior sex segregation case law.
Dan: In the sense that those cases required a tighter fit with the reasoning and the facts?
Will: Yeah, potentially, and didn't allow stare decisis.
Dan: So in VMI, right? I mean, here the Court— so in this case, the Court is making pretty broad brush statements about the differences, men and women, physical differences. And is your claim that that same analytical approach would lead to the opposite result in the VMI case? That like, yeah, men are stronger, they're better suited for the adversative method.
Will: Yes. Right. So 2 mainstays of the case law till now. So one, the anti-stereotyping principle, which goes back even to Craig v. Boren, where the Court says you can't have different drinking ages for men and women, even though there's lots of statistics that the men drink more and drive drunk more and are problem drinkers more. And that's probably consistent with many people's lived experience. The Court says you can't stereotype. And then in VMI, where the state says, look, this is just not something that's appropriate for women, and the Court's response is, well, it's appropriate for a few women. And if it's appropriate for a few women, they get to come in.
Dan: Yeah.
Will: And those 2 moves, like, don't stereotype the sexes even on the basis of statistically true facts, and it may not be many women, but you gotta let them. Those moves at least seem to push in the opposite direction here. You can analytically distinguish them a little bit. I mean, in VMI, I think Justice Ginsburg's point was not, we are creating an exception for a small subclass of women.
Dan: It's just you can't draw this distinction at all.
Will: Right. Her view was any woman who wants to go to VMI can. It's just not very many will. Whereas— so the equivalent challenge here would be to say—
Dan: I mean, there the gating is being done by—
Will: By the adversative method.
Dan: Yeah.
Will: Whereas here, the challengers don't want to say any boy who— any biological boy who wants to play as a girl can. In fact, they are at pains to deny that. And so that's why formally it's not controlled by VMI. But the sort of broader question about how do you think about sex discrimination and how intermediate is intermediate scrutiny?
Dan: Yeah. And the dissent, the principal dissent by Justice Sotomayor, I think, is taking the position that there should be some opportunity for an as-applied type challenge or kind of a narrow exception here.
Will: Right. So this is actually kind of amazing. The doctrinal question that people talk about a lot in argument is, is there such a thing as an as-applied equal protection challenge?
Dan: Yeah. There's a footnote about this in Justice Sotomayor's opinion. But sorry, footnote 7 on page 18. But yeah, go ahead and finish what you were going to say.
Will: Well, and you'd think there has to be an answer to that question. And I guess you'd also think the answer has to be yes. As-applied challenges are the normal kind of challenges. Why would there not be as-applied challenges? On the other hand, the point that the majority to some extent and the states make is since the whole basis of intermediate scrutiny is you have to have a pretty good fit, but not a perfect fit, if you could have as-applied challenges, then intermediate scrutiny would become strict scrutiny because anybody who was part of the fit is reasonable on average, but not a good fit for you, would then have a challenge.
Dan: Yeah. I mean, so she says in this footnote, some equal protection challenges, if successful, may mean that a given classification is impermissible in all applications. And she cites Romer, which is the Colorado anti-gay law from the '90s. But she says, in other cases, the classification may constitutionally be applied to some individuals. I think to reconstruct her point is the argument that she makes throughout is it's not kind of individual-based. It's about distinct subclasses.
Will: Right.
Dan: So I think her view would be, yeah, the mere fact that there's a couple people that don't fit into this rationale doesn't defeat— doesn't satisfy intermediate scrutiny. But if you can point to kind of a carve-out, this group is kind of identifiable and it doesn't have to be huge, but big enough, that's enough to cause a problem.
Will: So what about, let's call them scrawny men. Now maybe you're going to say that's not a sufficiently definable group, although we could just arbitrarily give some height, weight, BMI, muscle mass criteria for it if we needed to. And then they would say, we too should be allowed to compete on women's teams because the main rationales for keeping us off the women's teams based on injuries and competitiveness are not true for us either. And now the dissent disagrees. The dissent says, I would still exclude them.
Dan: This is footnote 9 on page 23. And I got to say, I didn't— This is the part where I didn't totally follow the reasoning. Do you?
Will: I've read this before.
Dan: She says, the Equal Protection Clause does not require such exemptions, referring to cisgender men who don't pose safety concerns or threaten competitive fairness for whatever reason. Maybe they have low testosterone or something. That is because the state's interest in fairness is geared toward eliminating the athletic advantage inherent to sex identified at birth, not toward eliminating all athletic advantages in general. A cisgender boy's equal protection claim thus would fail because even if he is, for example, shorter than the average girl, he still possesses the same athletic advantage that is inherent to his sex identified at birth as any other cisgender boy. I mean, doesn't— isn't that just sort of assuming the conclusion, right? I thought the whole argument would be perhaps that like I don't have those advantages.
Will: Right.
Dan: Because I fall on the left tail of the distribution of sex-based characteristics, right?
Will: Well, I think the idea is you do still have an advantage. Were it not for the testosterone-producing genes and so on that you were born with, you would be even scrawnier. So you do still have this inherent advantage, even if the inherent advantage didn't get you very far. But you have to imagine a kind of complicated genetic picture about what is assigned and what is not, and what's a sort of random draw from things that have already been assigned.
Dan: What if the person still identifies as a boy but can show that, I have an endocrine problem and the balance of hormones in my system is actually closer to a woman's than a man's? Right.
Will: So maybe that would be different. I mean, that's the— The footnote is worded in this complicated way too, where it's like, there's no required exemption on the state's 2 stated interests here, as if if the state had different interests, then it might have to have an exception. And that kind of makes you wonder, how are they really going to deal with it? This is the logic behind saying you can't have an intermediate scrutiny regime where you then have these as-applied carve-outs. And there are some past cases that are not— I was going to say, are not necessarily regarded as the Court's finest hour, like Nguyen, the immigration case where the Court upholds different citizenship rules for parental— for fathers and mothers based on Justice Kennedy's theories about parenthood.
Dan: Mm-hmm.
Will: And the Court even says in Nguyen, now it's true that these rationales aren't necessarily true here. The father in this case seems to be very involved and have much more connection to the child, but we said it's okay as a class. They don't use the phrase, there is no such thing as an as-applied equal protection challenge, but they use the logic.
Dan: Okay. And this is going to doom that kind of argument going forward.
Will: I guess I don't— I mean, now I'm not willing to make a prediction. I think the logic of this opinion, if you treat it logically, potentially does a lot to change the sort of direction of the sex discrimination doctrine so far.
Dan: Would you have an example of— again, you don't even have to frame this as a prediction, but just what is a fact pattern that you think someone could make a new argument?
Will: Well, it's like rerun VMI on very slightly different facts where they say the adversative method is going to result in women getting hurt. And I don't know, whatever else you have to say. And yeah, it's not true for everybody, but it's mostly true. And then Justice Ginsburg says, well, a few people want to do it. And the Court says, well, a few people's not enough.
Dan: That kind of thing. Yeah. I mean, it runs in the other direction. I mean, I think that part of this has to be about this law is about protecting women. And does it look different if there's a state law that says no girl can ever play football, even as a place kicker or something? Right.
Will: This is why I don't have a prediction, is it could be that this opinion is just an opinion about protecting women or an opinion about sports or just an opinion about women's sports, and that its logic won't really be generalized outside of places where there's already a kind of well-entrenched form of sex discrimination that we all agree is— not all, that most people think makes most people better off. And so maybe it will extend to bathrooms in prisons. But yeah, like, I would anticipate the Court saying something similar if a transgender woman tried to transfer from a men's prison to a women's prison.
Dan: Yes.
Will: Now, again, it might depend, and that's a complicated situation too, but I anticipate the Court being willing to say something similar. I also wonder, could you tell, is this opinion open to the view that different sports are different? If somebody who wanted to play some sport where the supposed inherent advantages of men were not as obvious, would they get a different kind of as-applied challenge?
Dan: I think they could certainly try. I don't see a lot in this opinion that seems interested in those kind of nuanced arguments.
Will: Right. But sometimes the Court's not interested in them. That means if they come up later, you could still— at argument, the SG's office, I think, represented by Hashim Mooppan, floated, for instance, if a law like this applied to sports and math and chess, maybe you could bring as-applied challenges to the math and chess segregation. And is chess a sport or is chess a game? No. I think then we'd have to go—
Dan: Wouldn't there be certain— I mean, there's people who make controversial arguments about biological differences in math and chess.
Will: Right. I was going to say, I think chess is in fact sex-segregated now. I think there are men's and women's leagues. And yes, then we'd have to get into Larry Summers' questions about, and would it matter what the rationale was? If there was a girls' math Olympiad and a boys' math Olympiad as a way of promoting women in math, would that— if it was genuinely to promote, you know, women in math, would get lesser scrutiny, or would we say that's terrible stereotyping? I find the law of sex very confusing. Can I float one other thing before we—
Dan: Sure. Okay.
Will: So there was something else interesting in the lower court opinions that sort of went away, which is the Ninth Circuit makes this point that another problem with Idaho's law— they say Idaho's law is actually much worse and more burdensome than most of the other states that have these kinds of laws in terms of how demanding is the testing to prove you're really a girl or a woman, and it could be done if anybody challenges you and so on. And apparently even Doriane Coleman, who's written some research generally seen as being on the pro— on the side of these laws, wrote to say the governor should veto this law because it went much further than anything she had ever written about and so on. And one of the 2 plaintiffs below was a cis woman whose challenge was, I don't want to have to go through all this invasive testing.
Dan: Yeah.
Will: And indeed, I have a relatively masculine-presenting appearance despite being a cis woman, and I'm worried I'm going to get challenged all the time and have to go through all this crap. And you don't make the men do it. There's no testing to be on the men's team. Because it's only protecting women's sports.
Dan: That's interesting.
Will: So it sort of dovetails with the, you're only protecting women's sports, not men, and you're protecting it by imposing a burden on female athletes that the male athletes don't have to go through. And John Hart Ely would say, part of how we can make sure these burdens aren't too bad is making sure everybody has to go through them. So I thought that was very interesting. She apparently drops out. I think her case is moot, actually moot.
Dan: And there is a mootness issue in this case, by the way, that's largely dealt with.
Will: Yeah.
Dan: In footnotes. We don't really have to get into.
Will: I sort of wonder if that— and there's nothing about it in these cases. I sort of wonder if that challenge is still alive.
Dan: Yeah, I would like to see that play out.
Will: And the remedy wouldn't necessarily be to invalidate the whole thing, and it wouldn't necessarily be relief for some of the trans plaintiffs, but it might still say— I mean, to the extent it's true that the Idaho law is unusually burdensome and invasive in how it's, like, getting into people's bodies. Maybe that's still on the table.
Dan: Yeah. Okay. This opinion also reinforces Justice Kavanaugh's role as the sports justice. He really likes sports. I think anytime there's a case involving sports, he often will comment on it on the orders list or write a separate concurrence. He did that in one of the NCAA cases, Alston. This one is full of some extremely lofty language about the importance of sports to women. It kind of reminded me of— is it Flood v. Kuhn?
Will: Yes.
Dan: The one that has the Blackmun list of all the great baseball players. It's not quite like that, but in the final page or so of the opinion, there's this long description of all the great things that women get out of sports. They put a championship trophy or all-league award on their bedroom shelf and it stays there forever as a reminder of their love of the game and pride in their achievements, et cetera, et cetera. So Justice Kavanaugh is a sports guy. Yes.
Will: My favorite thing about that passage in Flood v. Kuhn is where it names all these great baseball players, most of which nobody's ever heard of anymore, is that it's not a majority opinion.
Dan: I think it's only got one other justice, right?
Will: No, Stewart and Rehnquist both join it.
Dan: Okay, Stewart and Rehnquist.
Will: But Burger and White both don't join it. And the story I've heard somewhere is that Blackmun was trying to get joiners for that one too, and went to Justice White and was like, what do I got to do to get you to sign onto the list? And the story I heard is that Justice White teased him and named a couple of really terrible players. And he put them in. Well, and then Blackmun was bargaining with him. He was like, well, I can give you Schmidt, but come on, you can't really believe I should put in Carlisle.
Dan: But okay, well, we will see. I guess one other thing we just didn't mention is this case doesn't resolve the kind of flip-side question of whether Title IX does in some circumstances require gender-segregated sports and thus require a rule that transgender athletes be excluded.
Will: Yes.
Dan: It seems like quite possibly it does. Based on the reasoning here?
Will: Yeah. I mean, the Court does not opine on that. That litigation is going on in lower court. But if it didn't, what would be the basis for saying it doesn't?
Dan: I guess I don't fully understand the circumstances under which Title IX requires non-gender-segregated sports, non-sex-segregated sports. I mean, clearly you can have some. I don't think a school could satisfy its Title IX obligations by just saying all of our sports are open to men and women, if that doesn't realistically create opportunities for women.
Will: Yeah, I see. So maybe it has an impact test. So maybe if the ultimate Title IX obligation and the ultimate purpose of the sex-segregated sports is to provide equal opportunity for women, if in fact allowing the trans people is not interfering with equal opportunity for the biological, for the cis women, then it might be okay.
Dan: Yeah, but that depends on stuff about Title IX case law that I just don't know. But I mean, clearly, I think clearly if you had a system that said trans women can participate and then the men's teams are all biological men and the women's teams are 60% biological— people assigned male at birth, then I think there's got to be a problem there, right? If a female plaintiff comes in and says, I want to participate, and actually all the spots on both teams are being taken over by people who are biologically male within Title IX's definitions as construed by the Supreme Court, then yes. I think that's not the same thing as saying anytime there's a rule, a school has a rule that theoretically allows transgender people to participate, but only one has played in 30 years, I don't know.
Will: Right. Yeah.
Dan: But I mean, I think, yeah, quite possibly it does. And I imagine we will see that very soon.
Will: Yeah. I was debating whether to issue another prediction that the Court will have that case soon, but maybe the lower courts will all coalesce on one view.
Dan: I think we should say that the Court will get that case. I'll make the prediction in the next 2 years.
Will: Okay. My prediction is either the Court will get that case in the next 2 years, but if they don't, it's because all the lower courts have sort of coalesced behind a view that largely Title IX does not allow substantial numbers of trans people to play.
Dan: Yeah. I mean, it's interesting. Those cases are presumably going to rise in more liberal circuits because more than half the states now have a rule like Idaho and West Virginia's. And so it's going to be states like Massachusetts, I guess, or I don't even know the list of states, but it's going to be blue states.
Will: There was an en banc Second Circuit case, I think, about this issue. We talked about it when we talked about Landor, where it then goes off on Spending Clause questions because the suit for damages.
Dan: Yeah. Which is also— we didn't talk about the Gorsuch concurrence, which does mention the Spending Clause issue and says Title IX does not give clear enough guidance. One reason to rule this way is it doesn't give clear enough guidance to the funding recipients that this is what it would be requiring of them.
Will: Right.
Dan: We also didn't talk about his— I know you've got to go. We didn't talk about his explanation of why this is different than Bostock, his extremely controversial case saying Title VII prohibits discrimination on the basis of transgender status.
Will: Right. And that's because in the employment context, there's no sex segregation. So not discriminating on the basis of biological sex means treating everybody the same and not making people act consistently with their sex assigned at birth. Yeah.
Dan: I mean, I actually found that persuasive as his explanation. I mean, I think a lot of people are like, oh, I thought Justice Gorsuch was pro-trans and now he's not. But I mean, it is a difference, right? The law here actually not only authorizes but requires certain forms of discrimination on the basis of sex. And so it is different, right? It's different than Bostock, which says you can't do that.
Will: Right. I mean, it was always the question was like, was Bostock motivated by some sort of pro-equality, pro-trans, pro-LGBT view, or was it motivated by formalism that was just sort of maybe even happy to discover that it had pro-equality, pro-LGBT consequences? And now I guess we see the confirmation that it was the second.
Dan: Yeah. Between this and Skrmetti, at least he's not sort of like— trans issues are not like his Indian law issues where basically we kind of know how he's going to vote every single time. I think he's like 10 for 10, 11 for 11, something like that.
Will: I was afraid you were going to make that analogy.
Dan: Why? What's wrong with it?
Will: It's so reductive and identity-based, Dan.
Dan: Well, I'm saying it's not like that.
Will: What is, friend? Yes.
Dan: Okay. Well, people believe that. I'm not going to make a statement about what's true. I'm just saying that is a pattern that we can deduce from the case law.
Will: Yeah. So if a tribe wanted to have sports teams.
Dan: We'll find out. I'm going to predict we won't get that case.
Will: I agree.
Dan: All right. Well, any final thoughts?
Will: I was going to say the Court does have a case, Santa Clara Pueblo, about why Indian tribes are allowed to engage in sex discrimination that ordinary— nobody else is. So kind of already had that case.
Dan: Okay. But not sports, right?
Will: No. It's about property and voting.
Dan: All right. Thanks for listening. Please rate and review wherever you get your podcasts. Visit our website, dividedargument.com, for transcripts, blog.dividedargument.com for commentary from the expanded Divided Argument universe, store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com. You can leave us a voice message using our website or leave us a voicemail the traditional way, 314-649—3790. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. And if there's a long delay between this and our next episode, it will only be because Will is going to refuse to record in order to up his relative percentage on the scorecard by making my prediction that we're going to beat the record false.
Will: Oh, I should just predict we're not going to have another episode for 6 months and then turn up one day. I'm not doing that.
Dan: Takes us back to our prediction markets conversation.