A PHIL/COGS 26 Philosophy & Computers course lecture

Equal protection, equal playing fields, and the transgender athlete cases: thoughts about the relationship between arbitrariness and wrongful discrimination

The transgender women plaintiffs in Little v. Hecox and West Virginia v. B.P.J., cases which were argued this past January at the Supreme Court, both claimed that the state laws at issue violate the constitutional guarantee of equal protection as applied to them because neither plaintiff would have a competitive advantage against other women and girl athletes.  The medical treatment that each receives negates, both argued, any advantage they would have had due to being assigned male at birth. This argument rests on the view that laws that treat men and women (or boys and girls) differently fail constitutional muster if they are irrational as applied in the individual’s case.  The states argued that this test is too demanding.  Instead, they claimed the laws satisfy equal protection if most people born male have a competitive advantage over most people born female.  While the two sides disagreed about how to assess whether the laws were arbitrary, they agreed that this issue was relevant.  The technical legal question of whether so-called “as-applied” challenges are permissible in sex discrimination cases thus gives rise to a deeper question about the relationship between the rationality of laws and their constitutionality.  Or, more foundationally still, the transgender athlete cases ask us to investigate whether it matters morally if the lines laws draw are rational, both in the individual case and in the aggregate.  This talk will consider the provocative claim that the relationship between arbitrariness and wrongful discrimination is far more attenuated than either the plaintiff athletes or the defendant states assume.