Trans Athletes

 The Supreme Court's decision in the trans student athletes case got kind of buried in the headlines earlier this week, since it was released the same morning as the surprisingly reassuring birthright citizenship decision. 

I went back to look up the opinion last night, though, and it really is a nasty little piece of work that probably would have received more attention, had the Court not released such a blockbuster positive ruling on the same day. 

The Court's majority strains credulity in the first place by asking us to pretend that this case is really just about the justices' newfound devotion to the sublime importance of women's and girls' sports, and nothing at all to do with what we all know about the justices' respective loyalties in the culture war. 

But suppose we are as naïve as the Court wants us to be, and we take the majority opinion at face value. 

Kavanaugh tells us that the important government interests implicated in this case really boil down to two: safety in girls' sports and competitive fairness. 

The safety of players on girls' teams would be compromised, the Court suggests, if "biological males" could compete against their players in "contact sports." 

M. Gessen raises a good point in response to this: if this is true, then what about the safety of trans girls who have already taken puberty blockers and hormone treatments, and who will now be forced to compete with a bunch of cis boys full of testosterone?

And as for the "competitive fairness" question, the Court here creates a false dilemma. The choice in this case was never between a world of total sex segregation in sports and one in which any student athlete could pick any team they wanted, regardless of "biological sex." 

The question in this case was merely whether a student can ask for an individualized determination to see if their physical traits allow them to compete fairly as a member of the team that aligns with their gender identity—in other words, what the school district in this case was already doing, before the state legislature imposed a one-size-fits-all approach. 

Justice Kavanaugh is at least genteel enough to pretend that all of this has nothing to do with disrespect or animus toward trans people. "No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified," he assures us. 

Justice Thomas can't even be bothered to play along to this extent. He hastens to do some "ostracizing" and "vilifying" of his own, implying in his concurrence that to claim a transgender identity at all is a form of dishonesty and inauthenticity. (In doing so, Thomas aligns with extremists in the executive branch, who have banned transgender soldiers from serving in the military on the same cracked theory). 

"Men and boys with gender dysphoria are not women or girls, even if they believe that they are," Thomas writes in his concurrence, "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. [...] 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]."

In other words, as Clarence Thomas sees it, trans people are all liars who are scamming us, and whose mere existence as trans people somehow violates our rights, rather than us violating theirs, by discriminating against them and banning them from shared activities, professions, and sports teams. 

I am reminded here of a line from Whitman, which Virginia Woolf aptly quotes in her Three Guineas: 

Of Equality—As if it harm'd me, giving others the

         same chances and rights as myself—As if it

         were not indispensable to my own rights that

         others possess the same;

Reading these two opinions—the majority's and Thomas's concurrence—back to back, a line of A.E. Housman's came back to mind: "Though both are foolish, both are strong." 

Kavanaugh and Thomas may be stupid, but they have the power. They belong to the ideological majority on the Court of last resort. And so, as they also proved in the Haiti TPS and the FTC and the Voting Rights Act cases, no matter how irrational their opinions may be, now matter how inconsistent with past precedent or logical or moral reasoning, they have the power to give them the force of law. 

And since, my soul, we cannot fly

To Saturn nor to Mercury,

Keep we must, if keep we can,

These foreign laws of God and man.