Jessica A. Clarke (University of Southern California Gould School of Law) has posted B.P.J.’s Deviation From Heightened Scrutiny (Yale Law Journal Forum, forthcoming) on SSRN. Here is the abstract:
In West Virginia v. B.P.J., the Supreme Court upheld a state law barring transgender girls and women from girls’ and women’s sports. In doing so, it reasoned that the law met the heightened scrutiny standard that applies to sex-based classifications under the Equal Protection Clause. That heightened scrutiny standard, developed in a set of cases beginning in the 1970s, forbids laws based on “overbroad generalizations” about the differences between men and women. Nevertheless, in B.P.J., the Court foreclosed factual inquiry into whether West Virginia’s transgender sports ban was based on overbroad generalizations, even though the ban applies to all transgender girls and women, regardless of whether they pose any threat to safety or competitive fairness. A dissent accused the B.P.J. majority of “[a]pplying a form of heightened scrutiny divorced from this Court’s cases.”
But this is not the first time the Court has deviated from its heightened scrutiny precedents. It has done so before in a handful of cases in which it deferred to legislatures based on the Justices’ own implicit balancing of the interests at stake. These cases are artifacts of unique circumstances; they stand for no doctrine. Past departures concerned sexual assault, the military, and citizenship. They involved challengers whose interests the Court saw as disconnected from heightened scrutiny’s normative underpinnings; classifications the Court thought reflected real differences between the sexes; threats the Court regarded as outsized; and conventional gender mores the Court wished to preserve. In B.P.J., the Court repeats the errors of these past deviations, ignoring the requirements of heightened scrutiny to preserve conventional gender mores with respect to sex and sports, and treating transgender people as strangers to its heightened scrutiny jurisprudence. This Essay argues that B.P.J., like past deviations, should be treated as an erroneous departure from the heightened scrutiny canon.
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