Supreme Court Ruling Solidifies Women’s Second-Class Status

Women — all women — should be infuriated by last week’s Supreme Court decision in West Virginia v. B. P. J. that legally declares women to be the second sex. For nearly two centuries, women in the United States have fought tirelessly to prove that we are not inferior to men simply by designation of our sex and that, in fact, centuries of social conditioning, authorized in policy, law, and norms, effected the subordination of women to men. That sexual difference does not negate women’s dignity or worth. That women, as Catharine MacKinnon and countless feminists have told us, are not oppressed because of “hormones, chromosomes, vaginas, breasts, ovaries” — if we have them — but because of “the misogynistic meanings male dominant societies create and project onto us.”

This decision is dastardly, absolutely insidious in how it villainizes trans women and girls under the auspices of “protecting women” through the legal rhetoric of claiming that women are inferior to men so that, according to the Court (all justices, save Justice Jackson), it is within the state’s interest to ensure the “safety and competitive fairness” of “biological females” in sports.

Contrary to some opinions, this decision is not “narrow” or “limited,” and should indeed raise alarm. Because, yes, while the Court’s decision was anticipated based on very recent precedent that defines “sex” as purely biological, particularly the Court’s 2025 Skrmetti decision, which declared that hormone therapy is kosher for cisgender children but not trans children, the decision is consistent with a larger conservative effort — from state laws to executive orders — to legally codify women as second-class citizens. The decision in West Virginia v. B. P. J., therefore, is an affront to all women as it represents the endeavor to systematically deny women — not just trans women even though the target is trans women — full and equal rights and liberties.

“A Biological Line”

The Supreme Court denied respondents B.P.J. of West Virginia and Hecox of Idaho on both legal grounds on which they petitioned the court: the Equal Protection Clause of the Fourteenth Amendment and Title IX. Both are different legal bases for sex equality jurisprudence that, as legal scholar Naomi Schoenbaum explained, has been weaponized to exclude trans people (usually women) from the sex-specific domains in which they seek inclusion — here, women’s sports teams.

The former, providing that no person should be denied the “equal protections of the law,” nowhere mentions “sex”; the latter, which nowhere mentions sports, declares, “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.” It was the addition of the Javits Amendment to Title IX, in 1975, that expanded the law to provide, “with respect to intercollegiate athletic activities, reasonable provisions considering the nature of particular sports.” Justice Kavanaugh, in his opinion on behalf of the Court, refers to this amendment as establishing “a biological line — a line where biological males play only on male sports teams and only biological females play on female sports teams.”

As I have written in Breaking Free, the logic of gender equality relies on an exclusionary binary structure — man and woman — that cannot account for trans, queer, and gender-nonconforming people without jeopardizing its basic structure and, in my estimation, the entire racist and transphobic foundations of equality feminism itself.

The gender binary is essential to male supremacy, what the Institute for Research on Male Supremacism has defined as “the belief in cisgender men’s supremacy and right to dominate and control others.” But conservatives have learned that they cannot rely on gender — now commonly accepted as a cultural, social, and racial construct, thanks to the very women’s and gender studies programs that are now under attack — to advance their vision of a gendered society predicated on the fallacy of women’s innate inferiority. Instead, as evidenced by this Supreme Court decision, they have chosen “sex” — in their minds and contrary to established biomedical research, unambiguously dimorphic and an irreducible biological fact — as the conceptual linchpin for their white Christian nationalist political agenda.

Kavanaugh’s male supremacist methodology is evident in his superfluous repetition of the language of sex and a deliberate elision of critical differences between terms. The legal facticity and irrefutability of sex as a biological truth is not predicated on actual science — which he explicitly refuses to engage with — but on the citation of state law and misreading of constitutional law. To legally justify that the states have a “reasonable” “interest” in the “safety and competitive fairness” of women’s sports, Kavanaugh’s strategy is to elide the differences between “sex,” “biological sex,” and “sex assigned at birth” and simultaneously strongly distinguish the petitioners as “biological men” who “identify as female” (emphasis added). The rhetorical finesse of his strategy is blunted by Clarence Thomas, who feigns no pretense with his cruel opinion: “A man does not have a legal right to compete against women just because he believes that he is a woman.”

Accordingly, bolstered by the respective laws in both petitioners’ home states that specify “that sex is determined by biology,” Kavanaugh explains, “the Constitution does not require that schools determine eligibility for women’s and girls’ sports based on gender identity rather than biological sex.”

To align with the state laws under consideration in this case, Kavanaugh purposely defines “sex” as “biological sex” in order to justify his interpretation of federal law: “The term ‘sex’ in Title IX, the Javits Amendment, and the Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term ‘sex’ at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context.” The slippage between the two is important, since both scholarship and legal precedent dispute this equation. He likewise equates “sex assigned at birth” with “biological sex,” using them interchangeably to neutralize the scientifically proven complexity of sex (chromosomes, gametes, gonads, etc.) to a far less sophisticated “science” of looking at a newborn’s genitals when it emerges from the birth canal and assigning it a sex (“It’s a girl!”) — lest we forget that medical practice, too, is a patriarchal institution.

By asserting the equivalency of these terms, Kavanaugh narrows the ground that he must cover to satisfy the intermediate — not strict — scrutiny standards of this case; the former demands the government prove an “important interest” rather than a more burdensome “compelling interest.” (“When a sex-based classification is justified as a constitutional matter, as it is here, States need not make case-by-case exceptions.”) The loose requirements of intermediate scrutiny mean that the Court’s opinion can pass muster on flimsy sex classifications about men and women. It conveniently exempts the Court from having to engage with the science or consider the individual specificity of a person’s sex, which would, Kavanaugh wrote, create “an enormous practical and administrative problem.” Determining which athletes qualify for girls’ and women’s teams, Kavanaugh complains, “would be an almost impossible task for a judge to perform on an equitable basis.”

Kavanaugh’s purported concern about administrative workload indicates that he knows that the “biological line” is arbitrary — dictated by themselves, the people in power — rather than fixed and immutable. In practice, determinations are made on a case-by-case basis; the line is observed through invasive genital inspections and testosterone testing. Women whose bodies do not align — or are presumed not to align — with the sex standards created by the racist, patriarchal medical establishment are penalized, even denied the right to participate. And, worse, women who are perceived as being too good are accused of being men — because, obviously, women cannot excel at sports and can only be “real women” if they perform within the confines dictated by men. We’ve seen instances of this: cisgender girls facing false accusations because they are too good, usually from the jealous parent of a kid who lost to them. These parents then ridiculously demand to see birth certificates or, infuriatingly, demand genital inspections. Fabricating a “biological line” between men and women is essential to the larger project of instantiating the binary sex hierarchy in law — which affects all women, cis and trans and everywhere between.

The biological line is really code for racist gender stereotypes, which have categorically impacted Black and brown women more than white women. The arbitrariness and racist underpinnings of this biological line were evident in the absurd World Athletics’ ruling that declared that South African runner Caster Semenya has the right level of testosterone to run 100- or- 200-meter races, or long distances greater than 1 mile, but has too much testosterone to run races between 400 meters and 1 mile. Or in the banning of Orlando Pride soccer player Barbara Banda, a Zambian cisgender woman, from international competition because she naturally produces what the Women’s Africa Cup of Nations determined was “too much” testosterone. “These binaries that we have in sport don’t match up to the world,” historian Amira Rose Davissaid in an interview with NPR. “Sports must maintain this really, really violent binary at all costs, no matter who it hurts,” she added. “And right now, that burden, that pain, that harm is most keenly felt by women of the Global South.”

The line is a limitation on all of us, even though it moves according to the whims of men and falls apart under any kind of scrutiny.

Again, the Court does not need to contend with the science, only “the legal question” — which Kavanaugh tellingly italicizes — that is decided “as a matter of text and history.” As he says repeatedly, “the laws do not classify based on gender identity or transgender status. The laws classify on the basis of biological sex.”

Drawing this “biological line” allows Kavanaugh to then project gross sex stereotypes onto men and women to separate them in terms of “inherent” abilities. He employs the word “inherent” two dozen times to imprint this misogynistic belief into court doctrine as ontological truth: “Biological males generally possess inherent physical advantages in sports.” He calls this an “undisputed proposition.” Of course, physical stature or prowess is not the same as athletic ability, which, depending on the sport, demands much more than physical size and strength, including but not limited to endurance, biomechanical skills, technique, and mental acumen. Wealth is even a considerable factor in athletic achievement, given that it enables a person to join competitive sports teams, pay for practice spaces and coaching, and buy equipment.

Kavanaugh is then able to ground the oft-employed transphobic argument about “safety and competitive fairness” via his sweeping, sexist generalizations about men and women. “The Court concludes that separate sports teams for biological males and biological females are reasonable given the inherent physical differences between the sexes,” he asserts. “The States argue — and the Court agrees — that the interests of safety and competitive fairness are important interests for purposes of equal protection analysis. And the States’ sex-based classification — limiting women’s and girls’ sports to biological females — is substantially related to those interests.”

Given the realities for so many women athletes — exclusion, institutional indifference and hostility, abuse, ridicule, being undervalued and erased — in which states have rarely intervened, it is utterly fascinating for the Court to claim that states have a “interest” in women’s sports.

What Sex Does

It was only recently that conservatives pulled back from the argument about gender identity and adopted a sex-based political strategy. In 2023, Kansas became the first state to establish a legal definition of “sex” in terms of reproductive capability as part of legislation referred to, tellingly, as the “women’s bill of rights.” Several states across the country are passing similar legislation to define sex as “biological sex” that is “assigned at birth” and is determined by reproductive functioning.

The patchwork of state law, in tandem with federal actions like President Trump’s 2025 executive order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” and right-wing think-tank policy initiatives, such as the Heritage Foundation’s “Defining SEX Act,” comprise what CUNY political science professor Paisley Currah has documented as the “anti-trans playbook,” designed under the auspices of “protecting” or “saving” women.

In his book Sex Is as Sex Does, Currah argues that “sex is a legal effect” by showing how “sex is manufactured in and through regulations, formal and informal policies, judicial decisions, and legislative enactments.” Anti-trans legislation and court decisions like West Virginia v. B. P. J., according to Currah, thus “index a larger anxiety about the changes wrought by feminism. Debates about which bathrooms trans girls and women use and which teams they play on give conservatives the opportunity not only to excise trans people from public life but also to re-subordinate women.” Yes, all women as second-class citizens.

Cisgender women who fight to exclude trans women from womanhood and sex-specific domains believe that doing so will protect their own rights and freedoms — a belief that is representative of what I call the equality mindset, framed by the thinking that rights and freedoms (and positions in the boardroom and other positions of authority) exist in scarcity for women. As Currah explains in his dissection of the “anti-trans playbook,” this trans-exclusionary thinking serves the ends of male supremacy through a philosophical alignment with the very anti-feminist position that “biology is destiny.”

The states’ professed interest in women’s sports is a red herring; their real interest is in sex-based classification to preserve the hierarchical stratification of our male supremacist society. Sports is simply one domain — but an important domain — in this endeavor, since its sex-segregated athletic practice helps to reinforce the belief that men are “inherently” physically superior to women.

The Court, referencing state law, defined what sex is (“biological”) in order to substantiate what it does in the service of male supremacy. This is the purpose of sex in conservative strategy. This latest Supreme Court decision doesn’t only dehumanize and ostracize a trans girl in West Virginia and a trans woman in Idaho. It is part of a nationwide, multi-institution project to oppress all women.