Reva B. Siegel (Yale Law School) and Mary Ziegler (University of California, Davis) have posted Dismantling Equality Rights Through "Biological-Sex" Talk, which is forthcoming in Volume 105 of the Texas Law Review. The abstract:
In rejecting the sex-discrimination claims of transgender claimants in United States v. Skrmetti (2025), the Supreme Court introduced a new term for sex into equal protection law: “biological sex.” The Court made clear its view that laws recognizing biological-sex differences warrant judicial deference. Claims on biological sex also appear in the legislation and briefing of West Virginia v. B.P.J. and Little v. Hecox, cases challenging bans on transgender athletes’ participation in girls’ teams under the Constitution and Title IX this Term.
Biological sex is a movement signature—the fingerprint of advocates who are supplying the Supreme Court with resources for the stealth overruling of United States v. Virginia (1996), Justice Ginsburg’s opinion for the Court explaining the Constitution’s guarantees against sex discrimination (which judges apply in cases of discrimination on the basis of sexual orientation and gender identity, as well). We trace the usage of biological sex to the declarations, bills, and briefs of faith-identified social conservatives who mobilized against LGBT victories in Obergefell v. Hodges and Bostock v. Clayton County and under Title IX. Represented by advocates such as Alliance Defending Freedom (ADF) and Heritage Foundation, these Americans are now seeking reversal of constitutional and civil rights of other Americans as contrary to nature and divine command.
Conflict over transgender rights is tied to conflict over sexual orientation and gender roles in overt and subterranean ways, as this Article shows. The idiom of biological sex draws upon physiological naturalism—traditions of reasoning from the body—that courts long employed when deferring to laws enforcing gender roles before the rise of sex equality law.
By following talk of biological sex in state statutes and lower-court cases, we show that the movement is providing resources for the stealth overruling of Virginia as the decision reaches its thirtieth anniversary. Biological sex directs judges to defer to the judgments of the political branches rather than to scrutinize sex-based state action for sex-role stereotyping—a code associating sex difference and judicial deference that revives in contemporary idiom the very traditions of reasoning from the body that United States v. Virginia rejected.
Read on here.
-- Karen Tani
