The Court Chooses Reality

The Supreme Court just answered one of the most consequential constitutional questions of our time. In upholding the laws of West Virginia and Idaho reserving girls’ and women’s athletic teams for biological females, the Court did far more than decide who may compete in school sports. It reaffirmed a foundational principle of constitutional government. The law must remain anchored to objective reality.

Congress enacted Title IX in 1972 to ensure that women and girls would enjoy equal educational opportunities, including athletics. Congress prohibited discrimination “on the basis of sex” while simultaneously recognizing that schools may maintain separate athletic teams for males and females where biological differences matter. The statute sought not to erase the distinction between the sexes, but to protect equal opportunities for each.

That protection came under challenge when biological males identifying as female sought to compete on girls’ and women’s teams. West Virginia and Idaho responded by enacting laws preserving female athletics for biological females. The Supreme Court correctly held that those laws are fully consistent with both Title IX and the Equal Protection Clause. The Court’s reasoning was refreshingly straightforward. It recognized that the ordinary meaning of “sex” when Congress enacted Title IX referred to biological sex. It further held that preserving fairness, protecting safety, and maintaining equal athletic opportunities for women constitute important governmental interests. Reserving female athletic competitions for biological females is substantially related to achieving those legitimate objectives.

Importantly, the Court also rejected the argument that states must conduct individualized assessments of every athlete’s physical capabilities before maintaining separate women’s sports. Legislatures may rely upon the general biological differences between males and females when those differences directly bear upon fairness and safety in athletic competition.

Equally significant was the Court’s treatment of Bostock v. Clayton County. Some had argued that Bostock effectively resolved every subsequent dispute involving the word “sex.” The Court disagreed. Bostock interpreted Title VII’s employment protections. These cases involved Title IX, a different statute with a different purpose that expressly contemplates separate athletic teams based upon sex. Courts must interpret statutes according to their own text, structure, and historical context rather than mechanically transplanting rules from one statute to another.

The decision also reflects a broader jurisprudential development that has characterized much of the Court’s recent work. Whether in Bruen, Kennedy v. Bremerton School District, Mahmoud v. Taylor, or Chiles v. Salazar, the Court has increasingly returned to first principles. Constitutional and statutory interpretation begins with the text as it was publicly understood when adopted, not with evolving cultural preferences. Judges do not revise the law to accommodate changing social movements. They faithfully apply the law that the people enacted.

From a natural law perspective, the decision recognizes an even deeper truth. Law functions properly only when it corresponds to reality. Government does not create the human person, nor does it possess authority to redefine the fundamental characteristics of human nature. Biological sex is not a governmental construct. It is an objective reality that the law may recognize because it already exists.

Scripture likewise teaches that humanity is created intentionally as male and female, each bearing equal dignity as image-bearers of God while remaining biologically distinct. Those distinctions are not grounds for inequality but for complementary roles and equal worth. A legal system that acknowledges those realities protects both truth and justice.

I had the privilege of serving as counsel for amici curiae Dr. Brent Ellis, President of Spring Arbor University, and the Wagner Center. Rather than simply advancing legal doctrine, our brief presented the Court with the findings of the National Association of Intercollegiate Athletics’ two-year empirical study of transgender participation in collegiate athletics. President Ellis participated directly in that study as a member of the NAIA Council of Presidents. Our Brandeis-style brief demonstrated that preserving women’s athletics on the basis of biological sex promotes competitive fairness, protects athlete safety, and safeguards the opportunities Title IX was enacted to secure. The Court's reasoning closely parallels the factual and constitutional framework we urged the Court to adopt.

The deeper question before the Court was never really about athletics. It was whether constitutional government remains anchored to objective truth or yields to subjective assertion. The Supreme Court answered that enduring question well. Courts do not create reality. They recognize it. In reaffirming that principle, the Court not only preserved women’s athletics but strengthened the rule of law itself.