CONSTITUTIONAL INTERPRETATIONS

West Virginia, like many other states, helps sponsor girls’ sports teams at its schools, and like many other states, West Virginia bars transgender girls (i.e., individuals born as boys, but who now identify as girls[1]) from participating in school-sponsored sports activities for girls. The United States Supreme Court will soon decide whether that kind of state law violates the Equal Protection Clause of the United States Constitution. See West Virginia v. B.P.J., U.S.Sup.Ct. docket number 24-43. The Clause itself reads as follows:

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const., Amendment XIV, Section 1.

The Clause was neither written nor adopted with school-sponsored sports teams in mind. At the time of its adoption, the collective mind of the United States was focused on the plight of former slaves recently liberated (at least legally) by the Thirteenth Amendment to the Constitution. All of those former slaves had become slaves by birth to parents who were slaves themselves under the American system of slavery. Many were being subjugated, after legal liberation, to violence and other depredations of their legal rights by many state law enforcement authorities who were refusing to enforce their states’ own laws against such depredations. From those historical facts, the text and timing of the Fourteenth Amendment imply a strict prohibition against discrimination by the states  in the enforcement of their laws. The forbidden subject of discrimination in that Amendment was discrimination against an individual on the basis of that individual’s characteristics at birth.[1]  

With that emphasis on discrimination against birth characteristics, sex discrimination by states presents an obvious problem. Both sexes engage in some distinctive behaviors that easily justify different regulations of those behaviors. On the other hand, both sexes engage in behaviors that are common with each other, and for those behaviors, differing regulations would be inequal, and therefore patently illegal under the Constitution. For school-sponsored sports teams, the differences between the sexes may reflect different levels, in general, of sports ability, but they also reflect differences in a school’s needs for locker rooms and restroom facilities. In the West Virginia v. B.P.J. case now before the Court, the complaining plaintiff alleges that her own experience with still active puberty blockers and female hormone injections have substantially erased any athletic advantages she might have had as a boy, and that that alleged fact qualifies her for an exception from West Virginia’s law against transgender athletes. She claims the Constitution’s Equal Protection Clause requires West Virginia, and its school-funding taxpayers, to extend that exception to her.

Exceptions like that, no matter how benign they may sound,  can ultimately destroy the ideal of “equal protection of the laws” promised by the Equal Protection Clause. The Clause excepts birth characteristics, like slavery in the old days, or skin color today, from discriminatory regulation by the states. The Clause should also except the birth characteristic of sex from mindless regulation by the states; otherwise, the goal of equality is lost. Given the dressing room questions alone for school sports activities, West Virginia’s law may be harsh and unfeeling in some circumstances, but it is not mindless. It is not unconstitutional.

/s/ Dan D. Rhea

[1] See “Transgender.” Merriam-Webster’s Unabridged Dictionary, Merriam-Webster, https://unabridged.merriam-webster.com/unabridged/transgender. Accessed 15 Jun. 2026.

[1] See generally Section 1 of Fourteenth Amendment; see also the “all men are created equal” statements in The Declaration of Independence and President Abraham Lincoln’s Gettysburg Address.