Transgender students who seek access to the restrooms of the opposite sex in their public schools typically argue that they accept the existence of sex-segregated restrooms and challenge only their exclusion from the restrooms that comport with their gender identity. An illuminating amicus brief by 19 States clarifies that the Equal Protection challenge to such exclusion is fundamentally an underinclusiveness challenge: The boy who identifies as female is seeking access to the sex-based benefit of using the girls’ restroom (and vice versa, of course, for the girl who identifies as male). Likewise, in the context of sports, the boy who identifies as female is seeking access to the sex-based benefit of being on a girls’ sports team and of competing against girls.
Under established doctrine, a school’s adoption of sex-segregated restrooms is subject to—and (as everyone appears to acknowledge) satisfies—the heightened scrutiny that applies to policies that differentiate on the basis of sex. By contrast, an underinclusiveness challenge receives only rational-basis review. So if it were not enough (as it should be) that sex in the Equal Protection context has always been biological, the simple question to answer under rational-basis review is whether a school acts irrationally when it defines sex to be biological for the purposes of sex-segregated restrooms. Ditto for sex-segregated sports (whether by decision of a school or by state law).
As the States explain (see brief at pp. 3, 8-12), challenges to definitions of racial classifications illustrate this point. While the adoption of racial classifications is subject to strict scrutiny, the definition of a permissible racial classification is subject only to rational-basis review. It’s on the basis of such deferential review that the Second Circuit, in Jana-Rock Construction v. New York Department of Economic Development (2006), ruled that the state of New York could determine that Rocco Luiere, “the son of a Spanish mother whose parents were born in Spain,” was not Hispanic for purposes of a state program for minority-owned businesses. The recent case of Ralph Taylor is similar. When Taylor learned from a genetic ancestry test that he was 4% sub-Saharan African, he sought special benefits under state and federal programs that were open to African Americans. The Ninth Circuit in 2018 summarily affirmed a district-court ruling that applied rational-basis review to the decisions of governmental entities that rejected his racial self-classification.
In recent cases over sports teams and bathrooms, transgender plaintiffs have generally brought similar claims. They do not argue that there should be only one basketball team for which all students try out or one bathroom that all students use regardless of sex. Instead, they seek an extension of a sex-based benefit.
By recognizing that most or all Equal Protection claims brought by transgender individuals with respect to restroom and sports are underinclusiveness challenges subject to deferential rational-basis review, courts should be able to resolve these claims easily. When schools are instead subject to more intrusive review, they face the heavy burden of hiring experts and garnering extensive evidence in order to justify what most Americans, of all races and both sexes, understand as elementary common sense. What’s more, such intrusive record-dependent review gives woke judges plenty of room to wreak their mischief.