Conservatives Are Using a Trojan Horse to Try to Kill RBG’s Greatest Legacy. It Might Just Work.
https://slate.com/news-and-politics/2026/08/supreme-court-kavanaugh-trojan-horse-rbg-trans-cases.html
Conservatives Are Using a Trojan Horse to Try to Kill RBG’s Greatest Legacy. It Might Just Work.
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Alliance Defending Freedom, the conservative Christian legal organization that litigated Dobbs, is going after a new and possibly surprising target. ADF, having helped undo the right to choose an abortion, now wants to dismantle the sex-equality cases that are Justice Ruth Bader Ginsburg’s greatest legacy—and have protected Americans against discrimination on the basis of sex, sexual orientation, and gender identity. The Supreme Court’s decision last term in West Virginia v. B.P.J. allowing states to ban trans athletes is the latest under-the-radar step in this movement strategy.
In B.P.J., the court held that West Virginia and Idaho could ban trans athletes from participating in women’s and girls’ athletics because the states were simply recognizing physical differences between the sexes—what the court called biological sex. The court explained that Title IX was all about biological sex, with Justice Brett Kavanaugh in his majority opinion framing the case as a minor exception to the court’s sex-discrimination jurisprudence, one that reflects differences in size, speed, and strength that make sports unique.
Kavanaugh’s opinion is an example of reasoning from the body: The court discussed biological differences between the sexes as if they naturally justify laws that discriminate on the basis of sex. With this view, once a court recognizes biological sex difference, the court has no reason to scrutinize state action for sex-role stereotyping.
There are reasons to be suspicious of this account. Take the example of sports, the issue at the heart of B.P.J. Today Title IX, the 1972 civil rights law that prohibits sex discrimination in education programs receiving federal money, has transformed women’s and girls’ athletics. Following significant increases in the participation rates of female athletes in high school and college, women athletes have been at the heart of major success for American athletics.
It is hard to see how any kind of sex-equality mandate in sports would have passed if lawmakers had primarily wanted to enforce biological differences between the sexes. In fact, Congress enacted Title IX, the statute requiring equal opportunity for women athletes, because it was concerned about sex discrimination, not physical differences between men and women. That focus made sense: At the time, women’s sports received roughly 2 percent of university athletic funding. University athletic departments justified this breathtaking disparity by arguing that women who played competitive sports would become infertile or would be so poor at competing that universities would lose massive amounts of money propping up programs.
It turns out that it is possible to demean and exclude by stereotype, even when physical differences are involved. (For example, employers exclude pregnant workers on the basis of stereotypes about their ability to work or commitment to their job.) Title IX was meant to combat demeaning and exclusionary sex stereotypes. The same was true of the Supreme Court’s foundational sex discrimination cases, many of which were either litigated by Ginsburg when she was an attorney or eventually decided by her as a justice. Despite what the court said in B.P.J., the term biological sex appears nowhere in the text or legislative history of Title IX. (The first appearance of the term came in 2016, when conservative lawmakers proposed amending the statute to define sex as meaning biological sex.) Kavanaugh offered no evidence; he was simply repeating what the advocates asserted, also without evidence.
Starting a year ago, the court itself began to employ the term biological sex in equal-protection decisions in which transgender claimants challenged laws imposing requirements for gender-affirming care, passport identification, and participation in sports. The term played two roles in the court’s opinions. First, the court refused to use the language trans litigants chose to describe their own identities. Second, it invoked biological sex to justify deferring to laws that define trans people based on their sex assigned at birth. The court seemed unwilling to consider the possibility that laws enforcing biological sex differences could be used to enforce gender roles or stereotypes.
Biological sex seemingly refers to science—yet it can also refer to nature, religion, and gender roles, as demonstrated by documents like the Nashville Statement of the Council of Biblical Manhood and Womanhood, from the 2017 Southern Baptist Convention. The council understands biological sex to speak to everything from the immorality of same-sex marriage and the importance of chastity before marriage to the “divinely ordained differences between male and female.”
Biological sex also has a distinctive legal meaning, as we show in a forthcoming article. Biological sex supplies the Supreme Court with resources for the stealth overruling of the most important sex-discrimination cases, including United States v. Virginia, 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.
In these biological-sex cases, the court is beginning to constitutionalize the claims of a movement that seeks not only to reverse the gains of LGBTQ+ Americans but also to change sex-equality law as radically as it has the law of abortion. In equal-protection decisions, talk of 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 way of associating sex difference and judicial deference that revives the very traditions of reasoning from the body that our sex-equality jurisprudence rejected.
That is part of what happened in B.P.J. The court ignored the text and history of Title IX and its proponents’ concern with sex-role stereotyping. Then the justices watered down the scrutiny applied in sex-discrimination cases. Most tellingly, the court twice quoted the very language ADF has cherry-picked from Virginia and reiterates throughout its campaign to transform sex-equality law: that “physical differences between men and women” are “enduring.” While the court used “pro-woman” language ADF has supplied, there were plenty of Easter eggs in B.P.J. for those who think that equality for women was a mistake.
And it did not take long for the movement’s “pro-woman” mask to slip after B.P.J. Within weeks, the Heritage Foundation released a report emphasizing “natural differences” between the sexes—for instance, suggesting that many women have an aptitude for yoga and cheerleading rather than competitive sports—and arguing that Title IX is feminist social engineering that leads women away from childbearing and marriage. The report invited gutting Title IX’s commitment to equal-opportunity sports funding and refocusing enforcement of the statute on boys’ success instead. The author of the report, Scott Yenor, has called for the reversal of the court’s most significant sex discrimination cases and spoken out against the right of women to vote. Before B.P.J., the 6th U.S. Circuit Court of Appeals had already handed down a decision suggesting that courts need not defer to long-standing Title IX regulations requiring equal-opportunity funding for female athletes.
The trans cases are a Trojan horse. In rejecting the claims of the LGBTQ+ community, the court is beginning to dismantle the sex-discrimination law through which Americans demand equality. The question now is just how far this transformation will go.
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