A group of 24 philosophers has submitted an amicus curiae brief for two US Supreme Court cases concerning laws about the participation of transgender athletes in sports.
The two cases are Bradley Little, Governor of Idaho, et al., Petitioners v. Lindsay Hecox, et al. and West Virginia, et al., Petitioners v. B. P. J., By Her Next Friend and Mother, Heather Jackson.
At issue in the cases is the question of whether the Equal Protection Clause of the Fourteenth Amendment prevents states from offering separate boys’ and girls’ sports teams based on biological sex assigned at birth. The latter case also raises the question in regard to Title IX.
The brief’s intervention consists mainly in metaphysical and normative arguments about natural properties*. Its authors argue that the states are justified in excluding trans women from women’s sports and trans men from men’s sports.
Here’s the summary of its argument:
On their face-value interpretation, the Idaho and West Virginia statutes enable female persons, and only female persons, to participate in certain spaces—namely, in certain sports teams, leagues, events and competitions. To achieve this aim, the Idaho and West Virginia statutes preclude male persons, and only male persons, from participating in those sports teams, leagues, events and competitions. On this face value interpretation, the statutes propose to organize sports in part around the sex categories: female (person) and male (person).
This brief contends that organizing sports around the sex categories is fully justified, given the officially uncontested fact that it is justified to organize sports approximately around the sex categories. Its argument leverages a general philosophical distinction between more and less natural categories. This distinction will be applied to reinforce the case for organizing sports around the sex categories, as well as against reorganizing sports around alternative categories to which vividly ad hoc exceptions have been built in. Finally, the argument will be extended to the disputed question of the intended function of the Idaho and West Virginia statutes, which it is concluded is, indeed, the face-value one: to enable female participation in sports by means of excluding male would-be competitors.
The group who submitted the brief was led by Daniel Kodsi, John Maier (George Mason University), and Robert P. George (Princeton University). Its other members are Tomás Bogardus (Pepperdine University), Peter Carruthers (University of Maryland), Adam Caulton (University of Oxford), Cora Diamond (University of Virginia), Rona Dinur, Paul Elbourne (University of Oxford), Gary Francione, (Rutgers University), Molly Gardner (University of Florida), Moti Gorin (Colorado State University), Joel David Hamkins (University of Notre Dame), Holly Lawford-Smith (University of Melbourne), Mary Leng (University of York), Jeff McMahan (University of Oxford), Kate Phelan (RMIT University), Jon Pike (The Open University), John Schwenkler (University of Illinois Urbana-Champaign), Bradford Skow (Massachusetts Institute of Technology), Scott Soames (University of Southern California), Roger Teichmann (University of Oxford), Timothy Williamson (University of Oxford), Crispin Wright (New York University/University of Stirling).
The brief is one of around twenty that were submitted for both cases. Its full text is below (and also here).
View archived embedded resource on Daily Nous
* This sentence originally referred to “natural kinds.” It has been changed to “natural properties” at the suggestion of Daniel Kodsi.
