Men and Women: Equal but Beautifully Distinct

In the 2018 movie, “On the Basis of Sex,” a young Ruth Bader Ginsburg excitedly explains to her husband that Section 214 of the Internal Revenue Code “assumes a caregiver has to be a woman.” At the time, that section excluded single, unmarried men from claiming a tax deduction for dependent care expenses. “This is sex-based discrimination against a man,” Ginsburg exclaims — a conclusion that later carried the day in Moritz v. Commission of Revenue.

On January 13, 2026, the U.S. Supreme Court heard oral arguments in a pair of cases raising allegations of sex discrimination, albeit through a distinctly postmodern lens. In West Virginia v. B.P.J. and Idaho v. Hecox, the challengers, a teenage boy and a college-age man, asked the Court to invalidate those states’ laws limiting participation in women’s athletics to females.

While the challengers’ claims may sound similar to those advanced by Justice Ginsburg over half a century ago, oral argument revealed a conceptual chasm between the two approaches. In neither B.P.J. nor Hecox did the challengers argue that separating sports teams based on sex per se violated the law. Instead, they claim to have transcended the legal rationale for sex separation because, in their quest to identify as “women,” they used medical interventions to “mitigate” their male physiology.  

This unorthodox argument played out through an extended discussion of the “intermediate scrutiny” standard of review for evaluating sex-based classifications under the Equal Protection Clause of the Constitution. To satisfy this standard, a law must advance an “important” government interest and be “substantially related” to that interest. In practice — and much unlike the “strict scrutiny” standard that applies to racial classifications — a law that classifies by sex can satisfy intermediate scrutiny even if it lacks a “perfect fit” to every set of facts.  

Both Idaho and West Virginia argued that their laws were justified by the important interest of promoting equal, fair, and safe opportunities for women to compete in athletics. Moreover, they argued that because men are, on average, larger, faster, and stronger than women, excluding men from women’s sports promotes those interests. That rule is “substantially related” to the rationale of promoting equality, fairness, and safety, even though some athletically challenged men may be uncompetitive against superior female athletes.  

The challengers conceded that separating athletes by sex is legally permissible and, in the main, quite sensible. Rather, they argued that the states simply needed to include on the “female” side of the line male athletes who identify as transgender and who engage in aggressive pharmaceutical suppression of their male physiology. This argument depended upon two key presuppositions.  

First, the challengers reframed the purpose of sex separation in sports as merely an effort to prevent athletes with high levels of circulating testosterone from dominating those with lower levels. Hecox’s attorney asserted that the goal of Idaho and West Virginia’s laws was “not sex separation for its own sake,” but rather “equality in sports.” And equality can be achieved, so the challengers say, by ensuring that male athletes who compete against females control their “circulating testosterone” level, which is “the main determinant of sex-based biological advantage.”  

Second, the challengers asked the Court to narrow its inquiry to whether Idaho and West Virginia’s laws made sense “as applied” to the individual challengers. According to B.P.J.’s attorney, classifying athletes by sex “is absolutely reasonable as applied to cisgender students.” However, “as applied to transgender students,” a policy of sex separation constitutes “a complete exclusion from the program.”

There are several problems with this line of reasoning. Idaho’s attorney observed that a challenger could nearly always define a group narrowly to include “only the people who are outside the fit.” Chief Justice Roberts mused whether this “challenge-by-challenge approach” risked “transforming intermediate scrutiny into strict scrutiny” by requiring a law to achieve a perfect fit for every idiosyncratic group. The result would be a series of challenges asking for judge-made exceptions to a law anytime the law’s rationale failed to fit a particular class of plaintiffs.  

That move, in turn, risks opening the door to such absurdities as recasting men’s and women’s athletic teams as little more than the “high-T” and “low-T” divisions. B.P.J.’s attorney seemed to confirm this, arguing that the purpose of sex-separated teams was “to control for the variable of sex-based advantages so that talented women athletes have all the same opportunities as talented male athletes.” The attorney asserted, however, that those opportunities would be unaffected by allowing B.P.J. to compete against girls because he “already effectively controlled for those sex-based advantages,” and therefore “is completely in the position” that he would have been if his “birth-assigned sex had been female.”  

That argument highlights the deep metaphysical conflict that lies at the center of the cases. Can we, through force of rhetoric and the power of science, bend fundamental reality — and notions of fairness and justice — to our will? The challengers assert they are women and equivalent, both competitively and physiologically, to biological females. That claim runs counter to the great weight of scientific evidence proffered in both cases, and would obliterate the distinction between male and female, reducing it to a single measure: testosterone levels. Indeed, throughout both arguments, counsel for Hecox and B.P.J. referred to their clients, respectively, as “she” and refused to offer a definition of “sex,” insisting that “sex,” however defined, simply should not be used to deny “opportunities” to transgender people.

This wordplay would seem trivial at best, except that law comprises words, and those words have real consequences. Current Affairs editor Nathan Robinson has explained that advocates for the transgender movement are under no illusions that language can transform biological men into biological women. “The world is not a social construct,” he notes. However, “language is,” and language, he writes, is “a matter of conceptual categories, which are a choice.” And the choice the challengers ask the Court to make is to include certain men who identify as women “in the category of ‘woman,’ for people to call them women and treat them as women.” In other words, language is a construct of whatever powerful interest is most able to wield it for its purposes. Nathan Robinson, an inveterate Marxist, remains true to form. Powerful interests are being served, but they are not those of young women competing in adolescent sports, or the larger need of our society to know that its words, laws, and public speech conform to the reality that we did not summon into being.

The choice, however, to engrain in the words of the law what theologian N.T. Wright called “a modern, and now internet-fueled, form of the ancient philosophy of Gnosticism” comes with real and undeniable consequences. Amicus briefs filed in both cases illustrate the harm that comes from deliberately denying physical reality in the service of ideological ends. Those briefs told stories about dozens of female athletes who lost opportunities to males, and about female students whose safety and privacy were compromised when they were forced to change — and even shower — with males in locker rooms. Indeed, one young female student in West Virginia even filed a lawsuit alleging that B.P.J. himself sexually assaulted her when the two were track and field teammates.  

Such an arbitrary classification system directed by our gender theory-saturated elites — one that runs counter to virtually every expectation men and women have about what separates them as men and women — can only be enforced by legal sanction. It’s state power all the way down, because the demands of the transgender activists only practically exist if everyone can be forced to kneel to its dictates and declare in unison that the emperor has no clothes.

While no friend of jurisprudential conservatism or originalism, Justice Ginsburg keenly understood the need for the law to treat the two sexes as equal and beautifully distinct, not endlessly malleable and fungible. In United States v. VMI, she wrote that “[p]hysical differences between men and women . . . are enduring” and “remain cause for celebration.” The arguments in Hecox and B.P.J. illustrate why rejecting that conclusion in favor of modern Gnostic belief would confuse the law and harm real people.

Ryan Bangert is Senior Vice President for Strategic Initiatives & Special Counsel to the President at Alliance Defending Freedom.