Zero-Sum Thinking

The SCOTUS majority reveals a cramped worldview in assessing the claims of transgender athlete

You can often tell a lot about the meaning of a judicial opinion both by what the judges say as well as by what they don’t say. In West Virginia v. B.P.J., the U.S. Supreme Court majority turned away a challenge by a transgender middle-schooler to a blanket ban on participation by transgender girls and women in school sports. The outcome, which was strongly signaled in the January oral arguments, was not a surprise. As usual, I think it’s instructive to examine the language choices to uncover the ideologies and biases that underlie such outcomes. What Justice Kavanaugh does not say in his majority opinion is the word “transgender”, except when citing titles or quotations, or the pronoun “she” when referring to the brave young challenger. What Justice Kavanaugh seems a little obsessed about is the role of a “zero-sum” game in structuring questions of fairness. This notion that acknowledging one person’s rights always comes at the expense of someone else represents a worldview that affects who he can see and whose suffering he can acknowledge.

Kavanaugh has trouble seeing transgender athletes as fully themselves. Throughout the opinion the majority opinion continuously misgenders transgender girls as “biological males who identify as female.” Once he frames the issue in the following way, it’s not hard to see where this is going. As is so often the case, the outcome is curled up inside the very question that starts the analysis:

In recent years, some biological males who identify as female have sought to play on women’s or girls’ sports teams. That modern development has triggered national and international concerns about safety and competitive fairness for female athletes, as well as related worries about preserving equal opportunity for women and girls to play sports.

If he cannot even see the athletes at the center of this controversy as their real selves, these unsupported “concerns” from people he can see and does relate to will surely outweigh those of the transgender athletes. Further, the opinion does not deign to address the young woman at the heart of the challenge by any pronoun. Even though other cases this term with individual litigants use personal pronouns frequently to refer to the litigants and their arguments (see Slaughter and Cook, e.g.), B.P.J. is always only referred to by the three initials that stand in for her name (which is typical for minors bringing lawsuits). It is as if noting her female identity creates a slippery slope that will give the case away by honoring her humanity.

Justice Thomas, in a hateful concurrence, endorses these language choices in a way that gives voice to their full meaning:

[A]s the Court recognizes, this case concerns “biological men” and “boys who identify as girls.” … Men and boys with gender dysphoria are not women or girls, even if they believe that they are.

The majority holds that B.P.J.’s claim under Title IX is unavailing, because of the explicit endorsement of separate girls’ and boys’ teams in amendments to that statute. And, while the Court finds that separate teams based on biological sex do invoke heightened scrutiny under the Equal Protection clause of the 14^th Amendment to the Constitution, the state’s interest in protecting both the safety and competitive advantage of cisgender girls (“biological females”) is a sufficiently “important” justification to meet the requirements of the “intermediate scrutiny” applied to sex-based discrimination (see this earlier explainer about Equal Protection Law).

You might think that with such heavy reliance on biology and assertions related to safety and competitive advantage, that the opinion would delve deeply into the thorny scientific matters raised by those assertions. Or, if, as here, the evidence related to those matters is not fully developed in the courts below because of the preliminary posture of the case, then one might expect a remand to allow those questions to be weighed by the trial court. This is essentially the position taken in Justice Sotomayor’s dissent. The majority, however, has nothing to say about how we determine who is or is not a biological female, or on what basis it draws the conclusion that the presence of biological males threatens the safety and integrity of women’s sport, except to say, literally “everyone agrees”:

In the sports context, by contrast, everyone agrees that the States may maintain separate women’s and men’s teams—in other words, that the States may make distinctions based on sex—because of the inherent physical differences between women and men.

Indeed, none of the opinions question the underlying assumption that biological females and males represent a distinctly assessable binary set. In that respect, the opinions (all of them) reflect another absence: the reality of intersex individuals. Because medical science recognizes multiple markers of sex—chromosomes, hormones, organs, anatomy, gender identity—and because these multiple markers do not always align in every individual, the concept “biological sex” is meaningless to medical professionals. Yet, it is so full of meaning for the justices that they do not feel the need to even explain how one tells who is a biological female and who is a biological male. As explained here, the upshot of letting these laws stand is that different organizations and different states will subject all women athletes--or maybe only those whose appearance or aptitude inspire their rivals to question their femininity--to invasive, but incomplete tests that nonetheless may prove to be inconclusive.

This case’s legal impact is somewhat cabined, as was Skrmetti. The Court does recognize that sex segregation implicates heightened scrutiny, the court leaves intact the Bostock case finding that Title VII prohibits employment discrimination against gay and transgender employees, even as it rejects its expansion to Title IX,¹ and it punts yet again the question of whether transgender status in and of itself would be a suspect class (i.e., not ruling it out).

It’s worth noting that even if the case had come out the way the dissenters preferred, its impact would have been very limited. The theory of B.P.J.’s case was that even if it makes sense in general to exclude some transgender women from women’s sports because of concerns of fairness and safety, the rationale does not apply to her situation in particular. That’s because B.P.J. took puberty blockers early enough in her development that she never experienced a male puberty, meaning that she does not possess any physical advantages it might otherwise have conferred. On this point challenging the overbreadth of the blanket prohibition, Justice Sotomayor has the stronger argument based on precedent. But had B.P.J. prevailed, her victory would not have helped many other transgender girls who are differently situated. Sadly, the bans on gender-affirming care that the same majority upheld last year exist in many of the same states with the sports bans, making it increasingly harder for girls like B.P.J. to access the very care they need at that age to be able to support this kind of claim

So, what does the majority talk about? A topic that seems really important to Kavanaugh is the concept of the “zero-sum game”. The phrase “sports are generally zero sum” appears three different times in his opinion, in slightly different variations. His point is that this feature of athletic competition matters in assessing the reasonableness of the regulations in achieving that state’s goals (with apologies for the misgendering included):

Even if only one or a few males were to play on a women’s or girls’ team, that would still place specific individual female athletes at a significant competitive disadvantage.

The irony is that it is inapplicable in B.P.J.’s precise situation. As Justice Sotomayor points out, she was trying out for a middle school cross-country running team that didn’t cut any applicants. The blanket prohibitions in these statutes reach many students who displace no one, whose participation would enhance the experience of everyone. It’s interesting, however, to imagine why a high achieving Supreme Court Justice would be drawn to the concept of zero sum. In the highly competitive world of elite legal education, practice, and the judiciary, almost everyone’s success comes at the expense of someone else’s. To take just one example, a nominee to the Supreme Court who is confirmed despite the existence of credible claims of sexual assault takes a spot that might otherwise have gone to an equally qualified candidate without a history of sexual predation.[2]

Anxiety about zero-sum situations is a driver of many policies the Supreme Court majority and current administration care about. Fear that benefit to one person means harm to another animates the Republican approach to immigration About the birthright citizenship case also decided this week, administration aide Stephen Miller has been quoted as saying, “”Birthright citizenship means the children of illegal aliens can vote to tax your children and seize their inheritance.” This thinking bears a close kinship to the once fringe Great Replacement Theory that posits the ultimate zero sum situation. Similar fears also animate the court’s jurisprudence about affirmative action and ballot access.

But even if a zero sum situation exists, all it identifies is that there is something at stake; it does not in itself justify the exclusion of one for the other. In competitive sports, there are many reasons a particular athlete may possess gifts of speed, strength, height, or skill that cause that athlete to advance over others. But we do not ban participation of girls over a certain height in basketball, for example, simply because of these advantages.

An alternative mindset to zero sum is one of abundant opportunity. Your success enhances my own experience and everyone else’s. Your participation brings value to the whole team.

A zero sum mindset also limits the role of empathy. If you need to guard your own advantage, it’s hard to see things from the other’s point of view. Somewhat out of character for a majority opinion, Justice Kavanaugh suggests that his feelings have been hurt by Justice Sotomayor’s suggestion that he is insufficiently attentive to the suffering of real people:

Second, we do not accept the dissent’s assumed monopoly on understanding the effects on individuals involved in disputes over transgender athletes. We are acutely aware of the difficulties sometimes faced by boys who identify as girls (and by girls who identify as boys) in middle school, high school, and beyond. And we greatly admire the desire of all students, including transgender students such as B. P. J., who want to participate in sports. But in conducting the equal protection inquiry, we must also account for the effects on girls who are forced to compete against biological males in sports.

Somehow, the empathy is undercut by the almost comical (if it weren’t so hateful) refusal to acknowledge the identity of those about whom he is claiming some compassion, and by the implication that the cisgender girls he does care about more fully are the victims in the zero-sum game.

The zero-sum lens helps us understand why the Court’s majority is so reluctant to acknowledge the claimant’s gender and her humanity. One would think that recognizing B.P.J. as herself — as the girl she is — costs the majority nothing and would deliver some respect even while turning away her claim. But zero-sum thinking suggests otherwise: that uplifting those who have previously been excluded inevitably takes something away from those who have not. We have seen this logic before. Old arguments, recently recirculating in right-wing media, that same-sex marriage somehow diminishes the marriages of straight people are animated by exactly this fear. In this framework, even basic acknowledgment becomes a concession, and compassion becomes a zero-sum proposition. The majority’s cramped vision of a world in which one person’s dignity depletes another’s is not a legal principle, but it informs the legal outcomes. Opening ourselves to the possibility that the thriving of others helps us also thrive offers a better route to a happier society.

1. On this see Justice Jackson’s helpful opinion trying to imagine ways that the reasoning of Bostock might also be applied to Title IX in other contexts.