A central focus of yesterday’s Supreme Court arguments on state laws protecting girls’ sports was whether “as-applied” equal protection challenges are available under intermediate scrutiny. That’s because the challengers — biological boys seeking to play on girls’ teams — agreed all along that schools can permissibly separate boys’ and girls’ sports. They just demanded an individual, constitutional exemption letting them play on the girls’ teams, arguing that they had undergone sufficient medical transitioning to reduce their physical advantages over girls.
The challengers persuaded the Fourth Circuit below to give them an exemption under this individual as-applied theory, arguing that “B.P.J. challenges [the law] only as applied to her.” Until yesterday, the challengers continued advancing this individual as-applied theory at the Supreme Court. The first page of the ACLU’s brief in opposition to certiorari said that this “is an as-applied challenge by one transgender girl.” The ACLU even tried to extend its individual as-applied theory to rational basis review, telling the Supreme Court in merits briefing that “as applied to B.P.J., [the law] also fails rational basis review.”
The theory makes little sense, as several justices — most forcefully, Justice Kagan — recognized during arguments yesterday. The test for intermediate scrutiny, which generally applies to government policies that classify based on sex, is whether the policy has a substantial relation to an important government interest. Policies that are somewhat broader than necessary can pass intermediate scrutiny — unlike strict scrutiny. It makes no sense to ask whether a policy is permissibly overbroad with respect to a single person. That collapses strict and intermediate scrutiny, letting any person claim an exemption from a law that would be constitutional under ordinary intermediate scrutiny. Idaho’s Solicitor General explained the point — “it is always possible, if you only have a substantial fit supporting legislation, … to find people whom it doesn’t fit, and then we’re in strict scrutiny” — and Justice Kagan responded that was “exactly right.” (See an amicus brief I filed for an extended discussion of this issue.)
Belatedly recognizing these problems, the ACLU threw the Fourth Circuit — and its own Supreme Court briefing — under the bus. For the first time at oral argument, the ACLU agreed that as-applied individual challenges won’t fly under intermediate scrutiny. But the challengers tried to salvage the argument by substituting an even stranger theory: “as-applied” challenges by small groups.
This new theory seems to be that even if a challenger could not show that a law is facially overbroad under intermediate scrutiny — i.e., the law has a sufficiently substantial relation with an important government interest and thus is constitutional — he could claim an exemption if he could claim membership in some indeterminately small group to which the government’s interest fits less well.
If anything, this theory is even more senseless than the individual as-applied version. It suffers from the same core defect as the individual as-applied theory: collapsing intermediate and strict scrutiny for some number of challengers. And it adds more problems, as several Justices recognized. Justice Kagan repeatedly asked, “What should it look like?” and “What would it take to bring that challenge?” And no one defending the as-applied small group theory had any meaningful answer. They could not answer how large the “small group” needed to be, though they insisted that there could be no “numerical requirement.” They could not say how much the small group needed to diverge from the government’s interest. They could not explain how to define which subclasses could make the challenge — or why challengers could invent their own classification that was not in the government policy (and not ordinarily subject to intermediate scrutiny) to challenge that policy. They could not articulate why, as Justice Kagan put it, challengers should not have the burden of proof for “an as-applied challenge to a law that’s facially, everybody concedes, legitimate.” And they did not identify similar “as-applied small group” challenges elsewhere in the law.
The Court should not adopt this theory, which was never presented until oral argument. As Chief Justice Roberts explained, it “sounds an awful lot like strict scrutiny,” applied “to a distinction that we haven’t applied it to.” And this novel approach, Chief Justice Roberts continued, “would apply across an entire range of things where there’s a distinction currently between boys and girls quite apart from just athletics.” What’s more, the theory is unnecessary: as Justice Gorsuch noted, if a statute that classifies based on sex is not substantially related to the government’s interest as applied to a “big enough” group, then it would “just fail intermediate scrutiny facially.” Of course, no one argues that is true here, given that the subclass of biological boys who have undergone early and total medical transitioning is infinitesimally small — and even that subclass may have sex-based advantages in sports.
Several Justices lamented that the possibility of as-applied intermediate scrutiny challenges has been undertheorized. But there’s a deeper reason that this question has a how-many-angels-can-dance-on-a-pinhead quality. As then-Justice Rehnquist explained, intermediate scrutiny itself “c[ame] out of thin air” around the 1970s. As Justice Kavanaugh has written, it “ha[s] no basis in the text or original meaning of the Constitution.” And as many Justices have recognized, its primary considerations (“substantial relation” with an “important” government interest) are themselves indeterminate and not susceptible of adjudication by neutral principles of law. So it’s hardly a shocker that subsidiary doctrinal issues are likewise imponderable. Like other judicially-invented legal tests — the infamous and now-overturned “undue burden” abortion standard comes to mind — the core problem may be with the test itself. Whatever the solution to that problem, there’s no reason to make the test even worse with an unprecedented “as-applied small group” gloss.
