Race, Sex, and the Limits of Definition

The Supreme Court must decide the undecidable in its latest Title IX cases

RACE, SEX, AND THE LIMITS OF DEFINITION

The Supreme Court must decide the undecidable in its latest Title IX cases

Dave Gilbert

Editors’ note: The Supreme Court heard oral arguments in Little v. Hecox and West Virginia v. B.P.J. only days ago, and a decision is not expected until later this term. We publish this essay now because the arguments themselves—rather than any eventual holding—already reveal something important about the state of American civil-rights law. Across ideological lines, the justices appeared less divided over the legitimacy of women’s sports than over the deeper problem of how law should define and administer contested identity categories such as sex. (The arguments in Little v. Hecox are available here and the arguments in West Virginia v. B.P.J. here.)

The Journal of Free Black Thought has long served as a forum for heterodox analysis of race and, secondarily, of gender and more broadly of liberalism’s unresolved tensions—an engagement that has increasingly required grappling with questions of gender as those tensions have come to the fore. This essay enters that conversation at a moment when doctrinal questions about Title IX intersect with broader philosophical questions about identity, self-determination, and the limits of legal definition. It is offered not as a prediction of how the Court will rule, but as an effort to think carefully about what the Court is being asked to do—and what law may be unable to finish.

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The Supreme Court’s recent consideration of Little v. Hecox and West Virginia v. B.P.J. arrives at a moment when long‑standing assumptions about sex, identity, and civil‑rights law are under unusual strain. What began as a set of disputes over school athletics has become a test case for how far constitutional law can go in defining contested identity categories without inheriting responsibilities it cannot realistically discharge.

Public debate has largely framed these cases as a referendum on fairness in women’s sports or on the legitimacy of transgender identities. These questions have also been taken up within black heterodox thought, including in the Journal of Free Black Thought, where contributors have examined the cultural, political, and social stakes of contemporary gender debates (see, for example, Michael Creswell, The Party That Forgot How to Win; Tiffanie Jones, Gender Ideology Is Destroying Academia; and Teva Johnstone, Gender Ideology, Neurodiversity, and Alternative Schooling).

The Court, by contrast, is not being asked to pass judgment on cultural legitimacy or moral worth, but to decide questions of statutory meaning and constitutional mechanics: how Title IX’s prohibition on sex discrimination operates in athletics, and how equal‑protection doctrine applies to sex‑based classifications in that setting. That framing obscures what is legally distinctive about the questions now before the Court. The central issue is not whether sex‑segregated sports may exist—they long have—but whether the law can rely on sex as a governing category without first fixing what sex means, how it is determined, and who must enforce that determination.

This essay argues that the Court’s difficulty in answering those questions reflects a deeper tension within liberal civil‑rights law itself: a tradition that has succeeded by refusing to settle the ontology of identity categories now finds itself confronted with demands that it do exactly that. The Title IX sports cases expose the limits of definition—limits that law has previously navigated more easily in the context of race than in the context of sex.

I. Why These Cases Matter Now

Over the past decade, American law has been forced to confront a problem it long managed to avoid—a problem surfaced in cases like Bostock v. Clayton County, shifting Title IX guidance, and now disputes over school athletics. The problem is whether it must adopt a settled definition of sex in order to function. In most areas of civil‑rights law, sex was treated as a stable, objective biological category that did not require positive definition. That assumption made it possible to prohibit discrimination on the basis of sex without asking courts or agencies to resolve contested questions about biology, identity, or metaphysics.

That background has changed. Advances in medicine, shifts in professional consensus, and sharp cultural disagreement about what sex is—and what it should mean in law—have pushed questions that once stayed implicit to the surface. The Supreme Court now faces those questions directly in Little v. Hecox and West Virginia v. B.P.J., two cases that ask whether states may bar participation in girls’ and women’s sports based on sex without violating the Constitution.

The Court is not being asked to decide whether sex differences are real, whether women’s sports should exist, or whether fairness matters; on those points, the parties largely agree. What emerges instead from the oral arguments is a Court tempted to define “sex” for Title IX athletics, yet wary of announcing a rigid, all‑purpose definition that would automatically govern every other legal context. The question before it is how Title IX and the Equal Protection Clause apply to transgender girls in school sports—and how far “sex” must be specified for that limited purpose.

The stakes of that decision extend well beyond sports. A ruling that constitutionalizes a single definition of sex risks entangling courts in scientific and administrative disputes they have historically tried to avoid. A ruling that rejects “as‑applied” challenges—challenges that accept a law’s general validity but argue that it is unconstitutional in a specific individual’s circumstances—risks insulating broad classifications from the individualized scrutiny equal‑protection doctrine ordinarily demands. These cases therefore test not only the future of Title IX athletics, but the limits of how much definitional work constitutional law can reasonably bear.

This tension is not unique to sex. American civil‑rights law has long confronted similar difficulties with race. After Brown v. Board of Education, the Court rejected the idea that the Constitution requires a scientific or metaphysical definition of race in order to prohibit racial discrimination. Instead, it treated race as a socially operative category whose legal significance lay in how it was used to allocate burdens and benefits, not in its biological coherence. It didn’t matter whether race was a biological reality, a social construct, or a figment of the imagination for discrimination on the basis of it to be illegal. The law thus avoided becoming an arbiter of racial ontology while still robustly policing racial exclusion.

Sex has historically occupied a different position—widely assumed to be biologically obvious and legally unproblematic. But as with race, the difficulty arises when courts are asked to transform a generally intelligible category into a rigid legal definition that must be enforced uniformly across jurisdictions and contexts. The sports cases now before the Court raise the question of whether sex will continue to function, like race, as a category whose legal meaning is defined by its use in law, or whether the Court will be drawn into settling its underlying scientific or metaphysical content for constitutional purposes.

II. Common Ground—and the Point of Divergence

It is worth beginning with common ground. Male bodies, on average, confer athletic advantages over female bodies. Title IX’s success rests in part on acknowledging that reality and creating protected spaces in which girls and women can compete, develop, and succeed. Preserving those spaces is a legitimate and compelling governmental interest, and nothing in these cases turns on denying it.

Where disagreement begins is not with biology, but with constitutional method. The Court has long permitted sex‑segregated sports. What it has not squarely resolved is whether a rule that is generally justified by competitive fairness may constitutionally refuse to consider how it applies to particular individuals—or whether equal‑protection doctrine requires room for as‑applied challenges when the proxy used by the state may not track the interest it invokes.

That is why these cases are so fraught. They sit at the intersection of long‑standing assumptions about sex and newer disputes about how law should respond when those assumptions are no longer universally shared. The oral arguments revealed justices struggling not with whether women’s sports deserve protection, but with whether the legal tools available can do that work without forcing the Court to settle scientific and definitional questions it may be ill‑suited to answer.

III. The Core Legal Tension: Facial Validity vs. As‑Applied Challenges

At first glance, the legal question in Little v. Hecox and West Virginia v. B.P.J. appears straightforward, particularly given that Title IX regulations have long expressly contemplated sex‑separated athletic teams. States have long been permitted to maintain sex‑segregated sports teams under Title IX, and few dispute that such segregation serves an important governmental objective: preserving fair athletic competition for girls and women. On this view, once the general constitutionality of sex‑segregated teams is established, the inquiry should end.

But the oral arguments revealed that this framing elides a deeper and unresolved question in equal‑protection law: whether a sex‑based rule that is generally justified may nonetheless be unconstitutional as applied to particular individuals. Intermediate scrutiny—a standard of constitutional review that requires the government to show an important objective and a substantial fit between that objective and the classification used—does not ask only whether a classification is usually reasonable. It asks whether the classification is substantially related to the asserted objective in the cases where it is enforced.

This is the pressure point Justice Kagan and Justice Jackson repeatedly returned to (with several conservative justices raising parallel concerns about administrability and line‑drawing, even if from different premises). If the state’s justification for excluding boys from girls’ teams is competitive fairness, may the state categorically refuse even to consider whether that justification actually applies to the individual it excludes? Or does equal‑protection doctrine require at least the possibility of an as‑applied challenge when the proxy the state relies on may not track the interest invoked?

The states’ position was effectively that allowing as‑applied challenges would collapse sex‑segregated sports altogether. If one exception is permitted, they argued, there is no principled stopping point. The plaintiffs’ position was the inverse: that a rule justified by fairness cannot constitutionally ignore evidence that fairness concerns do not apply in a given case. The Court has not squarely resolved this tension before, and the discomfort on the bench suggested that neither answer is cost‑free.

IV. Why United States v. Virginia Still Haunts These Cases

The shadow of United States v. Virginia (1996) loomed over the arguments, even when it was not explicitly named. In that case, the Supreme Court did not deny the reality of sex‑based differences. Justice Ginsburg’s opinion acknowledged that men and women are, on average, physically different in ways that can matter for certain institutions. What the Court rejected was the use of sex as a blunt proxy when the state’s asserted objective required attention to individual capacity.

Virginia argued that excluding women from the Virginia Military Institute was justified by general differences in physical ability and educational style. The Court disagreed—not because those differences were imaginary, but because they were insufficient to justify categorical exclusion without examining whether women seeking admission could meet the institution’s demands. The burden was placed squarely on the state to justify exclusion, not on the excluded individuals to disprove every possible disadvantage.

That logic resonates uncomfortably in the sports context. When a state invokes competitive fairness as its justification, Virginia suggests that sex may function as a proxy only so long as it actually tracks that interest. The case does not compel the Court to dismantle sex‑segregated sports. But it does make it harder to say that once a classification is generally valid, courts must avert their eyes from how it operates in particular cases.

The concern voiced by several justices—that recognizing as‑applied challenges would require admitting any male athlete who alters his body—misunderstands the doctrine. Equal‑protection analysis does not turn on identity or self‑description. It turns on whether the rule used is doing the work the state claims it is doing. Virginia did not require VMI to admit all women; it required the state to justify why sex, rather than demonstrated capacity, was the appropriate line to draw.

V. The Administrability Problem the Court Cannot Wish Away

Even if the Court were inclined to uphold the challenged statutes as constitutionally permissible in general, the oral arguments revealed a second, equally stubborn problem: administrability. Sex‑segregated sports do not enforce themselves. Once a rule excludes athletes based on sex, the state must decide how sex is to be determined and verified in practice. The oral arguments suggest three distinct ways the Court might approach that task, each carrying its own constitutional and administrative costs.

Explicit definition. One option would be for the Court to articulate an explicit operating definition of sex for Title IX athletics—most plausibly biological sex as determined at birth. This would answer the concern expressed by Justice Alito that “sex must mean something” and it would provide immediate clarity. But once articulated, such a definition would have to be administered. It would not remain an abstract principle; it would require mechanisms for determining, verifying, and enforcing sex classifications across thousands of schools and athletic programs. The promise of clarity would come bundled with the responsibility of oversight.

A second option would be to affirm sex‑based exclusions while declining to define sex with precision, treating biological sex as sufficiently understood for this context without specifying how disputes must be resolved. This minimalist approach would allow the Court to decide the cases before it while avoiding full ownership of the downstream machinery. But it would also leave lower courts and institutions to improvise, producing inconsistent applications under a federal civil‑rights statute and postponing a reckoning with—rather than resolving—the very conflicts that gave rise to these cases.

A third approach would be to permit sex‑based exclusions while tolerating state‑by‑state variation in how sex is defined and enforced for athletics. That path would accept that Idaho, West Virginia, and other states may operationalize sex differently. Yet Title IX is federal law, and civil‑rights protections have traditionally aimed at baseline uniformity. Allowing eligibility to turn on geography risks fragmenting a federal right and amplifying inequities in interstate competition, when athletes from states with widely varying criteria for male and female compete against each other.

A fourth approach—pressed most clearly by Justices Kagan and Jackson—would be to uphold sex‑segregated sports in general while permitting as‑applied challenges in cases where the state’s fairness justification is contested. Under this view, sex may operate as a proxy for competitive advantage most of the time, but the Constitution requires room to examine whether that proxy actually applies to a particular athlete. This preserves doctrinal coherence with United States v. Virginia and traditional equal‑protection analysis, but it raises its own concerns: individualized inquiry, ongoing assessment, and administrative burden. The very features that make as‑applied review attractive in principle make it difficult to implement at scale.

This is a structural problem. Here, the notion that a clear definition of sex would resolve the problem proves illusory.

Even when, as in Idaho and West Virginia, the statutes deliberately try to bypass birth certificates and anchor eligibility to biological sex as determined at birth—despite the fact that the state’s own vital records may recognize a different sex for other legal purposes—neither law makes amended vital records the operative test. Both instead construct their own birth‑based biological definitions meant to take precedence regardless of later administrative changes.

States differ dramatically in how sex is recorded on birth certificates, whether sex markers can be changed, and the fact that, in some states, nonbinary markers exist, complicating any attempt to rely on binary sex classification as an administrable legal rule for sports. Even so, the underlying difficulty remains. A rule that rejects birth certificates as dispositive (because they may be amendable) does not escape administrability; it creates a parallel sex‑classification regime that must operate alongside, and sometimes against, existing state record‑keeping practices. In a federal civil‑rights system, that parallelism either accepts fragmented state practices or requires courts and schools to override them. In the first case, eligibility turns on geography rather than fairness. In the second, schools and athletic programs become de facto sex‑certification authorities.

This is a structural problem. A rule that must be applied uniformly cannot depend on informal community knowledge or selective scrutiny without raising its own equal‑protection concerns. Once audits, exceptions, and verification procedures are required, administrability becomes part of the constitutional analysis. Courts have long recognized that a classification whose validity depends on intrusive or indeterminate enforcement mechanisms is not neatly severable from those mechanisms.

The Court may ultimately decide that these difficulties are tolerable in service of preserving women’s sports. But the oral arguments made clear that they cannot simply be waved away. Any ruling that treats enforcement as “someone else’s problem” risks ignoring the very realities that determine whether a constitutional rule can operate as law at all.

VII. The Limits of Definition

At this point, it is tempting to search for a solution that dissolves the tension exposed by these cases—but I do not intend to propose one in this section. The appeal of a doctrinal maneuver or regulatory framework that preserves women’s sports while avoiding the administrative and constitutional costs that attend categorical sex definitions is understandable. But one lesson of the oral arguments is that no such solution presents itself cleanly. I intend to expose the intractability of the problem rather than try to resolve it.

Each of the Court’s available paths carries unresolved difficulties. Explicit definitions promise clarity but demand enforcement. Minimalism defers responsibility but invites fragmentation. Federal tolerance of state variation strains the uniformity of a federal civil‑rights statute. As‑applied review preserves doctrinal coherence while raising the specter of individualized administration at scale. None of these outcomes fully resolves the problem; each merely relocates it.

This impasse reflects a deeper asymmetry between sex and race in American civil‑rights law. With race, the Court learned—painfully but decisively—that prohibiting discrimination does not require a scientific or metaphysical definition of race. Race’s biological instability made it possible for the law to treat it as a socially operative category, policing its use as a grounds for discrimination without attempting to adjudicate its essence. Sex has long seemed different: more concrete, more binary, more obviously grounded in biology. That very intuition, however, makes sex harder for the law to manage once courts are asked to define it.

Debates over transracialism—controversial even within progressive academic and political circles—make this difficulty visible. In her controversial 2017 article, In Defense of Transracialism, published in the philosophy journal Hypatia, Rebecca Tuvel argued that many of the considerations invoked to justify transgender identity—autonomy, sincerity, and the contingency of identity categories—would, if applied consistently, also support transracial identity. A person born white could, on this view, just as legitimately claim to “feel” and thus to be black as a person born male could claim to be female. The intensity of the backlash to that argument revealed how deeply invested even liberal societies remain in treating race as an essential, non‑elective feature of the self.

Scholars such as Sheena Mason—whose work on racelessness has been published and discussed in the Journal of Free Black Thought (see here, here, here, and here, for example)—have drawn the more radical conclusion, one that departs sharply from transracialism by rejecting race as a category altogether rather than extending it through elective identification. In her Theory of Racelessness (now reimagined and rechristened The Togetherness Wayfinder), Mason argues that the ethical horizon of racial justice lies not in refining racial categories, but in abandoning them altogether. If race is no longer understood as an immutable inheritance or a politically sacrosanct essence, it begins to resemble something closer to an aesthetic affiliation—a way of situating oneself in history rather than a biological destiny.

In our postmodern world, identity is increasingly approached less as a fact to be discovered about oneself than as something one actively shapes through practices, styles, and forms of life. Identity, on this view, is not an essence to be authenticated but a project to be undertaken. Categories such as sex and race become materials for self‑formation rather than fixed coordinates of personhood.

Advances in biotechnology may one day give material form to what this postmodern trend already implies. Hormonal intervention, genetic insight, reproductive technologies, and future developments we can scarcely anticipate may render today’s disputes over sex classification largely unintelligible—producing forms of embodiment that satisfy even the most demanding biological criteria that skeptics now insist upon.

Liberalism is a solvent. It dissolved the bonds of slavery, cut the leash constraining women to the kitchen, and sundered the locks confining homosexuals in the closet. If liberalism has a telos, it is not the stabilization or fixing of identity categories, but their gradual undermining and subordination to self‑determination. The Constitution can decide whether states may protect women’s sports. It cannot decide, once and for all, what sex or race ultimately are. Any ruling in these cases will leave unresolved tensions—between ontology and administration, between inherited categories and chosen selves. Recognizing those limits is not a failure of law, but an acknowledgment of liberalism’s unfinished work, or rather its unfinished unworking.

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Dave Gilbert is a technologist and former visiting assistant professor of communication with interests at the intersection of technology, culture, and identity. Originally from rural Tennessee, he now lives in northern California with his photographer girlfriend and their four cats. Dave finds his greatest joy in bicycling through Big Sur and camping in the Mojave Desert. He is a founding member of Free Black Thought and writes for the Journal of FBT regularly. He shares his views on X here.