Little v. Hecox and West Virginia v. B.P.J.

Amici are Daniel Kodsi (B.A., B.Phil., and D.Phil., University of Oxford); John Maier (B.A., University of Oxford; M.Sc., London School of Economics); Robert P. George (B.A., Swarthmore College; J.D., M.T.S., Harvard University; D.Phil., B.C.L., D.C.L., and D.Litt., University of Oxford); and 21 other philosophers listed in Appendix A.

Amici share with the public at large an interest in seeing the law be formulated using clear, precise and principled distinctions, rather than unclear, vague and invidious ones. Consequently, they have an interest in seeing that the laws ensuring fairness in sports be formulated in sex-based terms, which are much clearer, more precise and more principled than any relevant alternatives.

Amici have a further interest in familiarizing the Court with a general philosophical distinction, between more and less “natural” categories, which in their professional judgement is highly relevant to problems of categorization in general, including in the natural sciences and mathematics. Recognizing this distinction enables a perspicuous explanation of why it is so costly to abandon sex categories in sports in favor of alternative categories to which ad hoc exceptions have been built in.

Summary of 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 facevalue interpretation, the statutes propose to organize sports in part around the sex categories: female (person) and male (person). ²

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.

Notes

1. No counsel for any party authored this brief in whole or in part, and no party or party’s counsel made a monetary contribution intended to fund the preparation or submission of this brief. The Witherspoon Institute made a monetary contribution to the preparation or submission of this brief.
2. On a simple view, which coheres with the argument in this brief, the terms “woman” and “girl,” and “man” and “boy,” pick out subsets of the sex categories female and male, respectively. See Daniel Kodsi, Unexceptional Sex, THE PHILOSOPHERS’ MAGAZINE (Sept. 16, 2024), https://philosophersmag.com/unexceptional-sex/ . For clarity, rigor, and to minimize the scope for confusion, however, this brief is uniformly written using the explicitly sex-based language of “male” and “female.”