Becky Pepper-jackson

And it seems to be discrediting, or tearing down, or doing a disservice to the history of as-applied challenges.

And it feels paradoxical or unfair that in Chiles, that question, the same court, the same composition of court justices, you know, the same time period, is like, "No, no, that's totally fine in this setting, um, even if just one person might be harmed by this, and it's not broadly problematic or, or broadly it fulfills the state's stated, um, interest, that's fine." But in this other context, um, with trans youth in sports, where, for example, Pepe-- Pep- um, Becky Pepper Jackson, the, the athlete in West Virginia, that just because one person who maybe didn't, who didn't go through endogenous puberty, who has been on puberty blockers and hormones, maybe this one, um, youth, that it would be unconstitutional for her, that doesn't mean we should throw out the, the law writ large.

And that level of hypocrisy feels difficult to swallow, and I'm wondering if you have any thoughts on that, Professor.

Um, well, I, I think it's a, an important point.

I, um... and I'm still digesting the, [chuckles] this morning's opinion.

I, I... as I read the majority opinion, what they-- So, so part of the argument, um, raised by Becky Pepper Jackson, Jackson's lawyer was that even if bans on, um, trans female participation in sports are generally okay under sex discrimination law, as applied to someone who had had, um, puberty blockers and hormonal inter-interventions, um, uh, who didn't, a-and therefore may not have had any physical advantages, uh, that a, uh, a prototypical, um, uh, uh, um, uh, male's assigned male at birth might, might have, um, the law negatively impacts her.

Um, and they said that basically, uh, as Thomas explained, that that would-- diving down into that level of detail would transform equal protection sex discrimination law from intermediate scrutiny into strict scrutiny because it would require the government to show, um, you know, that the law was narrowly tailored, right? N-No broader than necessary, okay? Which is not what intermediate scrutiny generally requires.

It requires, right, um, a substantial relationship, right? Some, some-- It tolerates some overbreadth, okay? Um, not a lot, but some.