What Do We Do When People Are Equal, But Not Alike?

Source: The Dispatch | March 20, 2022 | David French

Lia Thomas and a proper understanding of American equality.

One of my favorite things about The Dispatch is that our members have a soft spot for nerds, especially for classical liberal nerds. And as I’ve watched the controversy unfold about the University of Pennsylvania’s transgender swimming champion, I’ve been doing what nerds do—thinking about the dispute in terms of the legal and moral foundations of our pluralistic republic. 

For those who haven’t followed, a trans woman named Lia Thomas just won the women’s 500-meter freestyle championship, and the race wasn’t close. Before this year, Thomas raced as a man in both high school and college. While competing as a man, Thomas was a fine swimmer, but nowhere near the NCAA championship level.

Here’s where I am on the dispute. In the vast majority of life circumstances, I do not believe that a trans person should face discrimination because they are trans. But there are limited circumstances where biological realities mean that some distinctions are not only wise, they protect other classes of Americans from both unfairness and intrusion on their rights. 

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That’s a long wind-up. Now here’s the pitch. Let’s talk about equality, specifically the concept of “equal protection.” The 14th Amendment’s equal protection clause (which again reflects American morality) does not codify a principle that says, “all people will be treated equally at all times by all laws.” That would lead to absurd results. For example, should the government permit nine-year-olds to drive? Or, salient for our purposes, should it be illegal for public schools to have men’s and women’s sports leagues? Should everyone have to play together and may the best man (or woman) win?

Instead, the legal and moral principle is a bit different—similarly situated people should be treated alike. To take the examples above, when it comes to the ability to drive responsibly, children and adults aren’t similarly situated. But men and women are, regardless of race or sexual orientation. A rational age-based driving restriction doesn’t violate equal protection; a sex, race, or sexual orientation-based restriction would.

Indeed, many of America’s bigotries are located in attempts to wrongly deny similarity. Racist pseudoscience tried to convince Americans that black or Native American or other marginalized communities “weren’t like us.” One of the enduring contributions of critical race theory scholarship (cover your eyes if CRT sets you off!) is the demonstration of the ways in which racial categories have been incredibly malleable, “socially constructed” you might say, to facilitate the “othering” of men and women who are very much like ourselves.

Pseudoscience was also used to relegate women to second-class status, with claims of “hysteria” or “emotionalism” that would render them unfit, say, to vote or lead.

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It’s true that certain interventions, such as suppressing testosterone, can ameliorate the differences between trans women and women—Lia Thomas is not the fastest swimmer ever to compete in women’s freestyle, and even finished fifth in the 200 meter freestyle—but they cannot eliminate it entirely. In the aggregate, differences will remain, and they can be profound. Performing in women’s meets substantially improved Thomas’s overall results. 

Moreover, athletics are not the only location where trans women and women are not “similarly situated.” Consider locker rooms, for example. If a man walked in and revealed his genitalia, that would be indecent exposure. If a trans woman exposes a penis, is that somehow different? Is a woman bigoted if she doesn’t want to see biologically male genitalia, even if that genitalia belongs to a trans woman? 

And yes, these problems can be ameliorated by prudent privacy measures. They should be ameliorated. But calling attention to them isn’t bigotry. It’s not hate. It’s entirely consistent with treating women fairly. 

Again, drawing distinctions—even among protected classes of Americans—isn’t alien to American law or to American morality, especially when it comes to sex. Indeed, even within equal protection law itself, distinctions made on the basis of sex are subject to a lower level of judicial scrutiny than distinctions made on the basis of race.

Properly applied, these distinctions aren’t a cruelty, but a kindness. If our law obliterated all lines between male and female, including the distinction between men’s and women’s sports, women would be shoved almost entirely out of sports that require a combination of speed, strength, and power. If our law opened up intimate spaces to men and women, it would disproportionately expose women to male predation and harassment.

Thankfully, our laws aren’t that absurd, and there’s no meaningful constituency arguing that they should be that absurd. Instead, the argument is that a small population—trans women—are women in every way that should matter in culture, morality, and law. 

Yet pretending there are no distinctions between trans women and biological women isn’t always a kindness. It can be a cruelty, especially in athletics and certain kinds of intimate spaces. Trans women and women are not similarly situated in all respects. 

I spent time explaining the legal and moral basis for American conceptions of equality for a good reason—to remind us that we have a legal and moral structure for handling American diversity and pluralism. Critically, that structure includes not just a commitment to equality but also to liberty. 

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When our legal and moral system function, there’s a certain beautiful simplicity to it. There’s a fundamental commitment to liberty—most notably to the rights outlined in the Bill of Rights, including the freedom of speech. And there’s a fundamental commitment to equality—to treating similarly situated people alike. Breach either commitment as a matter of law, and you breach the American social compact. Breach either commitment culturally, and you can still inflict profound harm.

Lia Thomas and other trans individuals are human beings created in the image of God. They are “created equal,” but they are not created the same in all meaningful respects as the women they compete against or share locker rooms with. Our nation and culture can respect their dignity and protect their rights without denying the distinctions that really do make a difference.

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