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On The Other Side Of The Looking Glass With B.P.J. v. West Virginia

A debate about the meaning of "biological sex" on NPR.

Josh Blackman | 6.30.2026 10:05 PM

This morning, I received an invitation to go on AirTalk, a Los Angeles NPR show, to discuss B.P.J. v. West Virginia. I was somewhat hesitant, as I knew this would not be a friendly forum. Still, I agred. I've gone on Larry Mantle's show many times over the years, and have always found him to be a fair host. The other guest would be Jennifer C. Pizer, Chief Legal Officer and Eden/Rushing Chair for Lambda Legal. Pizer was counsel in B.P.J.

The interview was surreal. I felt like I was on the other side the looking glass. Much of the discussion turned on my use of the term "biological male." I encourage you to listen to the entire exchange, though for those who prefer to read, I've included excerpts from the transcript below. I add some brief comments at the end.

Jennifer Pizer:  I think there were some real mistakes in the way the analysis was done in this case, but the bottom line is that the, the equal protection test, when it comes to sex discrimination, the court has used what's called intermediate scrutiny, so the government can justify different treatment of women and men as groups, if the government can identify an important objective that it is trying to further with this distinction, and if the classification it's using is closely enough related to that goal, and in this instance, Justice Kavanaugh said that, well, they're interested interests in competitive fairness, as well as physical safety, those are important, and that this, this distinction based on biology, as he defines it, as he seems to understand it, that it's closely enough related, and the fact that that the two transgender girls, or young woman, in the case of the Hecox case, the fact that that they are excluded without a careful look at who they actually are and whether they, whether they have any, any physical advantages based on having whatever the sex was designated at birth, that's not to be considered, which we think is, which we think is an error, but that was the main basis of of the majority decision.

Larry Mantle: Jenny does, does, and maybe I'm missing the mark here, but does much of this come down to the lens of anatomy versus gender identity? Or are these legal issues that you're talking about, do those take precedence over this sort of issue of, of someone's, you know, anatomically what they look like versus how they identify.

Jennifer Pizer: That's the core question for sure. I think the what the majority is doing is using a very simplified, simplified to the point of being being inaccurate understanding of the term that it keeps being used is is biological sex, somebody's biologically male or biologically female, but but sex is actually, and the way our bodies develop is made up of lots of different things, so the the classification that these state laws are using is what was the sex designated at birth and written on your birth certificate. Well, that's based on some observation of the infant's anatomy, but then we develop based on what are our chromosomes. How........

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