Neal McCluskey
In Tuesday’s Supreme Court oral arguments about two cases concerning transgender female athletes participating in women’s sports, Justice Brett Kavanugh sounded the right note. As SCOTUSblog reported:
Justice Brett Kavanaugh suggested (among other things) that the Supreme Court should stay out of the debate right now given the “scientific uncertainty” and the “strong assertions of equality interest on both sides.” “[G]iven that half the states are allowing it, allowing transgender girls and women to participate,” Kavanaugh posited, “why would we at this point … jump in and try to constitutionalize a rule for the whole country?”
Incorporating trans athletes into women’s sports is a relatively new and difficult social question. It involves mutually exclusive concerns about discrimination: Trans females see exclusion from women’s sports as discrimination; biological females see inclusion that way. This is just the kind of problem that, for justice and harmony, should be handled at the lowest levels possible. The more freedom individuals have to choose what they think is right, the less conflict we will have and the greater possibility for finding mutually satisfactory solutions.
Justice Kavanaugh perceived this on the federal level, which is the crux of the cases in front of the Court: Should Washington impose one solution on all states by requiring that trans athletes be included in women’s sports? Kavanaugh’s answer appears to be “no.” Given differing values and much uncertainty, federalism should be allowed to work by letting different states make their own decisions.
If you live in a state that makes a decision you do not agree with—indeed, that might affect you or your children directly—you can move to a different state. Of course, because most people cannot easily just pick up and move to another state, state-level decisionmaking is of limited help. This is why decisionmaking should occur at even lower levels, such as individual school districts, schools, or, best of all, families and educators through educational freedom programs such as education savings accounts or scholarship tax credits.
Unfortunately, the Trump administration seems to be moving in the opposite direction, at least within the public school system. The administration supports school choice, which is good, but yesterday launched investigations of 15 school districts and three colleges with the goal of prohibiting inclusion of trans female athletes in women’s sports. The administration has similarly pursued action against school districts that have allowed students to access facilities such as bathrooms and locker rooms consistent with their gender identities.
The Trump administration is not alone. The Obama and Biden administrations barged into debates about transgender students in the opposite direction of Trump. Indeed, that might be a significant reason why Trump was elected: Conservatives grew tired of having their values shunted aside by Washington.
Is endless social conflict at the federal level, which allows no one to escape unless they leave the country, really the best way to maximize harmony and equality under the law? As Justice Kavanaugh and others have perceived, it is not. The solution is more freedom for everyone.