DOJ Says Allowing Transgender Athletes To Compete Against Females Is “Fundamentally Unfair”

Kerri Kupec of the DOJ tweeted Friday:

“Allowing biological males to compete in all-female sports is fundamentally unfair to female athletes. Under the Constitution, the Equal Protection Clause allows Idaho to recognize the physiological differences between the biological sexes in athletics.”

The Department of Justice Files Statement of Interest Defending the Constitutionality of Idaho’s Fairness in Women’s Sports Act

The Department of Justice today filed a statement of interest in Idaho federal court defending Idaho’s Fairness in Women’s Sports Act against a challenge under the Constitution’s Equal Protection Clause.  

“Allowing biological males to compete in all-female sports is fundamentally unfair to female athletes” said Attorney General William P. Barr.  “Under the Constitution, the Equal Protection Clause allows Idaho to recognize the physiological differences between the biological sexes in athletics. 

Because of these differences, the Fairness Act’s limiting of certain athletic teams to biological females provides equal protection.  This limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place — namely, the goal of ensuring that biological females have equal athletic opportunities.  Single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.”

In its statement of interest, the United States explains that the Equal Protection Clause of the Constitution does not require States to abandon their efforts to provide biological women with equal opportunity to compete for, and enjoy the life-long benefits that flow from, participation in school athletics in order to accommodate the team preferences of transgender athletes. 

Put differently, the Constitution does not require Idaho to provide the special treatment plaintiffs request, under which biological males are allowed to compete against biological females if and only if the biological males are transgender.