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

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-yard 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. 

To understand my reasoning, let’s go back to the founding and guiding texts of the American republic—texts that don’t just create specific legal doctrines but embody a particular biblically-informed morality about the dignity and worth of all people. 

The founding declaration can be quoted by heart: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Note that this sentence proclaims not just people have equal status (equality isn’t enough), but also possess inherent dignity, which is recognized and protected through our unalienable rights.  

The original Constitution and Bill of Rights didn’t live up to the promise of the Declaration. They explicitly denied legal equality to American slaves. Moreover, by limiting the application of the Bill of Rights to the small and relatively weak federal government, while leaving states free to wield their power with little federal constitutional restraint, the Constitution permitted and enabled immense state abuse. 

Just as the Civil War revolutionized American life by forcibly ending slavery, the Civil War Amendments, over time, revolutionized American governance. The Fourteenth Amendment in particular introduced a guarantee of “equal protection under the law,” provided explicit protection against any state that would abridge the “privileges or immunities of citizens of the United States,” and prevented any state from depriving citizens of “life, liberty, or property” without due process of laws.

Together, the Civil War and Civil War amendments were indispensable in making America the country we know today. It didn’t happen all at once (it took generations to obliterate Jim Crow, for example), but over time they imprinted upon the American conscience some basic principles and obligations that we impute to virtually every single important institution in American life. 

Take due process, for example. As a technical matter, the Constitution’s due process clauses impose due process obligations only on governments. But when powerful private institutions, including private universities, eliminate due process, it creates a moral outcry. Depriving a person of due process might be legal, but it’s often wrong.  

Similarly, the First Amendment requires only governments to protect free speech. But when powerful private institutions suppress debate, it also creates a moral outcry. Free speech isn’t just a legal value. It’s of primary cultural importance, and a private institution punishing a person for speech uttered in good faith might be legal, but it’s often wrong.

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. 

Why work so hard to deny similarity? Because the instant you grant that we are, for all relevant purposes, alike, then the powerful legal and moral imperative of equality locks in. This is an ancient appeal. Think of the immortal lines from Shakespeare’s Merchant of Venice, when the Jewish character Shylock says:

I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer, as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? if you poison us, do we not die? and if you wrong us, shall we not revenge?

Racial epithets are so dark and dangerous because they say in the crudest possible terms, “You are not like me.” In response to the crudest of slurs, the legendary black writer James Baldwin famously and simply declared, “I am a man.”

Now let’s bring these principles back to our present controversy. Let’s imagine a trans employee named “Gina.” At work Gina is remarkably effective, better than many peers. Gina’s employee evaluations are sterling. Customers love interacting with Gina. Then, one day a new manager discovers that Gina was once called George. Driven by animosity or disagreement, he first sidelines and then fires one of his best employees. 

This action should offend our moral commitment to equality. In every way that mattered—job performance, customer interactions, kindness to colleagues—Gina was similar to peer employees. The job wasn’t supposed to belong to a competent adult woman or a man, but rather to a competent adult person, and when that competent adult person is fired for reasons that have nothing to do with job performance and everything to do with gender identity, then similarly situated people have not been treated alike. 

But let’s put Gina in a different context, a competitive women’s swim meet. Is Gina or another trans woman similarly situated to female competitors? No, the female swimmers did not go through male puberty. They do not have male bone structure. In fact, under traditional equal protection categories, treating a competitive women’s swim meet as both a male and female space could violate the principle of treating similarly situated people alike and result in exploiting or harming the vulnerable class. 

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 yard 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. 

Last week a collection of Yale law students protested and disrupted an appearance by my friend, Alliance Defending Freedom general counsel Kristen Waggoner. ADF has represented female athletes who’ve brought a lawsuit arguing that the inclusion of trans female athletes—athletes born biologically male—in women’s sports constitutes discrimination against women under federal law. 

A Connecticut federal judge dismissed the case, and it’s being appealed to the Second Circuit Court of Appeals. We don’t yet know the ultimate outcome. But the case raises serious issues of law, and Kristen is a serious person who has argued and won at the Supreme Court. 

It is entirely fair to protest Kristen’s appearance. I know Kristen well enough to know that she not only supports the right to protest her speech, she welcomes debate. It is fundamentally wrong, however, to attempt to disrupt her ability to make her case. If protesters believe that Kristen advocates violating moral commitments to equality, they’re responding by violating moral commitments to liberty. 

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. 

One more thing …

Curtis and I had a great time recording the latest Good Faith podcast. We hosted my friends David Brooks and Peter Wehner for a wide-ranging conversation about the challenges in the Evangelical church, David’s own path to faith in Christ, and the points of light that give us hope. 

I think you’ll enjoy the conversation. If you haven’t listened to the podcast yet, now is a great time to start. 

One last thing …

If you follow this newsletter at all, you know I love Brooke Ligertwood’s music. I’ve shared her song “Nineveh” twice, and I still listen to it on loop. She’s put out a bunch of new songs, and this one has just joined my playlist. I hope you like it as much as I do:

Correction, March 20: This piece initially referred to the races that Lia Thomas competed in in meters. NCAA swimming competitions are conducted in yards.