West Virginia v. B. P. J. · ¶201

Stepping back from contending that the factual dispute does not matter at all, the majority suggests that even if it were relevant, B. P. J. could not prevail. That is because, the majority says, there is an ongoing scientific debate over whether transgender girls who have not experienced an endogenous male puberty and who receive gender-affirming treatment possess an athletic advantage inherent to cisgender men. In the majority’s view, the Court should be “cautious about swooping in and invalidating laws” that implicate such uncertainty and should instead defer to the legislature’s “considered policy judgments.” Ante, at 24–25. Of course, even when applying heightened scrutiny, courts should give deference to what legislatures and experts have to say when dealing with scientific issues. Even so, the deference afforded is not conclusive. Nor does the mere existence of scientific debate…

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