West Virginia v. B. P. J. · ¶204

The majority’s analysis looks nothing like the judicial check necessary under heightened scrutiny. For example, the majority says that the science “is not settled in [B. P. J.’s] direction at this time.” Ante, at 24. For support, it cites a study published after oral argument in this case. Ibid. It should go without saying that that study is not in the record before the Court. From here, the majority points to how various athletic organizations, like the National Collegiate Athletic Association and the United States Olympic & Paralympic Committee, have adopted policies consistent with West Virginia’s ban. Ante, at 25. Yet the majority ignores that those two organizations did so after the President issued Executive Order No. 14201, which threatened to take away federal funding from any educational program that allowed transgender girls and women to participate on girls’ and women’s…

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