Dobbs and Now B.P.J.

Reva Siegel & Mary Ziegler Alliance Defending Freedom (ADF), the conservative Christian legal organization that litigated Dobbs, is now trying to do for the law of equal protection what it has done for the law of due process. Consider the cases it has brought to the Court in West Virginia v. B.P.J. and United States v. Skrmetti. In B.P.J., the Court upheld, against equal-protection challenge, laws prohibiting transgender athletes from participating on girls teams. B.P.J. depicts its holding as a minor exception to the Court’s sex-discrimination jurisprudence, one that reflects the unique context of sports. But there is a problem with this account. B.P.J. represents the third minor exception that the Court has made in its equal protection sex discrimination cases in the past year. In cases involving transgender individuals—United States v. Skrmetti, Orr v. Trump, and B.P.J.—the Court keeps introducing new exceptions to intermediate scrutiny that have no obvious connection to one…