This makes sense: just as religion or skin color does not affect one’s ability to perform a job, neither does gender identity.

However, the movement has also pushed for equity-driven changes that defy biological reality and conflict with the existing sex-based protections women have fought for. This is where things begin to unravel.

In U.S. v. Skrmetti, the Department of Justice is asking the Supreme Court to afford “gender identity” the same heightened review standard that “sex” currently receives, which it hopes will thereby render state laws that ban “gender-affirming” medical treatment for minors unconstitutional. But our legal system’s framework for sex-based protections is built on the recognition of biological differences between men and women. 

Laws that discriminate based on sex are subjected to “intermediate scrutiny,” a judicial test that allows for sex-based distinctions when they serve an important purpose, such as preserving fairness in women’s sports by preventing men from competing on female teams. If a sex-based discriminatory law is reasonably related to achieving an important interest — such as providing opportunities for females to participate and compete fairly in athletics — the court will find that the law is constitutional. 

Since “gender identity” occurs outside the confines of objective biological reality, and often renders the meaning of the words “men” and “women” interchangeable, it cannot logically be classified on par with sex. To classify it that way would eliminate all current legal distinctions based on sex, which is why the Supreme Court is highly unlikely to do what the Justice Department has asked. It is a losing proposition from a legal standpoint, precisely because it puts transgender rights directly at odds with women’s rights, making the two mutually exclusive.