There’s no doubt that the NCAA and corporations like Amazon engage in disgraceful bullying and blackmail to get their way on cultural issues like this one, but even on legal strategy, Noem is plainly wrong. While it’s true that a state will likely face lawsuits if it passes bills insisting on sex-exclusive sports, far from this being “a fight we can’t win,” as Noem so shortsightedly put it, litigation is unfortunately the best — in fact, probably the only — way out of the cage of transgender orthodoxy that is being constructed around us.
Ever since the Supreme Court’s decision in Bostock v. Clayton County (which, recall, was confined to employment-discrimination law), followed by the Biden administration’s announcement of its uncompromising transgender agenda, there has been a general skittishness in insisting on the biological distinctions between males and females. The overriding concern among some seems to be: What if we get sued? Yet, here, conservative lawmakers ought to think of the big picture. The more lawsuits, the better, since sooner or later one of them will make its way back up to the Supreme Court, where, on the issue of women’s athletics, there is plenty of reason to hope that justice and sanity will prevail.
Additionally, if the states fight back, they will also keep this issue in the court of public opinion, where they are also likely to win.