Ontology in the Courtroom
On James Taranto’s Case That the Supreme Court Should “Say It Plainly”
An analysis essay · 25 July 2026
I. The Opening Move
James Taranto’s Wall Street Journal essay begins with a detail that does more argumentative work than its modest presentation suggests. A white woman who grew up outside Houston in the Jim Crow years recalls discovering that her family’s gas station had three restrooms — women, men, and “colored” — and remembers being appalled that black patrons of both sexes were made to share one. Her stated objection was its rudeness.
Taranto’s reframing is the essay’s hinge. The arrangement was not merely rude; it was an additional, sex-specific injury layered onto racial subordination. By declining to sex-segregate the “colored” facility, the regime denied black women the privacy, safety, and respectability that white women were granted as a matter of course. Segregation harmed them by withholding a distinction, not only by imposing one.
From this, Taranto derives the thesis the rest of the piece elaborates: racial equality and sexual equality are structurally different projects. Racial equality is achieved by eliminating legal and social distinctions based on race. Sexual equality, he argues, requires that certain distinctions between men and women be acknowledged and maintained. Treating the two as identical projects — as though the civil-rights template applies without modification — produces category error.
This is a genuinely effective opening, and it is worth noticing why. It recruits an unimpeachable moral consensus (Jim Crow was evil) in service of a contested conclusion (some sex distinctions must be preserved), and it does so by finding a case where the two commitments point the same direction. Readers who would resist the thesis stated abstractly are led to it through a door they have already walked through.
II. The Argument Reconstructed
Stripped to its structure, the essay advances a chain of five claims.
First, the asymmetry thesis above: sex is unlike race in that the relevant differences are functional, not merely ascribed.
Second, a biological ground for that asymmetry. Taranto locates it in sexual dimorphism and, beneath that, in anisogamy — the fusion of large and small gametes that characterizes sexual reproduction across essentially all animals and most multicellular plants. Only females ovulate, menstruate, gestate, and give birth; male physiology, freed from those demands, develops greater capacity for mass and muscle. Medical intervention can suppress reproductive function, alter secondary characteristics, and construct approximations of opposite-sex anatomy, but it cannot produce a functioning opposite-sex reproductive system.
Third, a legal application. Where those bodily differences bear on privacy, safety, and fairness — bathrooms, locker rooms, sleeping quarters, prisons, and competitive sport — separation is warranted. Taranto notes that the Court accepted a version of this in U.S. v. Virginia (1996): even in striking down VMI’s male-only admissions, Ginsburg acknowledged that admitting women would require accommodations for privacy in living arrangements and adjustments to physical training. He reads West Virginia v. B.P.J. — decided 6–3 on June 30, 2026, with Kavanaugh writing — as applying the same principle to athletics, holding that neither Title IX nor the Equal Protection Clause bars states from restricting girls’ teams to biological females.
Fourth, the identification of the real question. Beneath the sprawl of litigation over speech, religious liberty, family law, medical standards, records, and military policy lies a single question of ontology: is there any objective sense in which a man can become a woman? Taranto observes that in B.P.J. only Thomas and Jackson engaged it squarely — Thomas concurring that males with gender dysphoria are not girls even if they believe they are, Jackson dissenting that the law forces B.P.J. to live as a boy though she is a girl. Kavanaugh, by contrast, wrote around it with visible care.
Fifth, the political stakes, framed through Jefferson. A man is free to believe he is a woman; Jefferson’s neighbor was free to believe in twenty gods, since the belief neither picked his pocket nor broke his leg. Tyranny enters when the state compels others to participate in the belief — to offer sacrifices at the neighbor’s altar. Taranto’s contention is that in most current controversies, it is not the transgender claimant seeking merely to be left alone.
III. What the Essay Does Well
Three features deserve credit independent of one’s view of the conclusion.
The pronoun forensics are the sharpest thing in the piece. Taranto reads Kavanaugh’s opinion the way a textual critic reads a manuscript: each plaintiff introduced as a biological male who identifies as female, “male” qualified with “biological” at every recurrence, no singular personal pronoun for either plaintiff anywhere in twenty-nine pages, “she” entirely absent, “her” appearing only in reference to undisputedly female athletes. He notes that the opinion’s lone masculine pronoun attaches to a hypothetical male who identifies as male, while the hypothetical counterpart identifying as female receives none. Whatever one concludes from it, this is careful work, and the inference is hard to resist: the majority was navigating around something it had decided not to touch. Taranto’s image — as if touching the question might break something fragile — is well chosen.
The Jefferson distinction is the essay’s most portable contribution, and it is analytically clean in a way that much writing on this subject is not. The line between tolerating a belief and being conscripted into affirming it is a recognizable liberal principle, not a partisan one, and it locates the actual fault line in most of these disputes more precisely than the language of rights and identity typically manages.
The rule-of-law framing, anchored in Justice Butler’s 1929 observation that legislative fiat cannot substitute for fact in judicial determinations of life, liberty, or property, states a principle few would reject in the abstract: law that floats free of reason and reality becomes an instrument of domination rather than justice. Taranto’s closing turn — that the Court understood this when it repudiated separate-but-equal — attempts to bring the Jim Crow frame full circle.
IV. Where the Argument Strains
The essay’s load-bearing weakness is a slide between two different claims, and the slide occurs in a single sentence: “Science therefore demonstrates that Justice Thomas is right: A man who believes he is a woman is mistaken.”
What the biology establishes is narrower than what that sentence asserts. Anisogamy and the irreversibility of gametic sex are, as far as they go, not seriously contested — no course of hormones or surgery produces functional ova or sperm of the other type. But that fact settles a question about reproductive category. Whether it settles the meaning of the word woman across every legal and social context depends on a prior decision about what the word is for — and that decision is definitional, not empirical.
Critics of Taranto’s position generally accept the biological premise and deny that it does the work he assigns it. Their argument is that “woman” functions in ordinary and legal usage as a cluster concept — reproductive, anatomical, hormonal, social, psychological, documentary — and that different contexts properly weight different elements. On this view, insisting that the gametic criterion governs universally is not deference to reality but a choice among criteria, presented as though no choice were being made.
This suggests that Taranto’s case is strongest exactly where he first plants it and weakens as it generalizes. Where dimorphism is causally relevant to the interest at stake — the injury risk and performance gap in contact and competitive sport, the vulnerability differential in prison housing, the privacy interest in communal undress — the argument from bodily difference is direct and hard to answer, and it does not require any metaphysical resolution to succeed. Where the connection to reproductive function is attenuated — pronoun use in ordinary speech, the sex marker on a driver’s license, passport, or personnel record — the same argument has considerably less purchase, because the difference that grounds it is doing no work in the context.
Taranto’s demand that the Court answer the ontological question “plainly” would sweep all of these into one holding. That is precisely the objection to it.
V. The Case for Kavanaugh’s Evasion
Taranto treats the majority’s silence as a failure of nerve. There is a serious argument that it was a discipline rather than a fault, and Taranto half-concedes it — noting that judicial restraint ordinarily counsels against deciding broad philosophical questions before insisting that this one has been sharpened into an urgent controversy that demands an answer.
But the narrow holding did the necessary legal work. If “sex” in Title IX means biological sex, and if separate teams are the practical mechanism by which Title IX’s equal-opportunity mandate is fulfilled in competitive and contact sport, then states may restrict girls’ teams to biological females — and none of that requires the Court to legislate on the nature of womanhood. A ruling that ventured further would bind future courts on questions with no factual record before them, in a domain where the Court has repeatedly been burned by premature breadth.
It is also worth noting a limit Taranto’s forecast passes over. The holding is permissive, not mandatory: the Court removed a constitutional and statutory obstacle to state bans without requiring any state to adopt one. Taranto predicts that the logic leads “inexorably” to a nationwide requirement that boys and men be excluded from female teams, and he may be right about the trajectory — the Justice Department’s suits against California, Maine, and Minnesota will test it. But the decision does not itself compel that result, and to treat the inference as inexorable is to state a prediction in the grammar of a holding.
Two further complications go unaddressed. The plaintiffs’ argument was substantially about individualized treatment — that B.P.J., who received puberty blockers before male puberty, presents a different case from a post-pubertal male athlete, and that categorical bans sweep in cases where the fairness rationale does not apply. One may reject that argument, but the essay does not engage it. And disorders of sexual development, though rare, complicate any claim that the categories are everywhere crisp; defenders of the binary reasonably respond that hard cases at the margin do not establish a spectrum, but the response is owed.
VI. The Historical Irony
The essay’s Jim Crow frame carries a liability its author does not acknowledge. The doctrines Taranto invokes as the model of law corrected by reality — Plessy repudiated, separate-but-equal undone — were themselves sustained in their day by confident appeals to nature, biology, and incontrovertible fact. So was the exclusion of women from the professions: Bradwell v. Illinois (1873) rested on the claimed nature of womanhood, and Muller v. Oregon (1908) on women’s physical constitution.
This does not refute Taranto. Sometimes the appeal to biological reality is correct, and the fact that bad arguments have worn the same clothing does not discredit good ones. But it does mean that “grounded in fundamental and incontrovertible reality” — the phrasing of the 2025 executive order he quotes approvingly — is not self-validating. Every party to this dispute believes itself on the side of reality. The claim requires the argument; it cannot substitute for it.
VII. The Problem That Survives the Objections
Taranto’s strongest single passage is his weakest-looking one: the extended account of a California prisoner, transferred to a women’s facility under a 2020 state law, later charged with raping two fellow inmates and subsequently moved to a men’s prison. Taranto reports that the trial judge nonetheless ordered prosecutors to honor the defendant’s preferred pronouns, and reserved the question of what she termed guardrails for witnesses — whether the alleged victims may be constrained in how they describe their assailant when they testify. The defendant has pleaded not guilty and is scheduled for trial.
Read as an argument from a single case to a general policy, this is weak, and the essay is vulnerable to the standard objection: the incidence data matter, and transgender inmates housed according to birth sex face documented elevated risk of assault themselves. Housing policy is a genuine problem of competing vulnerabilities, not a one-sided one.
But that is not the strongest reading. The courtroom detail raises a distinct and much harder question, and it is one that people who reject Taranto’s ontology should still find troubling: whether a witness testifying to her own rape can be directed by a court in the vocabulary she uses to describe what happened to her. That is a question about compelled speech, the integrity of testimony, and the state’s authority over the description of contested facts in its own proceedings. It survives disagreement about everything else in the essay, and it is where Taranto’s Jefferson principle bites hardest.
VIII. Conclusion
The essay’s durable contributions are two: the asymmetry thesis, which correctly identifies that the civil-rights template does not transfer to sex without modification, and the belief-versus-coercion distinction, which locates the operative question more precisely than the usual vocabulary allows. Both deserve to survive the argument they appear in.
Its vulnerability is the move from a real and uncontested biological fact to a universal definitional conclusion — treating a question that is partly about which criterion should govern which context as though it were fully settled by embryology. The strongest version of Taranto’s own case may be the narrower one he declines: that in the domains where bodily difference is causally relevant to privacy, safety, and fairness, the law may and often should track biological sex, and that this is sufficient to decide the cases actually before the courts without any judicial pronouncement on metaphysics.
Whether the Court should nonetheless say it plainly is the real disagreement, and it is not primarily a disagreement about biology. It is a disagreement about what courts are for — whether their proper function is to resolve the foundational question a divided society cannot resolve politically, or to decide the narrowest ground sufficient to the case and leave the larger question to the people. Taranto wants the first. The majority in B.P.J., conspicuously and by every indication deliberately, chose the second.
Note on sources: the account of the June 30, 2026 ruling and its scope reflects contemporaneous reporting (CBS News, Fox News) and analyses from both the ACLU and the National Center for LGBTQ Rights, the latter emphasizing that the holding is permissive rather than mandatory. Characterizations of the separate opinions vary slightly across sources; several describe the Sotomayor and Jackson opinions as concurring in part and dissenting in part rather than as straightforward dissents. Details of the California criminal case are as reported in the Taranto essay; the defendant has pleaded not guilty and the charges remain unproven.
Common Sense Rebuttal:
The WSJ opinion piece argued for common sense in identification, speech, privacy, dignity, and competition matters involving a person’s gender status. A call to have the courts rule on such things and let the states decide is a common Politically Correct and Libertarian stance.
The question is what is real? We know a woman when we see her. A man dressed up as a woman, surgically altered to be like a woman in superficial ways, who identifies as a woman, is not a woman. The question is, “What does it hurt to let him pretend to be a her?” The answer is, it offends the God who created him. He created them male and female. He did not give man the option to decide who is male and who is female. We live in God’s world, and the first person to please is God, then neighbor and self. If the only person you are pleasing is yourself, then you have your priorities incorrectly calibrated, and you will suffer. Should we, the people, the State, the loved ones, the community, pander to a person who is gender dysphoric and support him in his error of belief? I do not believe we serve that person by catering to a delusion. There may be ways to speak to such an individual that can help them make the transition to mental health, which is another way of saying, transition to Godly thinking, feeling, and believing. To pretend there is even a debate on such an issue is to give dignity/significance/credibility to a cause which deserves understanding, but not accommodation.