WASHINGTON - eTradeWire -- During Supreme Court oral arguments regarding female sporting events, there were frequent suggestions that male [M2F transgender] athletes who kept their testosterone levels very low - and therefore were arguably not as strong as most men - should be constitutionally entitled to compete against female athletes.

But this argument makes little sense regarding not only sports, but also regarding even fundamental constitutional rights, notes public interest law professor John Banzhaf.

For example, in athletic competitions where participation is limited to persons over a certain age - because athletic ability is known to decline significantly with age - someone in his 20s who identifies as an elderly person (a trans-senior?) can't participate, even if he conclusively proves that he is far less physically fit than all the older athletes against whom he wishes to compete, and claims to feel old.

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Although the Supreme Court has held that being able to marry is a fundamental constitutional right, all states require that only those above a certain age can marry.  This is to insure that those undertaking this important step have sufficient maturity and judgment.

But following the logic of advocates for transgender athletes before the Supreme Court, such age limits would constitute an unconstitutional violation of the Equal Protection Clause unless younger citizens who claim to feel much older are permitted to obtain an exception by proving that they possess maturity and judgment far in excess of their actual years.

For similar reasons, only persons above a certain age may purchase guns, even though the right to possess firearms is firmly set forth in the U.S. Constitution.  Obviously that statutory age limit is not unconstitutional simply because teens who might for some reason believe they are of age cannot prove that they have better judgment than most adults.

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As a Dickens character once remarked, "the law is a ass - a idiot."

But, notes the professor, the law is not so much of an ass as to require that every law which limits even fundamental constitutional rights, based upon immutable characteristics such as sex or age, must permit individuals to seek an exemption simply by claiming (or even showing) that they are an exception to the generalization upon which the law is based.

Therefore laws which simply limit the non-constitutionally-protected ability to compete in one athletic event rather than in another (e.g. on a women's team rather than on a men's team) are even more insulated from constitutional attack.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf